Opinions by Other Justices
of the First Court of Appeals,  
sitting in Houston, Texas

Chief Justice Sherry Radack
Justice Tim Taft (resigned 2009)
Justice Michael Massengale
Justice Jim Sharp (elected 2008)
Justice Sam Nuchia (former)
Justice Terry Jennings
Justice Evelyn Keyes
Justice Elsa Alcala  
Justice George C. Hanks, Jr.
Justice Laura Carter Higley
Justice Jane Bland

Justice Elsa Alcala (see official bio and photo) was appointed to the
First Court of Appeals in 2002 and won voter approval in the general
election later that year. She did not draw a Democratic opponent
in the
2006 general election and was reelected.
Justice Alcala is a former prosecutor in the Harris County District
Attorney's Office and a former district court judge.
Justice Alcala's JD is from the University of Texas School of Law.
She earned her bachelor's degree from Texas A&M Kingsville.

In FY 2008 Justice Alcala wrote 78 signed deciding opinions on the
merits and 46 per curiam opinions. Justice Alcala rarely disagrees
openly with her colleagues and wrote only two dissenting opinion
over the course of the year. Her recent (Aug 2009), rather
strongly-worded, disagreements with
Justice Jennings thus come as
something of a  surprise. Jennings, though, has a more colorful
history as a dissenter, and may have precipitated the heated
exchange with his criticism of a panel opinion written by Alcala
in a case involving an employment dispute.
Find more info at the Houston-Opinions Home Page
2010 Civil Case Opinions by Houston Appeals Court Justice
Elsa Alcala

2010 Opinions by Justice Elsa Alcala in Civil Appeals
Also see --> 2009 Alcala Opinions in Civil Cases | 2008 Alcala Opinions

Divorce court's property division reversed and remanded because trial court awarded separate
property to the other spouse
Kite v. Kite (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Alcala)(separate property in divorce, inception of
title rule) (spouse's separate property may not be awarded to the other spouse in division of community
property)  
We hold the trial court erred in divesting Michael of his separate property. This necessitates remand for a new division of the
community estate. We reverse the portion of the final decree of divorce that divides the marital estate. We remand for a new
division of the community estate and other appropriate proceedings. We affirm the final decree of divorce in all other aspects.
AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN PART, AND REMAND
CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by
Justice Alcala     
Before Chief Justice Radack, Justices Alcala and Higley   
01-08-00643-CV  Michael David Kite v. Kendra Senja Kite    
Appeal from 246th District Court of Harris County
Trial Court Judge:
Hon. Jim York  

Destruction of video recording of slip and fall no reason to overturn summary judgment in favor
of grocery  store in premises liability law suit
Clark v. Randalls Food (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Alcala)
(
premises liability suit, spoilation of evidence claim rejected, video recording of incident not preserved)
AFFIRM TC JUDGMENT: Opinion by
Justice Elsa Alcala     
01-08-00732-CV  Ralph Clark v. Randalls Food [Randalls Food & Drug, L.P. was improperly named]   
Appeal from 157th District Court of Harris County
Trial Court Judge: Hon.
Randy Wilson

Alcala would rule in favor of Shell on fraudulent concealment issue re royalty underpayment claim
Shell Oil Company v. Ross (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Jenning)
(
oil & gas law litigation - dispute over royalties, breach of contract, unjust enrichment, and fraud theories)
(
fraudulent concealment as tolling theory, constructive notice based on public record)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Terry Jennings     
Before Justices Jennings, Alcala and Higley   
01-08-00713-CV  Shell Oil Company, SWEPI LP d/b/a Shell Western E&P, Successor in Interest to Shell
Western E&P, Inc. v. Ralph Ross    
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Hon. Lamar McCorkle
Dissenting Opinion by Justice Alcala in Shell Oil Co. v. Ross (would hold that lawsuit is barred by
limitations because no evidence establishes
fraudulent concealment of royalty underpayment by Shell)
I conclude that (I) the evidence conclusively shows that a reasonably diligent examination of documents would have revealed
any misstatements within the period of limitations, and (II) no evidence shows that Shell used deception to conceal the wrong,
nor that the Rosses relied on any representations by Shell. See id.
The Rosses made no effort to contact Shell for more information, even though the Code gave them the express right to the
information. At best, the Rosses have shown misstatements by Shell. But misstatements alone do not equate to use of
deception to conceal a wrong. I would hold that no evidence supports Ross’s assertion of fraudulent concealment.

Newsom v. Brazoria County Child Protective Services (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Alcala)
(
termination of parental rights appeal, ineffective assistance of counsel claim overruled)
Appellant, Helen Newsom, challenges the trial court's termination of her parental rights to her minor children. In her sole
issue, Newsom contends that her court-appointed attorney's performance at trial was so deficient as to constitute "no
assistance" altogether. We conclude Newsom failed to show that her attorney rendered ineffective assistance of counsel. We
affirm the trial court's judgment terminating the parent-child
relationship between Newsom and her children.
AFFIRM TC JUDGMENT: Opinion by
Justice Elsa Alcala      
Before Chief Justice Radack, Justices Alcala and Higley   
01-09-00447-CV   Helen Newsom v. Brazoria County Child Protective Services, a Unit of the Texas
Department of Protective and Regulatory Services    
Appeal from 300th District Court of Brazoria County
Trial Court Judge: Hon. K. Randal Hufstetler

American Zurich Ins. Co. v. Samudio (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Alcala)
(carrier loses
workers compensation appeal over worker's impairment rating, plea to the jurisdiction in judicial
review suit affirmed, attorney fees award for prevailing claimant workers comp appeal)
Appellant, Zurich American Insurance Company (Zurich), a workers' compensation carrier, appeals from the trial court's
judgment awarding attorney's fees to Daniel Samudio, appellee, and dismissing its appeal for lack of subject matter
jurisdiction. Zurich had filed a petition for judicial review of a final decision by the Texas Department of Insurance Division of
Workers' Compensation (Division) that held Daniel Samudio, appellee, had a 20 percent impairment rating. In three issues,
Zurich asserts that (1) the trial court had jurisdiction to determine whether Samudio's impairment rating complied with the
Texas Workers' Compensation Act, (2) Samudio's plea to the jurisdiction, taken to its logical extension, would obviate
summary judgment practice, and (3) the trial court should not have ordered Zurich to pay Samudio's attorneys' fees.
We conclude that (1)
the trial court properly dismissed Zurich's judicial review action because it did not have jurisdiction under
the Texas Workers Compensation Act to effect the remedies sought by Zurich, (2) a plea to the jurisdiction is a proper
procedural vehicle for challenging a trial court's subject matter jurisdiction, and (3) the trial court properly ordered Zurich to pay
Samudio's reasonable and necessary attorney's fees because Samudio was the prevailing party in the lawsuit.  We affirm.
AFFIRM TC JUDGMENT: Opinion by Justice Alcala    
Before Chief Justice Radack, Justices Alcala and Higley  
01-08-00233-CV  American Zurich Insurance Company v. Daniel Samudio  
Appeal from 127th District Court of Harris County
Trial Court Judge:  
Hon. Sharolyn P. Wood   

Marin v. IESI TX Corporation (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Opinion on rehearing by Alcala)
(
forgery, misapplication of fiduciary property, fraud, and conversion of checks, exemplary damages)
We conclude that the trial court did not err in the admission of the evidence, that the evidence is legally and factually sufficient,
and that the trial court properly awarded exemplary damages. We affirm.
AFFIRM TC JUDGMENT: Opinion by Justice Elsa Alcala     
Before Justices Keyes, Alcala and Hanks  
01-08-00539-CV  Janell S. Marin v. IESI TX Corporation   
Appeal from 412th Judicial District Court of Brazoria County
Trial Court Judge: Hon. W. Edwin Denman

Brannan v. State of Texas (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Opinion on rehearing by Alcala)
(
Open Beaches Act, effect of moving line of vegetation on existing houses on beach, takings claim)
This appeal concerns the application of the Open Beaches Act at Pedestrian Beach in the Village of Surfside Beach on the
Gulf Coast of Texas. (1) Appellants, Angela Mae Brannan, Individually and as Independent Executrix of the Estate of Bob Albert
Brannan, deceased, Brooks and Mary Porter, Russell and Judy Clinton, Russell Clinton as Independent Executor of the Estate
of Elizabeth Clinton, deceased, Reg and Beaver Aplin, Partners d/b/a Benchmark Developing, Louise Bullard, Diane Loggins
Clark, Joseph Cornell Dewitt, Lisa Marie Dewitt Fuka, Macario Ramirez, Chrissie Dickerson, Jeffrey Dyment, the Marvin
Jacobson Family Holding Company, Charles T., Cathy, James, and Patricia Meek, Mark Palmer, James C. and Patricia
Pursley, Kenneth C. and Andrea Reutzel, S & S Holdings, LLC, and Rogers Thompson, Executor of the Estate of P.E. Kintz,
deceased, (collectively, "the Owners"), have filed a motion for rehearing and for en banc reconsideration of our opinion issued
on August 28, 2009. We deny the rehearing, but we withdraw our opinion and judgment of August 28, 2009 and substitute this
opinion and judgment in their place. Because we issue a new opinion in connection with the denial of rehearing, the Owners'
motion for en banc reconsideration of our prior opinion is moot. Richardson-Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d
469, 472 (Tex. App.--Houston [1 Dist.] 2006, pet. denied).
AFFIRM TC JUDGMENT: Opinion by Justice Alcala     
Before Chief Justice Radack, Justices Alcala and Hanks
01-08-00179-CV  Angela Mae Brannan, Individually and as Independent Executrix of the Estate of Bob Albert
Brannan, Deceased, et al v. The State of Texas, et al    
Appeal from 239th District Court of Brazoria County
Trial Court Judge: Hon. Patrick Edward Sebesta

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

Simien v. Unifund CCR Partners (pdf) (Tex.App.- Houston [1st Dist.] Dec. 10, 2009)(Alcala)
(credit card debt suit)(judgment for debt buyer affirmed)
AFFIRM TC 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   

Wright v. Atlantic Credit and Finance, Inc.  (pdf)(Tex.App.- Houston [1st Dist.] Dec. 10, 2009)(Alcala)
We conclude Wright did not plead the
statute of limitations and Wright's 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. We affirm.
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

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)
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

Mensa-Wilmot v. Smith International, Inc. (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Alcala) (breach of
contract, option contract, untimely amendment of pleadings prior to summary judgment hearing, finality)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala     
Before Justices Keyes, Alcala and Hanks   
01-08-00481-CV  Graham Mensa-Wilmot v. Smith International, Inc.   
Appeal from 165th District Court of Harris County
Trial Court Judge: Hon.
Elizabeth Ray

DISSENTING OPINIONS BY JUSTICE ALCALA

Alcala would rule in favor of Shell on fraudulent concealment issue re royalty underpayment claim
Shell Oil Company v. Ross (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Jenning)
(
oil & gas law litigation - dispute over royalties, breach of contract, unjust enrichment, and fraud theories)
(
fraudulent concealment as tolling theory, constructive notice based on public record)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Terry Jennings     
Before Justices Jennings, Alcala and Higley   
01-08-00713-CV  Shell Oil Company, SWEPI LP d/b/a Shell Western E&P, Successor in Interest to Shell
Western E&P, Inc. v. Ralph Ross    
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Hon. Lamar McCorkle
Dissenting Opinion by Justice Alcala in Shell Oil Co. v. Ross (would hold that lawsuit is barred by
limitations because no evidence establishes
fraudulent concealment of royalty underpayment by Shell)

Jones v. City of Houston (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)
(
TTCA, drowning death of child, culvert without safety bars) ("we hold that the City's summary judgment
evidence established as a matter of law that the Jones siblings could not recover as bystanders for any
mental anguish and emotional trauma caused by their brother's drowning. ) (
TTCA, drowning death of child,
uncovered culvert, siblings' bystander claim for wrongful death of brother rejected, drowning deaths)
AFFIRM TC JUDGMENT: Opinion by
Justice Jennings    
Before Justices Jennings, Alcala and Higley  
01-08-00905-CV  Landon Jones and Loren Jones v. City of Houston  
Appeal from 215th District Court of Harris County
Trial Court Judge:
Hon. Levi J. Benton
Dissenting Opinion by Justice Alcala in Jones v. City of Houston     
("Courts have uniformly held that a loved one need not actually see the deceased take his last breath if
there is an "experiential perception" of it. ...  Because the reasonable inference of the evidence in a light
favorable to the non-movant shows that the siblings were present when Logan drowned, I respectfully
dissent to the majority's affirmance of the trial court's summary judgment, which precluded a jury trial in this
case.")

Alacala stands her ground in defense of panel opinion she authored and responds to Jenning's
dissent on motion for en banc rehearing, which he would grant because of error by the panel
Acala's Concurrence in Denial of En Banc Review in Macy v. Waste Management, Inc. (Tex.App.- Houston
[1st Dist.] Aug. 28, 2009) (Concurrence with denial of en banc reconsideration by
Justice Alcala)
proper designation of opinions issues by the court)
OPINION CONCURRING WITH THIS COURT'S JUDGMENT:
Concurring Opinion by Justice Alcala    
Before Chief Justice Radack, Justices Alcala and Hanks  
01-07-00276-CV        Griffin Macy v. Waste Management, Inc.   
Appeal from 157th District Court of Harris County
Trial Court Judge: The
Honorable Randall Wilson

Also see --> 2009 Alcala Opinions in Civil Appeals
2008 Opinions in Civil Cases by Justice Elsa Alcala
2007 Civil Appellate Opinions by Justice Elsa Alcala
Future Seat of the Houston Court of Appeals Old Harris County Civil Courthouse
HOUSTON JUSTICES
1st and 14th Court of Appeals

Justice Alcala, Elsa
Justice Anderson, John
Justice Bland, Jane
Justice Brown, Jeff
Justice Boyce, William (Bill)  
Justice Christopher, Tracy
Justice Edelman, Richard (former)
Justice Fowler, Wanda (former)
Justice Frost, Kem Thompson
Justice Guzman, Eva (former)
Justice Hanks, George C., Jr.
Chief Justice Hedges, Adele
Justice Higley, Laura Carter
Justice Hudson, Harvey J. (former)
Justice Jennings, Terry
Justice Keyes, Evelyn
Justice McCalley, Sharon
Justice Mirabal, Margaret (visiting)
Justice Massengale, Michael
Justice Nuchia, Sam (former)
Chief Justice Radack, Sherry
Justice Seymore, Charles
Justice Sharp, Jim
Justice Sullivan, Kent
Justice Taft, Timothy (Tim)(former)
Justice Wilson, Davie (visiting)
Justice Yates, Leslie Brock (former)

Also see --> General Information on
Houston Courts of Appeals, Appellate
Judges, and 2008 Judicial Elections   

Houston Courts & Cases Blog  
March 2011 Update: Alcala elevated to the Texas court of last resort in criminal cases

Gov. Perry Appoints Alcala as Judge of the Court of Criminal Appeals

Texas Governor Rick Perry appoints Elsa Alcala of Houston as judge of the Texas Court of
Criminal Appeals for a term to expire at the next general election.

Text from 3/22/2011 press release:

Alcala is a justice of the First Court of Appeals in Harris County, and former judge of the 338th District
Court in Harris County. She is a member of the State Bar of Texas, Houston Bar Association Appellate
Section, Fort Bend County Bar Association, and Mexican American Bar Association of Houston, and a
fellow of the College of the State Bar of Texas. She is also vice chair of the State Bar of Texas Criminal
Pattern Jury Charge Committee, board secretary of the Reed Elementary School Parent-Teacher
Organization, and a troop leader for the San Jacinto Council Girl Scouts.
Alcala received a bachelor's degree from Texas A&M University at Kingsville and a law degree from the
University of Texas School of Law, and is board certified in criminal law.
This appointment is subject to Senate confirmation.

.