Wheeler factors in Texas

2024See Masonheimer, 220 S.W.3d at 507–08; 4 Enoch argues that Prosecutor A’s statement during the mistrial hearing that the only thing she could think of regarding her suspension was that she forgot to pay her bar dues “strongly suggests” that she was “already aware of her [suspended] status with the State Bar.” As the trier of fact, the trial court was free to reject that view of the prosecutor’s testimony.

2024See Masonheimer, 220 S.W.3d at 507–08; 4 Enoch argues that Prosecutor A’s statement during the mistrial hearing that the only thing she could think of regarding her suspension was that she forgot to pay her bar dues “strongly suggests” that she was “already aware of her [suspended] status with the State Bar.” As the trier of fact, the trial court was free to reject that view of the prosecutor’s testimony.

2013See Wheeler, 157 S.W.3d at 442 (“On this record, the lower courts could have concluded that [the pro se litigant] was wrong on her dates and wrong on how to correct them, but not that either was the result of intent or conscious indifference.”); see also Imkie v. Methodist Hosp., 326 S.W.3d 339, 346 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“Imkie, therefore, meets the Wheeler test for establishing that her failure to respond to the motion for summary judgment and her failure to ask for an extension of time to respond to the motion for summary judgment were mistakes based on her misunders

2013See Wheeler, 157 S.W.3d at 442-44 ; Carpenter, 98 S.W.3d at 685 ; see also Imkie v. Methodist Hosp., 326 S.W.3d 339, 346 (Tex.App.-Houston [1st Dist.] 2010, no pet.) (holding that pro se litigant who appeared in court under belief that her appearance was all that was needed to respond to summary judgment established that her failure to respond or ask for extension of time were mistakes based on misunderstanding of law and satisfied Wheeler test).

2025Id.

2023See Ex parte Wheeler, 203 S.W.3d at 323–24; see also TEX.

2015App. 2007). 21 Id. at 376 . 22 Roberson, 455 S.W.3d at 263 . 23 There was a dissent in this case, but the dissent ignored this Court’s binding Wheeler factors (which the majority applied with ease) and advocated for a different and novel standard which has never been applied by this Court.

2015While Justice Dauphinot recites that the Court of Criminal Appeals requires proof that the prosecution intended to cause a mistrial for jeopardy to bar a second prosecution, Justice Dauphinot ignores that standard in favor of her own standard: “At some point, appellate courts must hold that the conduct is so egregious that the party cannot avoid its consequences.”34 Instead of applying the Court of Criminal Appeals factors in Ex parte Wheeler (as the majority opinion does), Justice Dauphinot ignores the Wheeler factors and seeks to apply her own standard formulated ad hoc, unmoored from the pr

2018See id. 8 Courts have modified the Wheeler factors following the disavowment of Bauder by the court of criminal appeals in Lewis to exclude an original sixth factor — reckless misconduct by the prosecutor.

2018See id. 8 Courts have modified the Wheeler factors following the disavowment of Bauder by the court of criminal appeals in Lewis to exclude an original sixth factor — reckless misconduct by the prosecutor.

2025See Martinez, 560 S.W.3d at 697 (“In determining whether the habeas court abused its discretion in denying Martinez’s application, we consider the evidence in the light most favorable to the court denial using the Wheeler factors.”).

2025See Martinez, 560 S.W.3d at 697 (“In determining whether the habeas court abused its discretion in denying Martinez’s application, we consider the evidence in the light most favorable to the court denial using the Wheeler factors.”).

2015Huron Portland Cement, 362 U.S. at 443 (evenhanded local regulation to effectuate a legitimate local public interest is valid unless unduly burdensome on interstate commerce).

2015Huron Portland Cement, 362 U.S. at 443 (evenhanded local regulation to effectuate a legitimate local public interest is valid unless unduly burdensome on interstate commerce).

2025See Ex parte Gilbert, No. 12-22- 00288-CR, 2023 WL 3033213 , at *3-4 (Tex. App.—Tyler Apr. 20, 2023, no pet.) (applying Wheeler factor in pretrial habeas proceeding based on double jeopardy); State v. Rushing, No. 09-16-00423-CR, 2017 WL 4182316 , at *6 (Tex. App.—Beaumont Sept. 20, 2017, pet. ref’d); State v. Yetman, 516 S.W.3d 33, 36-37 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (same); Ex parte Roberson, 455 S.W.3d 257, 260 (Tex. App.—Fort Worth 2015, pet. ref’d) (same); - 11 - 04-24-00290-CR The trial court found that “plausible explanations were given for such occurrences, and such ac

2025See Ex parte Gilbert, No. 12-22- 00288-CR, 2023 WL 3033213 , at *3-4 (Tex. App.—Tyler Apr. 20, 2023, no pet.) (applying Wheeler factor in pretrial habeas proceeding based on double jeopardy); State v. Rushing, No. 09-16-00423-CR, 2017 WL 4182316 , at *6 (Tex. App.—Beaumont Sept. 20, 2017, pet. ref’d); State v. Yetman, 516 S.W.3d 33, 36-37 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (same); Ex parte Roberson, 455 S.W.3d 257, 260 (Tex. App.—Fort Worth 2015, pet. ref’d) (same); - 11 - 04-24-00290-CR The trial court found that “plausible explanations were given for such occurrences, and such ac

2013See Wheeler, 157 5.W.3d at 442 (“On this record, the lower courts could have concluded that [the pro se litigant] was wrong on her dates and wrong on how to correct them, but not that either was the result of intent or conscious indifference.”); see also Imkie v. Methodist Hosp., 326 S.W.3d 339, 346 (Tex.App.-Houston [1st Dist.] 2010, no pet.) (“Imkie, therefore, meets the Wheeler test for establishing that her failure to respond to the motion for summary judgment and her failure to ask for an extension of time to respond to the motion for summary judgment were mistakes based on her misunderst

2013See Wheeler, 157 5.W.3d at 442 (“On this record, the lower courts could have concluded that [the pro se litigant] was wrong on her dates and wrong on how to correct them, but not that either was the result of intent or conscious indifference.”); see also Imkie v. Methodist Hosp., 326 S.W.3d 339, 346 (Tex.App.-Houston [1st Dist.] 2010, no pet.) (“Imkie, therefore, meets the Wheeler test for establishing that her failure to respond to the motion for summary judgment and her failure to ask for an extension of time to respond to the motion for summary judgment were mistakes based on her misunderst

2025See Ex parte Lewis, 219 S.W.3d at 336-37, 371 ; see also Ex parte Martinez, 560 S.W.3d at 697 (applying Wheeler factors in review of pretrial habeas based on double jeopardy).

2015App. 2007). 21 Id. at 376 . 22 Roberson, 455 S.W.3d at 263 . 23 There was a dissent in this case, but the dissent ignored this Court’s binding Wheeler factors (which the majority applied with ease) and advocated for a different and novel standard which has never been applied by this Court.

2022See Ex parte Wheeler, 203 S.W.3d at 323-34 ; see also Kniatt, 206 S.W.3d at 664 .

2019See Smith v. Smith, 541 S.W.3d 251, 263 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citation to “Chapter 38.001” of the Texas Civil Practices and Remedies Code without analysis is insufficient). 2 litigants would provide such parties with an unfair advantage over parties who are represented by counsel.

2019See Marcopoulos v. State, 548 S.W.3d 697, 707 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d).

2015App. 2011). 6 demeanor, the appellate court should afford almost total deference to the trial court’s fact findings.”36 Third, Justice Dauphinot ignores binding precedent of the Court of Criminal Appeals when the WCDA is the party.37 While Justice Dauphinot in Roberson recites that this Court requires proof that the prosecution intended to cause a mistrial for jeopardy to bar a second prosecution, she ignores that standard in favor of her own standard: “At some point, appellate courts must hold that the conduct is so egregious that the party cannot avoid its consequences.”38 Instead of applyin

2015App. 2011). 6 demeanor, the appellate court should afford almost total deference to the trial court’s fact findings.”36 Third, Justice Dauphinot ignores binding precedent of the Court of Criminal Appeals when the WCDA is the party.37 While Justice Dauphinot in Roberson recites that this Court requires proof that the prosecution intended to cause a mistrial for jeopardy to bar a second prosecution, she ignores that standard in favor of her own standard: “At some point, appellate courts must hold that the conduct is so egregious that the party cannot avoid its consequences.”38 Instead of applyin

2015In addition to ignoring the credibility determination of the trial judge and failing to apply binding precedent, Justice Dauphinot’s dissent also contains unsupported speculations and assumptions which clearly flow from her antagonism toward the WCDA.37 In rejecting Investigator Cavinder’s sworn testimony, impugning him as a liar, and rejecting the trial judge’s determination that Investigator Cavinder testified honestly, Justice Dauphinot seeks a motivation for Investigator Cavinder’s actions other than an “honest mistake.” 38 Thus, Justice Dapuhinot advances a theory that Investigator Cavind

2015In addition to ignoring the credibility determination of the trial judge and failing to apply binding precedent, Justice Dauphinot’s dissent also contains unsupported speculations and assumptions which clearly flow from her antagonism toward the WCDA.37 In rejecting Investigator Cavinder’s sworn testimony, impugning him as a liar, and rejecting the trial judge’s determination that Investigator Cavinder testified honestly, Justice Dauphinot seeks a motivation for Investigator Cavinder’s actions other than an “honest mistake.” 38 Thus, Justice Dapuhinot advances a theory that Investigator Cavind

2013See Wheeler, 67 S.W.3d at 888 .

2013See Wheeler, 67 S.W.3d at 888 .

2010See, e.g. , Newsom , 171 S.W.3d at 279 ; Wheeler v. Methodist Hosp. , 95 S.W.3d 628, 646 (Tex. App.--Houston [1st Dist.] 2002, no pet.) ("Because Wheeler's brief does little more than summarily state his point of error, without citations to legal authority or substantive analysis, it is not sufficient to acquaint the Court with the issue and does not present an argument that would allow the court to decide the issue.

2010See, e.g. , Newsom , 171 S.W.3d at 279 ; Wheeler v. Methodist Hosp. , 95 S.W.3d 628, 646 (Tex. App.--Houston [1st Dist.] 2002, no pet.) ("Because Wheeler's brief does little more than summarily state his point of error, without citations to legal authority or substantive analysis, it is not sufficient to acquaint the Court with the issue and does not present an argument that would allow the court to decide the issue.