CCBA Newsletter June Docket Call For June has

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                                                   Corpus Christi, TX 78478
PERMIT NO. 113                                     555 N. Carancahua, STE 260
Corpus Christi, TX
  U.S. Postage

     Docket Call
For June has
due to a scheduling conflict. It will be rescheduled. Please
stay tuned for the details. We apologize for any inconven-
ience we have caused.
              The July Luncheon will be Wednesday, July 11th
                                                                                                      Kern, L.L.P.                                         to an inspiring presentation urging all to

                                                                                                                                                           take action when they believe change is
                                                                                                                                                           required and emphasizing the Law Day
                                                                                                                                                           theme that youth should not be deterred
                                                                                                                                                           from acting because of their age.
                                                        June 2007                                                                                               Baseball with the Bench
                                                                                                                                                           The Corpus Christi Young Lawyers Asso-
 James W. Wray, Jr. Named                           good standing of the State Bar of Texas,
                                                    and have been 36 years of age or                                                                       ciation’s annual “Baseball with the
Recipient of Judge Nye Award                        younger on June 1, 2006. This year the                                                                 Bench” will be Thursday, June 21st. The
The Judge Paul W. Nye Professionalism                                                                                                                      event will begin in the Federal Court-
                                                    recipient of Outstanding Young Lawyer
                                                                                                                                                           house Jury Room at 3:30 p.m. with a
Award honors the local attorney who                 award is Lance Andrew Watt of the Nue-
best meets the qualities for which Judge            ces County District Attorney’s Office.                                                                 two-hour trial tactics CLE. Immediately
Nye is known, i.e., the attorney who is                                                               Patricia Barber-Wendell expresses appreciation for   following the CLE all will adjourn to the
                                                                                                      Liberty Bell Award as Ann Hennis looks on holding    Hooks “Party Porch” for comradery with
well-respected not only for his/her legal                                                             the sculpture symbolizing the award
knowledge but also for his/her profes-                                                                                                                     jurists and colleagues, food, libation, and
                                                                                                                                                           baseball watching the Hooks beat the
sionalism, honesty, integrity, kindness,                                                                   Robert C. Hilliard Named                        Frisco Roughriders. The cost will be
fair play, and respect for others. It is                                                                   CCALP Boss of the Year
awarded annually. This year’s recipient                                                                                                                    $85.00 for members, $100.00 for non-
                                                                                                      The Corpus Christi Association of Legal              members.
is James W. Wray, Jr., Of Counsel,
                                                                                                      Professionals has named Robert C. Hil-
Chaves, Resendez & Rivero, L.L.P.                                                                     liard of Hilliard and Munoz the Boss of the          Members can purchase additional tickets
                                                                                                      Year.                                                for the game for $45.00; non-members
                                                                                                                                                           can do so for $55.00. In order to reserve
                                                    Lance Andrew Watt acknowledges receipt of the     CCALP Names Priscilla Garcia                         your place, please use the form at the
                                                    Corpus Christi Young Lawyers Association’s Out-
                                                    standing Young Lawyer Award                       Legal Professional of the Year                       bottom of the flyer or the e-mailed flyer or
                                                                                                      Priscilla Garcia of the Watts Law Firm is            go to the CCBA website,, and
                                                        Patricia Barber-Wendell                       the Corpus Christi Association of Legal              download the form. Submission instruc-
                                                                                                      Professionals Legal Professional of the              tions are also located there.
                                                       CCYLA’s Liberty Bell Award
                                                                                                      year.                                                The jurists who have indicated they will
                                                               Recipient                                                                                   participate are the Honorable Janis Gra-
                                                    The Corpus Christi Young Lawyers Asso-              Judge Carl E. Stewart of the                       ham Jack, the Honorable Richard S.
                                                    ciation presents the Liberty Bell Award            Fifth Circuit Law Day Speaker                       Schmidt, the Honorable Brian Owsley,
James W. Wray, Jr., acknowledges receipt of Judge   annually. It recognizes an outstanding
Paul Nye Professionalism Award as Bar President                                                       The guest speaker at this year’s Law Day             the Honorable Bobby Galvan, the Honor-
Doug Mann looks on
                                                    non -lawyer who has made selfless contri-
                                                                                                      Luncheon was the Honorable Carl E.                   able Sandra Watts, the Honorable
                                                    butions to our community to strengthen
                                                                                                      Stewart, Circuit Judge, the United States            Marisela Saldana, the Honorable Joel B.
                                                    the effectiveness of the American system
                                                                                                      Court of Appeals, Fifth Judicial Circuit.            Johnson, the Honorable Jose Longoria,
 Lance Andrew Watt CCYLA’s                          of justice by instilling a better understand-
                                                                                                                                                           the Honorable John B. Martinez, the
                                                    ing and appreciation of the law. The              The over 180 in attendance were treated
  Outstanding Young Lawyer                                                                                                                                 Honorable James E. Klager, and the
The Corpus Christi Young Lawyers As-                Award recognizes community service that
                                                                                                                                                           Honorable Carl E. Lewis.
sociation has chosen its Outstanding                promotes a better understanding of gov-
Young Lawyer of the Year. Awarded                   ernment, especially the Bill of Rights,                                                                If you have any questions, please call us
annually, the Outstanding Young Lawyer              encourages greater respect for the law                                                                 at 883-4022 or e -mail us at sgonza-
Award recognizes one young lawyer                   and the courts, stimulates a deeper sense                                                    
who has demonstrated exemplary pro-                 of individual responsibility so that citizens
                                                    recognize their duties and their rights,                                                                  Miller High Student Named
fessional proficiency, service to the pro-
fession, and service to the community.              contributes to the effective functioning of                                                              Flynn Scholarship Recipient
                                                    our institutions of government, and instills                                                           Adan “Ace” Zamora has been named the
In order to be eligible, the attorney must
                                                    a better understanding and appreciation                                                                Captain Dan and Barney Flynn Scholar-
be licensed to practice law in Texas, be
a member of the Corpus Christi Young                of the law. This year’s recipient is                                                                   ship winner for this year. Mr. Zamora
                                                    Patricia Barber-Wendell, a legal assistant                                                             attends Roy Miller High School.
Lawyers Association, be a member in                                                                   The Honorable Carl E. Stewart addresses the Law
                                                    with Hartline, Dacus, Barger, Dreyer and          Day Luncheon

                                                          CCBA Newsletter June 2007 Page 1                                                                       CCBA Newsletter June 2007 Page 2
         OFLA May Meeting                          choice of meeting place). Stories are             Time to Pay 2007 —- 2008                    according the Court.
                                                   exchanged, the current status of other
The Old Fellows/Folks [depending on                very experienced lawyers who practiced
                                                                                                         Membership Dues                         JOSHUA LEE BURKETT v. THE STATE
your political correctness] Lawyers Asso-                                                                                                        OF TEXAS, COURT OF APPEALS OF
                                                   in the area is related, and sports, politics,   Don’t forget — Membership dues for
ciation (We are told that there are other                                                                                                        TEXAS, SIXTH DISTRICT, TEXAR-
                                                   weather, and even a little law are often        2007 — 2008 are due on or before July
                                                                                                                                                 KANA, 196 S.W.3d 892; 2006 - No
                                                   discussed. Dewitt Hale came all the way         1st. Statements were sent the week of
                                                                                                                                                 subsequent appellate history
                                                   from Austin for the May meeting.                May 14th. If you have any questions,
                                                                                                   please call us at 883-4022.                   In a prosecution for terroristic threats
                                                      Criminal Law Seminar Held                                                                  against a judge, that same judge can
                                                                                                      Judge Mike Westergren’s                    have no part whatsoever in the trial of
                                                           Friday May 18th                            Recent Case Summaries                      the case including even selection of the
                                                   The “2007 Advanced Criminal Law Semi-           MARY JANE NEALY v. SOUTHLAWN                  jury to decide punishment after a plea of
                                                   nar” was presented Friday, May 19th, at         PALMS APARTMENTS,COURT OF AP-                 guilty.
                                                   the Ortiz International Convention Center.      PEALS OF TEXAS, FIRST DISTRICT,               MARK D. LARSON, M.D., P.A. AND
                                                   It was the first presented by the Criminal      HOUSTON,196 S.W.3d 386; 2006 - No             MARK D. LARSON, M.D., v. MARY
                                                   Defense Lawyers Section. The seminar            subsequent appellate history.
Jim Wray and Eugene Coffey at the May meeting of                                                                                                 MARTHA DOWNING, SUPREME
the OFLA                                           provided 6.75 hours of CLE with speciali-                                                     COURT OF TEXAS, 197 S.W.3d 303;
                                                   zation credit for Criminal Law and Juve-        The tenant prevails in an eviction appeal
                                                                                                   due to failure to supplement discovery        2006
interpretations of the acronym.) is an             nile Law. Over 60 attorneys attended.
                                                   scale. A special thanks to Jerry Dor-           and, I am not making this up, incident of     Supreme Court upheld the trial court’s
informal organization comprised of very
                                                   sey for a job well done.                        “mooning” did not constitute proper           exclusion of an expert medical witness
experienced lawyers from the Corpus                                                                grounds for eviction. This case also in-      who had not performed the surgery in
Christi area. They meet almost monthly
                                                                                                   volves the requirement a landlord must        question for over 15 years. The trial
at the Ancient Mariner Restaurant (We
                                                                                                   satisfy when leasing under section 8 of       court is to consider whether the expert
are told that this is just a coincidence —                                                         the Housing Act of 1927.                      was actively practicing medicine and
the name had nothing to do with the
                                                                                                   MARIA JOCSON, M.D. AND WOMAN'S                rendering medical care services relevant
                                                                                                   HOSPITAL OF TEXAS, INC. v. JOE                to the claim.
                                                                                                   CRABB, COURT OF APPEALS OF                    DREW WAYNE ODOM v. THE STATE
             Donald M. Feferman, J.D., C.P.A.                                                      TEXAS, FIRST DISTRICT, HOUS-                  OF TEXAS, COURT OF APPEALS OF
                                                                                                   TON,196 S.W.3d 302; 2006                      TEXAS, THIRTEENTH DISTRICT,
                    Attorney At Law                                                                Appellate court reduces ad litem fee from     CORPUS CHRISTI, 200 S.W.3d 333;
                                                                                                   $120,077 to $14,300. The ad litem can         2006 - No subsequent appellate history
                            Wharton School of Business,                                            only be compensated for evaluating the        Motion to suppress evidence in a drug
                           University of Pennsylvania-1962                                         fairness of the settlement and it’s fair-     prosecution should have been granted
                             Harvard Law School-1965                                               ness to the child.                            when permission to search had been
                                                                                                   SABRINA YONKO v. DEPARTMENT OF                given by the defendant’s brother in law.
                  Helping Businesses Solve Their Legal Problems Since 1967                                                                       There were, of course, no exigent cir-
                                                                                                   FAMILY AND PROTECTIVE SER-
                      Commercial and Securities Arbitration                                        VICES,COURT OF APPEALS OF
                                                                                                   TEXAS, FIRST DISTRICT, HOUS-                  DAVID STERLING v. THE STATE OF
                    Commercial Organizations and Transactions                                      TON,196 S.W.3d 236; 2006 - No sub-            TEXAS, COURT OF APPEALS OF
                           Real Estate Transactions                                                sequent appellate history                     TEXAS, THIRTEENTH DISTRICT,
                                                                                                                                                 CORPUS CHRISTI, 200 S.W.3d 842;
                     361-883-1830                   800-966-1830                                   Termination of mother’s parental rights
                                                                                                   was reversed due factual insufficiency.       2006 - No subsequent appellate history
                                                                                                   Guardian ad litem had recommended             Mere possession of drug in a house is
                                1450 Wells Fargo Tower                                             against termination. Mother had failed to     not sufficient to seize the house under
                               Corpus Christi, Texas 78477                                         abide by her conditions of probation re-      the forfeiture statutes. There was no
                                                                                                   sulting in her incarceration; and child had   evidence that the house was being used
                                                                         engaged in some mischievous acts, like        to sell drugs or other unlawful purposes
                                                                                                   stealing cookies from a leasing company,      other than habitual use of drugs.
                                                               etc.; but it was not enough to terminate                        (Continued Next Page)

                                                   CCBA Newsletter June 2007 Page 5                                                              CCBA Newsletter June 2007 Page 6
Judge Westergren’s Summaries Cont’d          ample of the fox guarding the henhouse,         Judge Westergren’s Summaries Cont’d
                                             a trial judge is empowered to make a
                                             finding of frivolousness, and according to     EX PARTE ANGEL AVILA, COURT OF                 Mediation Services
                                             this case it matters not whether it is a       APPEALS OF TEXAS, TENTH DIS-
CORPUS CHRISTI, 200 S.W.3d 832,              DHS or private case or whether the par-        TRICT, WACO, 201 S.W.3d 824, 2006                  Family Law
                                             ties are indigent or non-indigent.             No subsequent appellate history
2006 - No subsequent appellate history                                                                                                         Probate Law
                                                                                            Appellate court required trial court to
Appellate court allows the changing of       GRADY LEWIS WARNER v. THE STATE
child’s name to that of the unwed father     OF TEXAS, COURT OF APPEALS OF
                                                                                            release defendant on a personal recogni-
                                                                                            zance bond where there was substantial
                                                                                                                                                     Civil Actions
over his objection, since it was found to    TEXAS, FOURTEENTH DISTRICT,                    delay in going to trial and defendant was
be in the best interest of the child. Fa-    HOUSTON, 201 S.W.3d 197, 2006 -                unable to make any amount of bond.
                                                                                                                                                $395 per party, full day
ther’s argument that it would cause dis-     Petition for discretionary review granted
card with his current wife and as a con-                                                    The Court cited Article 17.151 CCP.                 $250 per party, half day
                                             There can be no escape without a com-          This defendant was not homeless before
sequence his relationship with the sub-
                                             pleted act of arrest. Here the officer at-     his incarceration but by virtue of that
ject child was rejected by the court since
the current wife already knew about the      tempted to arrest defendant but he got
                                             away. Appellate court acknowledges that
                                                                                            incarceration was unable now to make
                                                                                            bond. Presumably this ruling would re-                  F. Lakhani
                                             this is a bad law as it encourages crime       quire that the defendant have some roots
IN THE INTEREST OF T.C. AND G.C.,            but that it was bound by prior precedent.      in the community.
                                             It will be interesting to see what the Court                                                           1205 Airline Rd.
                                             of Criminal Appeals does.                      DANIEL JOHN SHEEHAN v. THE
200 S.W.3d 788, 2006                                                                        STATE OF TEXAS, COURT OF AP-                      Corpus Christi, TX 78412
                                                                                            PEALS OF TEXAS, TENTH DISTRICT,
Although it may appear to some an ex-                         Cont’d Next Page              WACO, 201 S.W.3d 820, 2006 - No                           361.993.1313
                                                                                            subsequent appellate history
                                                                                            Passive non-cooperation will not support
                                                                                            a conviction for resisting arrest. How-       Speaking of the !3th Court of Appeal, I
                                                                                            ever, if any harm to the officer results      cite this case as there maybe local inter-
                                                                                            from act of non-cooperation a different       est. Apparently the Court toned down its
                                                                                            result can be expected.                       initial ruling concerning lame duck Jus-
                                                                                                                                          tice which resulted in the denial of ex-
 WANT TO BUILD YOUR PRACTICE?                                                               LMB, LTD. v. ROSA MARIA MORENO,
                                                                                            ET AL., SUPREME COURT OF TEXAS,
                                                                                                                                          traordinary relief by the Supreme Court.
                                                                                                                                          I must commend Ruth Kollman for
                                                                                            201 S.W.3d 686, 2006                          her willingness to take such a case.
      Try Joining the Corpus Christ Bar Association’s                                       The 13th Court of Appeal had reversed a       We should all be willing to do this on
                                                                                            summary judgment in favor of a property       occasion.

                                                                                            owner due to an affidavit filed by the
                                                                                            treating physician. The Supreme Court         DEBRA TIJERINA v. THE STATE OF
                                                                                            reasoned that the physician’s affidavit did   TEXAS, COURT OF APPEALS OF
                                                                                            not contain competent summary judg-           TEXAS, SECOND DISTRICT, FORT
                                                                                                                                          WORTH, 202 S.W.3d 299, 2006 - Peti-
  We Refer Over 400 Clients To Attorneys                                                    ment evidence of either cause-in-fact or
                                                                                            foreseeability.                               tion for discretionary review refused

      in Corpus Christi Each Month                                                          IN RE THE HONORABLE ERRLINDA
                                                                                                                                          Not allowing the defendant to ask
                                                                                                                                          whether prospective jurors could believe
                                                                                            CASTILLO, JUSTICE, THE COURT OF               anything that a convicted felon had to
                                                                                            APPEALS FOR THE THIRTEENTH DIS-
      Call 883-4022 for More Information                                                                                                  say was error.
                                                                                            TRICT OF TEXAS, IN HER OFFICIAL
                                                                                            CAPACITY, RELATOR, SUPREME
 This service is certified as a lawyer referral service as required by the                  COURT OF TEXAS, 201 S.W.3d 682,
         State of Texas under Chapter 952, Occupations Code                                 2006
                                                                                                                                                          Cont’d Next Page

                                             CCBA Newsletter June 2007 Page 7                                                             CCBA Newsletter June 2007 Page 8
Judge Westergren’s Summaries Cont’d                 Help Your Bar Association
TUAN AHN DANG v. THE STATE OF                      Improve to Meet Your Needs
TEXAS, FOURTEENTH DISTRICT,                                     HOW?
HOUSTON, 202 S.W.3d 278, 2006 - No
subsequent appellate history                      Tells us what you do not like
I may have missed this in the Court of
Criminal appeals, but apparently it had
                                                 Tell us when we make mistakes
previously ruled that 20 minutes was                  Tell us what you want
insufficient time for closing argument in a
capital murder prosecution. The highest                         HOW?
court remanded to the intermediate court
for a harm analysis which it found and           Communicate with a member of
remanded for a new trial.
                                                    the Board of Directors
TEDDY OWENS v. THE STATE OF                                        or
TEXAS, SEVENTH DISTRICT, AMA-                         Call the Staff at 883-4022
RILLO, 202 S.W.3d 276, 2006 - Petition                             Or
for discretionary review refused                           E-mail the Staff at

The interesting thing about this case is      
that I think one of my colleagues did the   
same thing in the late 90’s and was re-
versed. Here the trial judge excused a
juror who had a special needs child and        ment on the weight of the evidence. Trial
was not able to make provision for his         court’s comments regarding the differ-
care during the trial. Juror insisted that     ences between the Intoxilyzer used on
she would not be able to focus on the          the defendant and the newer model, as
trial. Judge’s finding that she was dis-       well as the reasons the police didn’t have
abled and therefore excused her was            the newer model were directly related to
upheld.                                        a material issue. It is important to note
                                               that the evidence against the defendant
HEATH MATTHEW HERRING v. THE                   was not deemed to be overwhelming.
764, 2006                                      CORPORATION, RELATOR, SUPREME
                                               COURT OF TEXAS, 203 S.W.3d 314,
Statement to victim that defendant had a       2006
knife coupled with threat to kill and taking
money was sufficient to establish crime.       Trial court’s refusal to take case off the
Fact that victim never saw the knife, in       jury docket resulted in mandamus by the
the Court of Criminal Appeals opinion, is      Supreme Court requiring him to place
irrelevant.                                    case on non-jury docket because of a
                                               waiver of jury contained in the promissory
ROBERT J. SIMON v. THE STATE OF                note.
HOUSTON, 203 S.W.3d 581, 2006 - No
subsequent appellate history
D.W.I. conviction reversed due to com-

                                               CCBA Newsletter June 2007 Page 9

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