33rd / 424th District Courts

Set for oral argument on 2/16/05 in the Texas Supreme Court is the following case from the 33rd. Because of the interest in this area generally of equine activities, it may be of fairly broad interest. I granted summary judgment for the camp and was reversed by the 3rd Court ( 124 S.W.3d 633) which held that the immunity was only for factors beyond the control of the camp. (update: the review in the Sup. Ct. was withdrawn).

The following is taken from the online Sup. Ct. emails of synopses of cases and is of broad enough interest to replicate here.

03-0448

Texas A&M University v. Paul A. Bishop

from Galveston County and the 14th District Court of Appeals, Houston

Justices Brister and Green did not participate

REVERSED AND DISMISSED, opinion by Justice O’Neill:

The principal issues in this
personal-injury suit arising from an accidental stabbing during a
student play are (1) whether the play’s director was an independent
contractor or university employee and (2) whether, if the directors
were independent contractors, the Texas Tort Claims Act’s exception for
the use of tangible personal property is triggered when a student actor
accidentally stabbed another with a knife provided by the independent
contractor during a play the faculty advisors supervised. In this case
Bishop, a student actor, was stabbed by another student during
performance of the play “Dracula.” The play’s director had approved use
of a real knife with a “stab pad,” but the faculty drama club advisors
testified they were unaware of that decision. University policy forbids
dangerous weapons on campus. The court of appeals affirmed the trial
court’s judgment in Bishop’s favor, holding that the faculty advisors
were negligent in supervision of the play and that negligence was a use
of tangible personal property.

The Court of Criminal Appeals, in an en banc proceeding, held that statute authorizing the withdrawal of guilty or nolo contendere pleas in felony cases did not apply to proceedings to revoke community supervision. See Gutierrez v. State, 108 S. W. 3d 304 (Tex. Crim. App., 2003). The reference is to Vernon's Ann.Texas C.C.P. Art. 26.13 which provides in pertinent part that:

(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:

Gray v. State, 134 S. W. 3d 471, (Tex. App. - Waco, 2004). It is too late to raise the issue in a hearing on Motion to Adjudicate relating to failure to admonish defendant of having to register as a sex offender (Manuel v. State, 994 S. W. 2d 658 [Tex. Crim. App. 1999) and improper to appeal on the basis of ineffective assistance of counsel in the original hearing (Art. 42.12 Sec.5[b] C.C.P.)

I continue to see a bit of confusion about this issue. Please see Jones v. State, 98 S. W. 3d 700 (Tex. Crim. App. 2003). The Court refers to its earlier opinion in Ex parte Axel, 757 S.W.2d 369 (Tex.Cr.App.1988), and recalls:

keywords: confrontation clause, sixth (6th) amendment.
The case: Crawford v. Washington, ___ U.S. ___, 124 S. Ct 1354 (2004) (158 L.Ed.2d 177, 72 USLW 4229, 63 Fed. R. Evid. Serv. 1077, 4 Cal. Daily Op. Serv. 2017, 2004 Daily Journal D.A.R. 2949).

From Whitehead v. State, NO. 2077-02 (Crim. App. 2004), http://caselaw.findlaw.com/scripts/getcase.pl?court=tx&vol=app/207702a&invol=1 We frequently see some confusion about trial counsel's obligation regarding the appeal, or at least initiating it.

The Honorable Greg Abbott
Attorney General of Texas
Attn: Opinion Committee
P.O. Box 12548
Austin, Texas 78711-2548

Re: Is the Texas grandparent access statute, Section 153.433 of’the Texas Family Code, unconstitutional based on the United States Supreme Court ruling in Troxel v. Granville, 530 U.S. 57 (2000)

U.S. v. Gould, No. 02-30629 (5th Cir. 2004)(majority opinion) or see
version including dissenting opinions



Case involves the "protective sweep" exception on an entry by police into a home. No contention of a "hot pursuit" exception or exigent circumstances exception. Assertion is of a valid "protective sweep" under Maryland v. Buie, 110 S.Ct. 1093 (1990). Government attempts to distinguish the limitation in i>U.S. v. Wilson, 36 F.3d 1298 (5th Cir. 1994) limiting the protective sweep when incident to arrest.

(From the Dennis Kennedy blog, this is an interesting area that will continue to grow steadily, even out here in the boonies. The reference to Discovery Resources Org will take you to some fascinating discussion and resources regarding "e-discovery" which -- like it or not -- you have to come to grips with. /glj)

DiscoveryResources.org and My New Column with George Socha - I'm writing a new column with e-discovery expert George Socha on DiscoveryResources.org. The first column, a survey of today's e-discovery landscape has just been published. For those in Chicago this week, the ABA TechShow will have a major program on electronic discovery. [

FELLERS V. UNITED STATES

Held: The Eighth Circuit erred in holding that the absence of an “interrogation” foreclosed petitioner’s claim that his jailhouse statements should have been suppressed as fruits of the statements taken from him at his home. Pp. 4—6.

Based on 6th Amd right to counsel, not the 5th.

This case reminds us that not every assertion of a defendant's "odd behavior" rises to the level of requiring a competency hearing. The judge is a "gatekeeper" regarding that inquiry.

"Article 46.02(b), section 2(b) provides: “If during the trial evidence of the defendant's incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding ...
Bennett, Chanda L. v. The State of Texas

i.e. don't try an insufficiency/no evidence/abuse of discretion point if you're part of the problem creating a void in the evidence.

". . . when a party does not provide values for property to be divided, that party may not complain on appeal that the trial court lacked sufficient information to properly divide the property. Vannerson v. Vannerson, 857 S.W.2d 659, 670 (Tex. App.-Houston [1st Dist.] 1993, writ denied)."

Texaco v. Hon. John Dominquez (Tex. App. - San Antonio 1991) precludes allowing P to "rummage" D's files merely because P believes the culling of responsive materials by counsel for D may not have uncovered everything that should have been produced. In spite of acknowledging P's frustration, the court spoke directly to the "no fishing expedition" concepts of modern discovery.

However, it also dealt with a trial court order for D (Texaco) to provide "a more responsive answer" to certain requests for production. The order did not specify how D must be more responsive. The court then, in this case involving a large number (100,000) of documents, stated: