December 2009 Cases Decided by the First Court of Appeals
(Tex. App.- Houston [1st Dist.] 2009)
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December 2009 Decisions and Opinion Release Dates:  

December 1, 3, 4, 7, 10, 11, 14, 17, 22, 23, 28, 30, 31, 2009  

Released Opinions

December 31, 2009  

Civil Causes Decided:

Wilstein v. Dernick Resources, Inc. (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Keyes)
(
limitations and fraudulent concealment, breach of fiduciary duty and fraud, public record, constructive notice)
REVERSE TC JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS:
Opinion by
Justice Evelyn Keyes    
Before Justices Keyes, Alcala and Hanks   
01-07-00491-CV   David Wilstein, and Leonard Wilstein, Individually and as Trustee
v. Dernick Resources, Inc.,   
Appeal from 164th District Court of Harris County
Trial Court Judge:
Hon. Martha Hill Jamison

Klentzman v. Brady (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Taft)(defamation, media libel)
(fault, falsity, and substantial truth in libel cases involving media defendants, non-actionable opinion,
actual malice plaintiff's status as a limited purpose public figure)
AFFIRM TC JUDGMENT: Opinion by Justice Taft  
Before Justices Taft, Keyes and Alcala   
01-07-00520-CV  LeaAnne Klentzman and Carter Publications, Inc. d/b/a The West Fort Bend Star, Inc. v.
Wade Brady   
Appeal from 240th District Court of Fort Bend County
Trial Court Judge: Hon. Thomas R. Culver III

Gordon v. Allen (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Keyes)(errors on appeal)
“[A]n appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment.” Britton v.
Tex. Dep’t of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.). If an appellant does not assign
any error to an independent ground that, if meritorious, would fully support the complained-of ruling or judgment, we must
accept the validity of that unchallenged independent ground and affirm the ruling or judgment. Id. at 680–81 (“This rule is based
on the premise that an appellate court normally cannot alter an erroneous judgment in favor of an appellant in a civil case who
does not challenge that error on appeal.”) (citing Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993)). Because Gordon did not
attack other independent grounds that, if meritorious, would fully support the trial court’s rulings, we accept the validity of the
unchallenged independent grounds.
AFFIRM TC JUDGMENT: Opinion by Justice Keyes    
Before Justices Keyes, Alcala and Hanks   
01-08-00435-CV Ronald X. Gordon v. Donald Allen, Marvin & Doris Bennett   
Appeal from 405th District Court of Galveston County
Trial Court Judge: Hon. Wayne J. Mallia

Brejon v. Johnson-Brejon (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Massengale)
(motion to modify child support, material and substantial change in circumstances, attorney's fees order void)
AFFIRM TC JUDGMENT: Opinion by
Justice Massengale    
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00642-CV  Phillipe J. Brejon v. Lia M. Johnson-Brejon   
Appeal from 310th District Court of Harris County
Trial Court Judge:
The Honorable Lisa Millard

City of Houston v. Guthrie dba Freedom 2009 Fireworks (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)
(Hanks)(
accelerated interlocutory appeal pursuant to Section 51.014(a)(8) of the Texas Civil Practice and
Remedies Code, filed by Appellants complain the trial court wrongly denied their pleas to the jurisdiction, ban
the sale of fireworks outside the City's limits where the businesses and the real property are located)
This is an accelerated interlocutory appeal pursuant to Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code,
filed by Appellants, The City of Houston, Texas ("the City"), Harris County Municipal Utility District 152 ("MUD 152"), and Harris
County Municipal Utility District 157, and Harris County Municipal Utility 132 ("MUDs 157 and 132"). Appellants complain the trial
court wrongly denied their pleas to the jurisdiction. Appellees Sarges Fireworks, Fireworks Center 50, LLC, and Freedom 2000
Fireworks ("Fireworks Operators") own and operate fireworks stands outside the City's limits. Appellees Metro Church and Gulf
Coast Avenue C, LLC ("Property Owners"), (1) are the owners of the real property leased to these businesses. Fireworks
Operators and Property Owners filed this suit challenging the City's and MUDs' use of certain strategic partnership agreements
and the Houston City Fire Code to ban the sale of fireworks outside the City's limits where the businesses and the real property
are located. We reverse, in part, and affirm, in part, the trial court's denial of the pleas to the jurisdiction. We remand this cause
to the trial courts for proceedings consistent with this opinion.
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Hanks    
Before Judge Wilson, Justices Alcala and Hanks   
01-08-00712-CV  The City of Houston, Houston, Texas; Municipal Utility District 132; Municipal Utility District
157 and Municipal Utility District 152 v. Joel Guthrie d/b/a Sarges Fireworks, Fireworks Center 50, LLC, Paul
Dewey Jones d/b/a Freedom 2000 Fireworks, Metro Church and Gulf Coast Avenue C, LLC   Appeal from
269th District Court of Harris County
Trial Court Judge:
Hon. John T. Wooldridge

Medina v. Benkiser (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)
(
trial court had no jurisdiction on modify judgment and add attorney's fee award after appeal completed)
VACATE TRIAL COUR JUDGMENT AND DISMISS CASE: Opinion by
Justice Hanks    
Before Justices Keyes, Alcala and Hanks   
01-08-00777-CV  Debra Medina, Mallory Miller, Jr., Dustan Costine, Chad Creighton, Richard Wyatt and Kay
Fisher v. Tina Benkiser and The Republican Party of Texas   
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd

Brejon v. Brejon (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Massengale)
(modification of child support, attorney fee order void)
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED:
Opinion by
Justice Michael Massengale    
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00897-CV  Phillipe J. Brejon v. Lia M. Johnson Brejon   
Appeal from 310th District Court of Harris County
Trial Court Judge:  The
Honorable Lisa Millard

Mitchell v. The Methodist Hospital (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)
(
medical malpractice suit, adequacy of expert report, attorney's fees in HCLC suit) (presumption of proper
service, receipt of mail)
AFFIRM TC JUDGMENT: Opinion by
Justice Hanks    
Before Justices Keyes, Alcala and Hanks   
01-08-00898-CV  Chiquita Mitchell, Verazonda Mitchell, Dominque Mitchell, Aaron Mitchell, Samuel Mitchell,
Frank Mitchell III, Carl Mitchell, Marie Ophelia, Theodore Mitchell & Johnation Mitchell v. The Methodist
Hospital, Rose Young, Melissa Abbot, Denise M. Stuckey and Bernice Onyenuzi   
Appeal from 270th District Court of Harris County
Trial Court Judge:
Hon. Brent Gamble    

Davis v. West (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)(derived judicial immunity)
(
turnover relief, void vs voidable order, existence of fiduciary duty, sufficiency of notice of summary judgment
hearing)
AFFIRM TC JUDGMENT: Opinion by
Justice George C. Hanks    
Before Justices Keyes, Alcala and Hanks   
01-08-01006-CV  Veronica Davis v. James A. West, Henry V. Radoff,
Houston Reporting Services & Prosperity Bank, Inc..   
Appeal from 149th District Court of Brazoria County
Trial Court Judge: Hon. Robert E. May

Perez v. Fannie Mae (pdf)  (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(per curiam dismissal)
(failure to file brief)
DISMISS APPEAL: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-08-01031-CV  Erika Perez v. Fannie Mae   
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: Hon. R. Jack Cagle

Humphreys v. Delcourt (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Higley)
(
legal malpractice suit)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Higley    
Before Justices Jennings, Higley and Massengale   
01-09-00025-CV  Jahn Eric Humphreys v. Richard Delcourt   
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd

In re Gordon (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(per curiam denial)
By petition for writ of mandamus, prohibition, and injunction, relator seeks relief compelling the Texas Supreme Court to void
and vacate its judgment rendered in Gordon v. Madison, 39 S.W.3d 604 (Tex. 2001).
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00577-CV  In re Ronald X. Gordon   
Appeal from
212th District Court of Galveston County

DISMISS APPEAL: Per Curiam    
Before Justices Jennings, Higley and Sharp   
01-09-00592-CV  Hung Tan Phan v. An Dinh Le; Tan Ming Cao; Thuy Dinh Truong   
Appeal from 125th District Court of Harris County

DISMISS APPEAL: Per Curiam    
Before Justices Jennings, Higley and Sharp   
01-09-00694-CV  Aleithia Artemis v. Houston Fire Dept.   
Appeal from 133rd District Court of Harris County

DISMISS APPEAL: Per Curiam    
Before Chief Justice Radack, Justices Alcala and Higley   
01-09-00735-CV  William David Golden v. Janet Sue Golden   
Appeal from 245th District Court of Harris County

DISMISS APPEAL: Per Curiam    
Before Chief Justice Radack, Justices Alcala and Higley   
01-09-00780-CV  Mark Trimble v. Ranjeek Kaur   
Appeal from County Court of Chambers County

Criminal Causes Decided:

AFFIRM TC JUDGMENT: Opinion by Justice Massengale    
Before Chief Justice Radack, Justices Bland and Massengale   
01-06-00109-CR Milton Hill Greenland v. The State of Texas   
Appeal from 351st District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Massengale    
Before Chief Justice Radack, Justices Bland and Massengale   
01-07-01123-CR  John Lucero v. The State of Texas   
Appeal from 278th District Court of Grimes County

REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Massengale    
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00160-CR  Michelle Yvette Johnlewis v. The State of Texas   
Appeal from County Court at Law No 1 of Fort Bend County

MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Massengale    
Before Hon. Wilson, Justices Bland and Massengale   
01-08-00279-CR  Jonathan Rollins v. The State of Texas   
Appeal from 339th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Massengale    
Before Hon. Wilson, Justices Bland and Massengale   
01-08-00299-CR  Gary Lynn Biggers v. The State of Texas   
Appeal from 56th District Court of Galveston County

AFFIRM TC JUDGMENT: Per Curiam    
Before Justices Jennings, Higley and Sharp   
01-08-00419-CR  Shaul Damon Carter v. The State of Texas   
Appeal from 174th District Court of Harris County

AFFIRM TC JUDGMENT: Per Curiam    
Before Justices Jennings, Higley and Sharp   
01-08-00420-CR   Shaul Damon Carter v. The State of Texas   
Appeal from 174th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Massengale    
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00513-CR  Dave Ward III v. The State of Texas   
Appeal from County Court at Law No 1 of Fort Bend County

AFFIRM TC JUDGMENT: Opinion by Justice Massengale    
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00613-CR  Richard Nathaniel Cato v. The State of Texas   
Appeal from 405th District Court of Galveston County

AFFIRM TC JUDGMENT: Opinion by Justice Sharp    
Before Justices Jennings, Higley and Sharp   
01-08-00859-CR  Marcus Allen Bolden v. The State of Texas   
Appeal from 337th District Court of Harris County

AFFIRM TC JUDGMENT: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00222-CR  Robert M. Freeman v. The State of Texas   
Appeal from 241st District Court of Smith County

AFFIRM TC JUDGMENT: Per Curiam    
Before Justices Jennings, Higley and Sharp   
01-09-00357-CR  Calvin Jerod Henderson v. The State of Texas   
Appeal from 184th District Court of Harris County

DISMISS APPEAL: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00897-CR  Michael Rene Gonzalez v. The State of Texas   
Appeal from 228th District Court of Harris County

DISMISS APPEAL: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00898-CR  Michael Rene Gonzalez v. The State of Texas  
Appeal from 228th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Massengale    
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00931-CR  John Lucero v. The State of Texas   
Appeal from 278th District Court of Grimes County

Released Opinions

December 30, 2009  

Civil Causes Decided:

In re International Trading Co., Inc. (Tex.App.- Houston [1st Dist.] Dec. 30, 2009)(per curiam denial)
(mandamus denied re: order denying
motion to compel arbitration)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam    
Before Justices Jennings, Higley and Sharp   
01-09-01032-CV  In re International Trading Co., Inc., d/b/a Met Company, Inc.   
Appeal from 190th District Court of Harris County
Trial Court Judge:
Hon. Patricia J. Kerrigan

Criminal Causes Decided:

DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam    
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00932-CR  In re Ronald Antione Reed   
Appeal from 209th District Court of Harris County

DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam    
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00933-CR  In re Ronald Antione Reed   
Appeal from 209th District Court of Harris County

Released Opinions

December 28, 2009  

Civil Causes Decided:

Criminal Causes Decided:

DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-08-00931-CR  In re Matthew James Leachman   
Appeal from 248th District Court of Harris County

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00966-CR  In Re Ted Lawrence Robertson   
Appeal from 174th District Court of Harris County

DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-01010-CR  In re General Carlos Harris   
Appeal from 230th District Court of Harris County  

December 23, 2009  

Civil Causes Decided:

In re Feinhandler (Tex.App.- Houston [1st Dist.] Dec. 23, 2009)(per curiam)
(
discovery mandamus re order to produce income tax returns denied)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Jennings, Higley and Sharp
01-09-01100-CV  In re Mark Feinhandler   
Appeal from 111th District Court of Webb County
Trial Court Judge:  Hon. Michael D. White  

Criminal Causes Decided:

December 22, 2009   

Civil Causes Decided:

Brookshire Katy Drainage District v. The Lily Gardens, LLC (pdf) (Tex.App.- Houston [1st Dist.] Dec. 22, 2009)
(Wilson, Davie)(
interpretation of easements)
This suit was instituted by the Brookshire Katy Drainage District (the "District"), a political subdivision of the state of Texas
located in Waller County, against Lily Gardens, LLC. The District brought suit to obtain, among other things, a declaration that a
bridge covering built by Lily Gardens upon a culvert within the District's drainage easement violates the District's easement
rights, as well as applicable rules and regulations.
The trial court granted Lily Gardens' motion for summary judgment and awarded attorneys' fees to Lily Gardens under the
Declaratory Judgments Act. In two issues, the District contends the trial court erred in: (1) granting Lily Gardens' motion for
summary judgment because the bridge covering encroaches on the District's easement rights and violates other rules and
regulations; (2) awarding attorney's fees to Lily Gardens because Lily Gardens is not entitled to fees under the Declaratory
Judgments Act.
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Judge Davie Wilson     
Before Chief Justice Radack, Judge Wilson, Justice Hanks   
01-07-00431-CV Brookshire Katy Drainage District v. The Lily Gardens, LLC, Richard E. Fluecker and
Kenneth B. Luedecke   
Appeal from 9th District Court of Waller County
Trial Court Judge: Hon. Frederick Edwards

Cantu v. McKinney (pdf) (Tex.App.- Houston [1st Dist.] Dec. 22, 2009)(Higley)(denial of motion to recuse
affirmed, pro se appeals)
Presenting two issues, the Cantus challenge the denial of their motion to recuse the trial court judge and the denial of their
motion to enforce the trial court's judgment. We affirm  the presiding judge of the Second Administrative Judicial Region's order
denying the Cantus' motion to recuse the trial court judge, and we affirm the trial court's order denying the "Defendants' Second
Amended Motion for Contempt and Sanctions Against Epernay and Individuals."
AFFIRM TC JUDGMENT: Opinion by Justice Higley     
Before Justices Jennings, Higley and Sharp   
01-07-01091-CV  Tony Cantu and Elsa Cantu v. Wade McKinney, Jr., Rebecca R. McKinney, et al   
Appeal from 129th District Court of Harris County
Trial Court Judge:  
Hon. Grant Dorfman  

Valencia v. DFPS (pdf) (Tex.App.- Houston [1st Dist.] Dec. 22, 2009)(Jennings)(termination reversed)
Appellant challenges the trial court’s termination of his parental rights to his minor child. In three issues, Valencia contends that
his court-appointed attorney’s performance at trial “was so patently deficient that [he] was denied any meaningful assistance of
counsel altogether” and the evidence presented against him at trial, as revealed in a five and one-half page trial transcript, is
legally and factually insufficient to support the trial court’s findings that he endangered the child and that termination of his
parental rights is in the child’s best interest. We reverse that portion of the decree terminating the parent-child relationship
between Valencia and V.V.
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings     
Before Justices Jennings, Higley and Sharp   
01-08-00345-CV Joe Lewis Valencia v. Department of Family and Protective Services   
Appeal from 313th District Court of Harris County
Trial Court Judge: Hon. Pat Shelton

Malatesta v. Dove Meadows HOA (pdf) (Tex.App.- Houston [1st Dist.] Dec. 22, 2009)(Bland)
(
HOA litigation, deed restrictions, conclusory affidavit)
Bryan D. Malatesta and Willie Voncille Malatesta, record owners of a parcel on Meadowhill Drive in the Dove Meadows
subdivision (the Meadowhill Drive property), appeal the trial court’s summary judgment granting Dove Meadows’s request for
injunctive relief for deed restriction violations and attorney’s fees.  The Malatestas contend that the trial court erred in failing to
consider their appearance and response in opposition to Dove Meadows’s motion for summary judgment.  They also challenge
the affidavits Dove Meadows submitted with its motion, contending that they cannot support the summary judgment.  Finding no
error, we affirm.
AFFIRM TC JUDGMENT: Opinion by Justice Bland     
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00772-CV   Bryan D. Malatesta, Willie Voncille Malatesta v. Dove Meadows Homeowners Association,
Inc.   Appeal from 234th District Court of Harris County
Trial Court Judge: The
Honorable Reece Rondon

DISMISS APPEAL 12/22 12/22: Per Curiam     
Before Justices Keyes, Alcala and Hanks   
01-08-00846-CV        Kim Denise Carter v. Kathy Potts   
Appeal from 344th District Court of Chambers County

DISMISS APPEAL 12/22: Per Curiam  
Before Justices Keyes, Alcala and Hanks   
01-08-00920-CV        Laverna Stovall v. Guadalupa Ann Lira   
Appeal from 80th District Court of Harris County

DISMISS APPEAL 12/22: Per Curiam     
Before Justices Jennings, Higley and Sharp   
01-09-00032-CV        Richard Denton, Individually, and on Behalf of all others similarly situated v. Michael Y.
McGovern, Robert E. Allen, Marvin E. Lesser, Charles L. Mears, David A. Scholes, and Richard L.
Urbanowski   Appeal from 129th District Court of Harris County

DISMISS APPEAL 12/22: Per Curiam     
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00162-CV        Larry Lewis Barrett & Theressa Thanars Barrett v. Washington Mutual Bank, its
Successor and Assigns   
Appeal from 400th District Court of Ft. Bend County

DISMISS APPEAL 12/22: Per Curiam     
Before Justices Keyes, Alcala and Hanks   
01-09-00338-CV        Kirbyville Senior Center & Nutrition Services, Jasper County Commitee on Aging and
Kirbyville Chapter of Senior Citizens v. Sharron Faye West   
Appeal from 1st District Court of Jasper County

AFFIRM TC JUDGMENT: Opinion by Justice Sharp     
Before Justices Jennings, Higley and Sharp   
01-09-00427-CV        The City of Houston v. Wallace Ray Mack, Beryl B. Mack   
Appeal from Co Civil Ct at Law No 3 of Harris County

DISMISS APPEAL 12/22: Per Curiam     
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00542-CV        Elizabeth Haddad v. Department of Family and Protective Services   
Appeal from 315th District Court of Harris County

DISMISS APPEAL 12/22: Per Curiam     
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00546-CV        Henry J. Quanaim v. Allstate Insurance   
Appeal from 189th District Court of Harris County

DISMISS APPEAL 12/22: Per Curiam     
Before Justices Jennings, Higley and Sharp   
01-09-00701-CV        Kenneth Hill v. Domingo Carrillo, Et Al   
Appeal from 405th District Court of Galveston County

DISMISS APPEAL 12/22: Per Curiam     
Before Justices Keyes, Alcala and Hanks   
01-09-00751-CV        Tamara Lee Gradert v. Union Pacific Railroad Company,
Burlington Northern Santa Fe Railway Company and Montie R. Sims   
Appeal from 152nd District Court of Harris County

DISMISS APPEAL 12/22: Per Curiam     
Before Justices Jennings, Higley and Sharp   
01-09-00911-CV        Brian Penny and Cynthia Penny v. Shell Oil Products Company, L.L.C.,
Shell Deer Park, Shell Oil Company, Shell Chemical Company, Equilon Enterprises, L.L.C.   
Appeal from 113th District Court of Harris County

Criminal Causes Decided:

REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings     
(we hold that the evidence is legally insufficient to support appellant’s conviction of the offense of possession
of a controlled substance)
Before Justices Jennings, Keyes and Higley   
01-08-00138-CR        James Blackman v. The State of Texas   
Appeal from 230th District Court of Harris County
OPINION DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by Justice Keyes    

AFFIRM TC JUDGMENT: Opinion by Justice Hanks     
Before Justices Keyes, Alcala and Hanks   
01-09-00211-CR        William Michael Ferguson v. The State of Texas   
Appeal from 294th District Court of Van Zandt County

December 17, 2009

Civil Causes Decided:

Brown & Brown of Texas, Inc. v. Omni Metals, Inc. (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)
(Substituted opinion by Keyes) (
insurance coverage, certificates of insurance, DTPA)
MODIFY TRIAL COURT JUDGMENT AND AFFIRM TRIAL COURT JUDGMENT AS MODIFIED:
Opinion by Justice Keyes    
Before Justices Nuchia, Keyes and Higley   
01-05-01190-CV   Brown & Brown of Texas, Inc. f/k/a Poe & Brown of Texas, Inc. and Transcontinental
Insurance Company v. Omni Metals, Inc.   
Appeal from 61st District Court of Harris County
Trial Court Judge:
Hon. John Donovan
Dissenting Opinion by Justice Nuchia   

DISMISS APPEAL: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-07-00361-CV  Practice Consultants, Inc. v. Bravo Dental Clinics, P.A.   
Appeal from 61st District Court of Harris County
Trial Court Judge:
Hon. Donovan

DISMISS APPEAL: Per Curiam  
Before Justices Keyes, Alcala and Hanks   
01-07-00493-CV  Felicia Sheppard, Alex Grigsby, Melvin Jackson, Gerald Thomas, Claudine Faulkner, Rufino
Razo, David Criswell, Larry Oliver, Michael Cloudy, Mark Fletcher, Quincy Ratcliff and Randy Horn v. Stanley
B. Broussard and Stanley B. Broussard, P.C.   
Appeal from 157th District Court of Harris County
Trial Court Judge:
Hon. R. Wilson

Gundogan v. Woodgrove Condo (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Keyes)
(
appeals from small claims and JP court, failure to Timely Respond to Discovery Requests,
rebuttal of presumption of receipt of documents served pursuant to Rule 21a)
Woodgrove objected to each of the four pieces of evidence on the grounds that Gundogan failed to timely respond to discovery
requests. The trial court sustained each of Woodgrove’s four objections and excluded Gundogan’s four pieces of evidence.
Having held that the trial court erred in indulging the presumption that the request for production and notice of the motion to
compel Woodgrove properly sent were received, we further hold that the trial court erred in excluding Gundogan’s four pieces of
evidence on the ground of failure to timely respond to discovery requests.
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Keyes    
Before Justices Jennings, Keyes and Higley   
01-07-00876-CV  Peter Kemal Gundogan v. Woodgrove Condominum   
Appeal from Co Civil Ct at Law No 1 of Harris County
Trial Court Judge:
Hon. R. Jack Cagle

Forward v. Texas Board of Pardons and Parole (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Alcala)
Appellant, John Patrick Forward, appeals the trial court's order that dismissed for want of prosecution his petition for expunction
of records. In two issues, Forward contends the court abused its discretion in dismissing his expunction petition for want of
prosecution because the trial court did not give Forward adequate notice that his petition would be dismissed for failure to
prosecute his case, and he proved each of the requirements for having his record expunged. We conclude the trial court did not
give adequate notice to Forward of its intent to dismiss the case. We, therefore, reverse and remand the case to the trial court.
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER
PROCEEDINGS:
Opinion by
Justice Elsa Alcala    
Before Justices Keyes, Alcala and Hanks   
01-07-00914-CV  John Patrick Forward v. Texas Board of Pardons and Parole   
Appeal from 80th District Court of Harris County
Trial Court Judge:
Hon. Lynn Bradshaw-Hull

Rodrigues v. Press (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Massengale)(legal malpractice suit)
Appellant, Enrique Rodriguez, and his wife, Anabel Reyna Rodriguez, sued appellant’s former lawyer, Dionne S. Press, for
alleged negligence, breach of contract, violations of the Deceptive Trade Practices-Consumer Protection Act, and other
theories.  See Tex. Bus. & Com. Code Ann. §§ 17.41–.63 (Vernon 2002 & Supp. 2009) (DTPA).  The trial court rendered a take-
nothing summary judgment based on appellee Press’s motion for summary judgment.  Appellant brings three points of error,
alleging the trial court erred in (1) hearing the motion for summary judgment outside the time periods set out in the court’s
docket control order, (2) relying on the doctrine set forth in Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995),[1] to grant
Press’s motion for summary judgment, and (3) denying appellant’s motion for summary judgment based on what appellant
claims is false and misleading summary-judgment evidence filed by Press.  We affirm.
AFFIRM TC JUDGMENT: Opinion by Justice Massengale    
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00326-CV  Enrique Rodriguez v. Dionne S. Press   
Appeal from 190th District Court of Harris County
Trial Court Judge:
Hon. Jennifer Walker Elrod

DISMISS APPEAL: Per Curiam    
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00483-CV Tay Enterprises LLC a/k/a and d/b/a Tay Enterprises and Brandon Home Furnishings v.
Classics By Casabique   Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd

Walker v. Livingston (pdf)(Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Keyes) (Jennings) (pro se inmate suit)
Appellant, Freddie Lee Walker, who is incarcerated and represents himself pro se, challenges the trial court’s order dismissing
his lawsuit against appellees, Brad Livingston, Nathaniel Quarterman, Gary Gomez, Larry LeFlore, Pamela Williams, Beverly
Stewart, Doug Waldron, J.P. Guyton, and Richard Trinci, and other officials with the Texas Department of Criminal Justice
(“TDCJ”), Footnote  for violating the Equal Protection Clause of the United States Constitution Footnote  by refusing to provide
him a certain inmate classification. In four issues, Walker contends that a Travis County district court erred in transferring venue
of the case from Travis County to Brazoria County, the trial court “improperly dismissed the entire case and should have stayed
the remaining lawsuit,” the trial court abused its discretion in dismissing his case under Chapter 14 of the Texas Civil Practice
and Remedies Code, and the trial court erred in denying his new trial motion.  We affirm.
AFFIRM TC JUDGMENT: Opinion by Justice Jennings    
Before Justices Jennings, Higley and Sharp   
01-08-00959-CV        Freddie Lee Walker v. Brad Livingston, Nathaniel Quarterman, Gary Gomez, Larry
Leflore, Pamela Williams, Beverly Stewart, Doug Waldron, J.P. Guyton, and Richard Trinci   
Appeal from 412th Judicial District Court of Brazoria County
Trial Court Judge:  Hon. W. Edwin Denman

DISMISS APPEAL: Per Curiam    
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00125-CV  Javanda Nelson v. The Bank of New York as Successor to JP Morgan Chase Bank, National
Association, Formerly known as JP Morgan   
Appeal from Co Civil Ct at Law No 2 of Harris County
Trial Court Judge:
Hon. Jacqueline Lucci Smith

Marcus v. Smith (pdf)(Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Alcala)
In this appeal and these petitions for writs of mandamus, David E. Marcus seeks relief from the trial court's March 3, 2009 order
dismissing his lawsuit and imposing trial attorney's fees, and from the trial court's April 16, 2009 temporary orders imposing
appellate attorney's fees and quashing exhibits. (1) In three issues raised in the appeal, Marcus contends the trial court erred by
(1) awarding trial attorney's fees to Smith's attorney; (2) awarding appellate attorney's fees to Smith's attorney; and (3)
disallowing Marcus's resubmission of trial exhibits after he had taken them back into his possession and withdrawn them from
the court. The petition for mandamus in appellate number 01-09-00461-CV asserts the same challenges raised in the appeal
concerning the award of appellate attorney's fees. In three issues pertaining to the petition for mandamus in appellate number
01-09-00702-CV, Marcus repeats his complaint about the trial court's refusal to allow him to resubmit trial exhibits, but he
additionally asserts the trial court erred by denying his motion to enforce his visitation rights, and by directing him to pay fees for
Smith's trial attorney. Smith responds by challenging our jurisdiction over these cases and, alternatively, addressing the merits
of the contentions. We conclude the trial court did not abuse its discretion by dismissing the motion to enforce the order
adjudicating parentage and by awarding trial and appellate attorney's fees. We affirm the trial court's March 3, 2009 dismissal
order, modify the trial court's April 16, 2009 temporary orders to make the appellate attorney's fees contingent upon successful
appeal, and deny the petitions for writs of mandamus.
AFFIRM TC JUDGMENT: Opinion by Justice Elsa Alcala    
Before Justices Keyes, Alcala and Hanks   
01-09-00321-CV        David E. Marcus v. Margaret A. Smith   
Appeal from 310th District Court of Harris County  
Trial Court Judge: Hon.
Lisa Millard

In re Marcus (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Alcala)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala    
Before Justices Keyes, Alcala and Hanks   
01-09-00461-CV  In re David E. Marcus   
Appeal from 310th District Court of Harris County
Trial Court Judge:
Hon. Lisa Millard

Ineos Group Ltd v. Chevron Phillips Chemical Co, LP (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)
(Higley) (
interlocutory appeal, temporary injunction affirmed)
INEOS (1) appeals the trial court's issuance of a temporary injunction prohibiting it from soliciting, negotiating, or entering into
technology licensing agreements for a particular grade of polyethylene plastic made by using a certain manufacturing process.
The temporary injunction is based on Chevron Phillips Chemical Company's ("CPChem") claim that the technology underlying
this manufacturing process is derived from its
trade secrets. In one issue, INEOS argues that the technology is no longer
entitled to trade secret protection because, through a lack of vigilance, CPChem disclosed the technology to third parties, which
are no longer required to keep the information confidential.
Because INEOS has not shown that the trial court abused its discretion by issuing the temporary injunction, we affirm.
AFFIRM TC JUDGMENT: Opinion by Justice Higley    
Before Justices Jennings, Higley and Sharp   
01-09-00504-CV   Ineos Group Ltd., Ineos Technologies, Ineos Americas LLC, Ineos Manufacturing Belgium
NV, Ineos LLC, Ineos Europe Limited, Ineos Polyethlene North America, Ineos USA LLC and Ineos Olefins LP
v. Chevron Phillips Chemical Company, LP   
Appeal from County Court at Law No 2 of Galveston County
Trial Court Judge: Hon. C. G. Dibrell, III

DISMISS APPEAL: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00538-CV        Doc's Delight, L.L.C. D/B/A Ziggy's Healthy Grill v. 2200 West Alabama, Inc.   
Appeal from Co Civil Ct at Law No 3 of Harris County
Trial Court Judge:  Hon. Linda Storey

DISMISS APPEAL: Per Curiam    
Before Justices Jennings, Higley and Sharp   
01-09-00556-CV        G.V. Flores Investments, L.L.C. and Gary Flores v. Autocheck Franchising Systems,
Inc.   Appeal from 234th District Court of Harris County
Trial Court Judge: Hon. Reece Rondon

DISMISS APPEAL: Per Curiam    
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00621-CV        Germaine James v. State of Texas Judge Bonnie Hellums   
Appeal from 164th District Court of Harris County
Trial Court Judge: Hon Alexandra Smoots-Hogan

In re Marcus (pdf)(Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Alcala)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala    
Before Justices Keyes, Alcala and Hanks   
01-09-00702-CV        In re David E. Marcus   
Appeal from 310th District Court of Harris County
Trial Court Judge:  Hon. Lisa Millard

DISMISS APPEAL: Per Curiam    
Before Justices Jennings, Higley and Sharp   
01-09-00712-CV  Rapid Settlements v. Juana Saenz   
Appeal from 129th District Court of Harris County
Trial Court Judge: Hon. Michael Gomez

DISMISS APPEAL: Per Curiam    
Before Justices Jennings, Higley and Sharp   
01-09-00736-CV  Nema Ghalamdanchi v. Linn Boyd   
Appeal from 190th District Court of Harris County
Trial Court Judge: Hon. Patricia J. Kerrigan  

DISMISS APPEAL: Per Curiam    
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00953-CV  Kristofer Thomas Kastner v. The Hon. Tom Lawrence, individually and as Harris County
Justices of the Peace   Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Dion Ramos

DISMISS APPEAL: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00988-CV  Melvin Raymond Schield, Jr. v. State of Texas   
Appeal from 412th Judicial District Court of Brazoria County
Trial Court Judge:  Hon. W. Edwin Denman

Criminal Causes Decided:

DISMISS APPEAL: Opinion by Justice Bland    
Before Chief Justice Radack, Justices Bland and Massengale   
01-06-00833-CR        Peter Gilbert Contreras v. The State of Texas   
Appeal from 182nd District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Higley    
Before Justices Jennings, Higley and Sharp   
01-07-00427-CR        William Larry Aston v. The State of Texas   
Appeal from 174th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Jennings    
Before Justices Jennings, Keyes and Higley   
01-07-00827-CR        Raymond Dominic Brackens v. The State of Texas   
Appeal from 184th District Court of Harris County

OPINION CONCURRING WITH THIS COURT'S JUDGMENT: Concurring Opinion by Justice Keyes    
Before Justices Jennings, Keyes and Higley   
01-07-00827-CR        Raymond Dominic Brackens v. The State of Texas   
Appeal from 184th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Massengale    
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00037-CR        William Earl Jones v. The State of Texas   
Appeal from 400th District Court of Ft. Bend County

AFFIRM TC JUDGMENT: Opinion by Justice Hanks    
Before Justices Keyes, Alcala and Hanks   
01-08-00261-CR        James Douglas Harris v. The State of Texas   
Appeal from 77th District Court of Limestone County

AFFIRM TC JUDGMENT: Opinion by Justice Hanks    
Before Justices Keyes, Alcala and Hanks   
01-08-00534-CR        Howard Dale Bellamy v. The State of Texas   
Appeal from 228th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Jennings    
Before Justices Jennings, Higley and Sharp   
01-08-00738-CR        Dennis Antoine Andrus v. The State of Texas   
Appeal from 339th District Court of Harris County

DISMISS APPEAL: Per Curiam    
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-01039-CR        Charles Allen Steward v. The State of Texas   
Appeal from 351st District Court of Harris County

DISMISS APPEAL: Per Curiam    
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-01040-CR        Charles Allen Stewart v. The State of Texas   
Appeal from 351st District Court of Harris County

AFFIRM TC JUDGMENT: Per Curiam    
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00049-CR        Patrick Farriott v. The State of Texas   
Appeal from 184th District Court of Harris County

AFFIRM TC JUDGMENT: Per Curiam    
Before Justice Hanks   
01-09-00105-CR        Ruben Barbalena v. The State of Texas   
Appeal from 56th District Court of Galveston County

AFFIRM TC JUDGMENT: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00106-CR        Ruben Barbalena v. The State of Texas   
Appeal from 56th District Court of Galveston County

AFFIRM TC JUDGMENT: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00107-CR        Ruben Barbalena v. The State of Texas   
Appeal from 56th District Court of Galveston County

AFFIRM TC JUDGMENT: Opinion by Justice Bland    
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00217-CR        Juan Vasquez v. The State of Texas   
Appeal from 7th District Court of Smith County

AFFIRM TC JUDGMENT: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00499-CR        Luis Alonso Perez v. The State of Texas   
Appeal from 179th District Court of Harris County

December 14, 2009

Civil Causes Decided:

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Justices Keyes, Alcala and Hanks
01-09-00604-CV        In re Donald C. Jackson   
Appeal from 133rd District Court of Harris County
Trial Court Judge:  
Jaclanel M. McFarland   

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Chief Justice Radack, Justices Bland and Massengale
01-09-01055-CV        In re Amanda Desterberg  
Appeal from 313th District Court of Harris County

Criminal Causes Decided:

December 11, 2009

Civil Causes Decided:

SET ASIDE TC JUDGMENT AND REMAND CASE TO TC FOR RENDITION OF JUDGMENT
IN ACCORDANCE WITH PARTIES' AGREEMENT: Per Curiam  
Before Justices Jennings, Higley and Sharp
01-09-00401-CV   Jason R. Freeman v. Bartlett Cocke, L.P.  
Appeal from 113th District Court of Harris County
Trial Court Judge:
Hon. Patricia Hancock

December 10, 2009

Civil Causes Decided:

DISMISS APPEAL: Per Curiam    
Before Justices Jennings, Higley and Sharp   
01-07-00901-CV  Essex Crane Rental Corp. and Vincent A. Morano v. James W. McPherson, Sr, Coastal
Terminal Operators, Inc., Coastal Stevedoring Corporation, McPherson Interests, Ltd., James W. McPherson
Family Trust, James W. McPherson, Jr., Eric G. Carter d/b/a Eric G. Carter and Associates, and Houston
Industrial   
Appeal from 151st District Court of Harris County
Trial Court Judge:
Hon. Caroline Baker

Simien v. Unifund CCR Partners (pdf) (Tex.App.- Houston [1st Dist.] Dec. 10, 2009)(Alcala)
(
credit card debt suit)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Alcala    
Before Justices Keyes, Alcala and Hanks   
01-08-00593-CV  Michelle D. Simien v. Unifund CCR Partners   
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd   

Imkie v. The Methodist Hospital (pdf)(Tex.App.- Houston [1st Dist.] Dec. 10, 2009)(effect of failure to respond
to
no-evidence motion for summary judgment, denial of motion for new trial affirmed)
(trial court properly granted the motion for summary judgment, and did not abuse its discretion by denying the
motion for new trial. Court of appeals affirms the ruling of the trial court.)
AFFIRM TC JUDGMENT: Opinion by
Justice Alcala    
Before Justices Keyes, Alcala and Hanks   
01-08-00831-CV  Marwa Imkie v. The Methodist Hospital   
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Hon. Lamar McCorkle

Said v. Maria Investment  (pdf) (Tex.App.- Houston [1st Dist.] Dec. 10, 2009)(personal jurisdiction, special
appearance) (The Saids contend that the trial court abused its discretion in granting the special
appearances.  Holding that had no evidence properly before the trial court supports the special appearances,
we reverse the trial court’s orders.)  
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Bland  
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00962-CV  Asif Said and Asma Said v. Maria Investment   
Appeal from 151st District Court of Harris County
Trial Court Judge: Hon.
Caroline E. Baker

Anyanwu v. FIA Card Services, N.A. FKA, MBNA American Bank, N.A. (pdf)(Tex.App. - Houston [1st Dist.] Dec.
10, 2009)(per curiam)  (
dismissed for failure to file appellate brief)
DISMISS APPEAL: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00100-CV  Good G. Anyanwu v. FIA Card Services, N.A. FKA, MBNA American Bank, N.A. c/o Mann
Bracken LLC   
Appeal from
County Civil Court at Law No 3 of Harris County

Wright v. Atlantic Credit and Finance, Inc. (Tex.App.- Houston [1st Dist.] Dec. 10, 2009)(Alcala)
(failure to plead
statute of limitations)(deemed admissions and Atlantic's uncontroverted summary judgment
evidence conclusively establish Atlantic's entitlement to recover on breach of contract and its entitlement to
attorney's fees)
AFFIRM TC JUDGMENT: Opinion by
Justice Alcala    
Before Justices Keyes, Alcala and Hanks   
01-09-00135-CV  Darryl G. Wright v. Atlantic Credit and Finance, Inc.   
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd

DISMISS APPEAL: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00318-CV  Willie James Ashton, Jr. v. Texas Department of Criminal Justice   
Appeal from 412th Judicial District Court of Brazoria County

DISMISS APPEAL: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00537-CV  Texas Department of Public Safety v. Wendell L. James   
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge:
Hon. Linda Storey

Criminal Causes Decided:

MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED:
Opinion by Justice Sharp    
Before Justices Jennings, Higley and Sharp   
01-07-00088-CR        Chandra Denise Randle v. The State of Texas   
Appeal from 209th District Court of Harris County

MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED:
Opinion by Justice Sharp    
Before Justices Jennings, Higley and Sharp   
01-07-00089-CR        Chandra Denise Randle v. The State of Texas   
Appeal from 209th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Alcala    
Before Justices Keyes, Alcala and Hanks   
01-08-00740-CR        Hightower Obryant v. The State of Texas   
Appeal from 179th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Alcala    
Before Justices Keyes, Alcala and Hanks   
01-08-00741-CR        Hightower Obryant v. The State of Texas   
Appeal from 179th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Bland    
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00844-CR        Simon Chambers v. The State of Texas   
Appeal from 263rd District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Jennings    
Before Justices Jennings, Higley and Sharp   
01-08-00911-CR        Michael Rainey Adams v. The State of Texas   
Appeal from 434th District Court of Fort Bend County

AFFIRM TC JUDGMENT: Opinion by Justice Alcala    
Before Justices Keyes, Alcala and Hanks   
01-08-00940-CR        Kelly Lewis v. The State of Texas   
Appeal from 262nd District Court of Harris County

DISMISS APPEAL: Per Curiam    
Before Justices Keyes, Alcala and Hanks   
01-09-00896-CR        Michael Rene Gonzalez v. The State of Texas   
Appeal from 228th District Court of Harris County

DISMISS APPEAL: Per Curiam    
Before Justices Jennings, Higley and Sharp   
01-09-00937-CR        Donte Jermail Campbell v. The State of Texas   
Appeal from 209th District Court of Harris County

December 7, 2009

Civil Causes Decided:

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00967-CV  In Re Timothy Aguilar   
Appeal from 61st District Court of Harris County
Trial Court Judge:
Hon. Al Bennett

Criminal Causes Decided:

December 4, 2009

Civil Causes Decided:

BHP Billiton Petroleum (Americas), Inc. v. Atlantia Offshore Ltd. (pdf) (Tex. App.- Houston [1st Dist.] Dec. 4,
2009)(Jennings) (
arbitration dispute, interlocutory appeal)
DISMISS APPEAL: Opinion by
Justice Terry Jennings  
Before Justices Jennings, Higley and Sharp
01-09-00509-CV  BHP Billiton Petroleum, (Americas) Inc. v. Atlantia Offshore Limited
Appeal from 215th District Court of Harris County
Trial Court Judge:  
Hon. Steven E. Kirkland

In Re BHP Billiton Petroleum (Americas) Inc. (pdf) (Tex.App. - Houston [1st Dist.] Dec. 4, 2009)(Jennings)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by
Justice Jennings  (arbitration mandamus denied)
Before Justices Jennings, Higley and Sharp
01-09-00647-CV  In re BHP Billiton Petroleum (Americas) Inc.
Appeal from
215th District Court of Harris County   
Appeal from
215th District Court of Harris County   

Criminal Causes Decided:

DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00930-CR        In re Clifford Winfrey  
Appeal from 174th District Court of Harris County

December 3, 2009

Civil Causes Decided:

DISMISS APPEAL: Per Curiam  
Before Justices Keyes, Alcala and Hanks    
01-07-00710-CV        Donald Ray McCaffrey, Jr. v. Texas Board of Pardons and Paroles, et al    
Appeal from
113th District Court of Harris County

Hines v. DFPS (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Radack)
(
termination of parental rights affirmed)     
AFFIRM TC JUDGMENT: Opinion by
Chief Justice Radack  
Before Chief Justice Radack, Justices Bland and Massengale    
01-08-00045-CV        Larry Wayne Hines v. Department of Family and Protective Services    
Appeal from 314th District Court of Harris County

Craig v. Varon (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Jennings)
(
real estate contract, indemnity agreement, trial of issues by consent)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings  
Before Justices Jennings, Higley and Sharp    
01-08-00794-CV Bob Craig, 6030 South Rice, Ltd. v. Jacobo Varon, Charter Title Company    
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Shearn Smith

Martinez v. Melendez (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Subst op. by Bland)
(
wrongful death, collision with dump truck, independent contractor, no right to control, no vicarious liability)
AFFIRM TC JUDGMENT: Opinion by
Justice Jane Bland  
Before Justices Taft, Bland and Sharp    
01-08-00850-CV  Luci Martinez, Individually and the Personal Representative of the Estate of Luis Martinez;
and Jose Martinez and Maria Martinez v. Moises Melendez    
Appeal from 190th District Court of Harris County
Trial Court Judge:
Hon. Patricia J. Kerrigan

Demby v. Rivers (pdf)(Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Radack)
(jury's verdict awarding appellee damages for
personal injuries he sustained as a result of the collision.
evidence is legally and factually sufficient to support the damage award as to
loss of physical capacity)
AFFIRM TC JUDGMENT: Opinion by
Chief Justice Radack  
Before Chief Justice Radack, Justices Bland and Massengale    
01-08-00965-CV  Yanetta Demby v. Lamachus Rivers    
Appeal from
125th District Court of Harris County  

DISMISS APPEAL: Per Curiam  
Before Justices Jennings, Higley and Sharp    
01-09-00128-CV  Ronald L. & Wendy S. Savage v. Cendant Mobility Financial Corporation d/b/a Cartus
Financial Corporation   
Appeal from
157th District Court of Harris County

Smith v. DFPS (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Hanks)(termination of parent's rights)
AFFIRM TC JUDGMENT: Opinion by
Justice George C. Hanks, Jr.
Before Justices Keyes, Hanks and Bland    
01-09-00173-CV  Deshann Smith a/k/a Cajuanna Peterson v. Department of Family and Protective
01-09-00390-CV  Deshann Smith a/k/a Cajuanna Peterson v. Department of Family and Protective Services    
Appeal from 314th District Court of Harris County

DISMISS APPEAL: Per Curiam  
Before Justices Jennings, Higley and Sharp    
01-09-00512-CV  William Earl Cunningham v. University of Texas Medical Branch    
Appeal from 10th District Court of Galveston County

DISMISS APPEAL: Per Curiam  
Before Justices Keyes, Alcala and Hanks    
01-09-00515-CV  Fawzi Abed Yousef v. A-Rod, L.P.    
Appeal from Co Civil Ct at Law No 3 of Harris County

DISMISS APPEAL: Per Curiam  
Before Justices Keyes, Alcala and Hanks    
01-09-00583-CV  Leviathan Enterprises Group, Inc. v. Ulysses W. Watkins    
Appeal from
61st District Court of Harris County

Speck v. First Evangelical Lutheran Church of Houston (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Bland)
(
construction law, nonpayment claim for services, quantum meruit, unjust enrichment, sworn account, JNOV)
(
insufficient record for appeal)
AFFIRM TC JUDGMENT: Opinion by
Justice Bland  
Before Chief Justice Radack, Justices Bland and Massengale    
01-09-00605-CV Pat K. Speck v. First Evangelical Luthern Church of Houston and Dry Bones Coffee House
Inc. and Dry Bones Coffee House    
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:  
Jacqueline Lucci-Smith

DISMISS APPEAL: Per Curiam  
Before Justices Jennings, Higley and Sharp    
01-09-00619-CV  Brent Thomas McPherson v. Ruth Hollyer    
Appeal from 245th District Court of Harris County
Trial Court Judge:
Hon. Annette Kuntz

DISMISS APPEAL: Per Curiam  
Before Justices Jennings, Higley and Sharp    
01-09-00620-CV  Chris Camp, Ponderosa Trailers Western Slope Division, Ponderosa Trailer New Mexico
Division, Central Arkansas Fabrication and Ponderosa Trailers v. Affordable Trailer Sales    
Appeal from 270th District Court of Harris County

In re Houston Auto M. Importers North, Ltd. (pdf) (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Radack)  
(
Mandamus granted re: order denying motion to compel arbitration)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by
Chief Justice Radack  
Before Chief Justice Radack, Justices Bland and Massengale    
01-09-00625-CV  In re Houston Auto M. Importers North, LTD. D/B/A Mercedes-Benz of Houston North    
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Jaclanel M. McFarland

DISMISS APPEAL: Per Curiam  
Before Justices Jennings, Higley and Sharp    
01-09-00650-CV  Trials 240 LP, commonly known to the Defendant as Three Properties Ltd
v.
Harris County Appraisal District and the Appraisal Review Board of Harris County Appraisal District    
Appeal from 281st District Court of Harris County
Trial Court Judge: The
Honorable Sylvia A. Matthews

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Justices Keyes, Alcala and Hanks
01-09-00850-CV  In re Texas Tri-Care Rehabilitation; and Lawrence Roddick, D.C.  
Appeal from 11th District Court of Harris County
Trial Court Judge:  
Hon. Mike Miller

Criminal Causes Decided:

AFFIRM TC JUDGMENT: Opinion by Justice Keyes  
Before Justices Keyes, Alcala and Hanks    
01-06-00517-CR        Jesse Rodriguez v. The State of Texas    
Appeal from 248th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack  
Before Chief Justice Radack, Justices Bland and Massengale    
01-07-00826-CR        Johnthan Ladare Lacy v. The State of Texas    
Appeal from 184th District Court of Harris County

DISMISS APPEAL: Per Curiam  
Before Chief Justice Radack, Justices Bland and Massengale    
01-07-01044-CR        Gustavo Casas Jr., Principal and Felix Michael Kubosh, Surety v. The State of Texas    
Appeal from 228th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Alcala  
Before Justices Keyes, Alcala and Hanks    
01-08-00264-CR        Aimee Andrea Fisher-Riza v. The State of Texas    
Appeal from COUNTY COURT AT LAW of Callahan County

REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Chief Justice Radack  
Before Chief Justice Radack, Justices Bland and Massengale    
01-08-00453-CR        Emanuell Glenn Randolph v. The State of Texas    
Appeal from 268th District Court of Fort Bend County

AFFIRM TC JUDGMENT: Per Curiam  
Before Chief Justice Radack, Justices Bland and Massengale    
01-08-00826-CR        Oscar Ponce-Perez v. The State of Texas    
Appeal from 174th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack  
Before Chief Justice Radack, Justices Bland and Massengale    
01-08-00860-CR        Kendron Lateef Miles v. The State of Texas    
Appeal from 300th District Court of Brazoria County

AFFIRM TC JUDGMENT: Opinion by Justice Hanks  
Before Justices Keyes, Alcala and Hanks    
01-09-00051-CR        Carlos Mendoza, Jr v. The State of Texas    
Appeal from 228th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Jennings  
Before Justices Jennings, Higley and Sharp    
01-09-00084-CR        Thomas Elton McDonnel v. The State of Texas    
Appeal from 248th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Jennings  
Before Justices Jennings, Higley and Sharp    
01-09-00085-CR        Thomas Elton McDonnel v. The State of Texas    
Appeal from 248th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Hanks  
Before Justices Keyes, Alcala and Hanks    
01-09-00119-CR        Jeremias Fuentes v. The State of Texas    
Appeal from 182nd District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack  
Before Chief Justice Radack, Justices Bland and Massengale    
01-09-00221-CR        Eddie D. Payne, Jr. v. The State of Texas    
Appeal from 7th District Court of Smith County   
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