Garza motion in Texas

2015The Texas Court of Criminal Appeals granted Garza’s petition for discretionary review and rendered an opinion, holding “Garza’s claim was not forfeited by his failure to urge his claim in the trial court.” Garza, 435 S.W.3d at 263 .

2015However, the court of criminal appeals reversed our decision, holding “Garza’s claim was not forfeited by his failure to urge his claim in the trial court.” Garza, 435 S.W.3d at 263 .

2008Motion to Suppress In his second issue on appeal, Garza argues that the trial court abused its discretion in denying his motion to suppress because the police did not have reasonable suspicion to justify his detention, and therefore all evidence seized after the traffic stop was inadmissible as the fruit of an unconstitutional seizure. (2) See Hernandez v. State , 963 S.W.2d 921, 924 (Tex. App.--San Antonio 1998, pet. ref'd) ("[E]vidence obtained as the fruit of an unconstitutional seizure is inadmissible.").

2008Motion to Suppress In his second issue on appeal, Garza argues that the trial court abused its discretion in denying his motion to suppress because the police did not have reasonable suspicion to justify his detention, and therefore all evidence seized after the traffic stop was inadmissible as the fruit of an unconstitutional seizure. 2 See Hernandez v. State, 963 S.W.2d 921, 924 (Tex.App.-San Antonio 1998, pet. ref'd) (“[E]vi-dence obtained as the fruit of an unconstitutional seizure is inadmissible.”).

2012See Bynum, 772 S.W.2d at 116 ; see also In re Daisy, 156 S.W.3d 922 , (Tex. App.—Dallas 2005, orig. proceeding) (relator entitled to credit for pre-sentence jail-time spent in another jurisdiction).3 Accordingly, we conditionally grant Garza’s petition for writ of mandamus and direct the district court to vacate its order denying Garza’s motion for judgment nunc pro tunc and to enter a judgment nunc pro tunc awarding Garza credit for the amount of time he served while on detainer prior to sentencing.

2012See Bynum , 772 S.W.2d at 116 ; see also In re Daisy , 156 S.W.3d 922 , (Tex. App.--Dallas 2005, orig. proceeding) (relator entitled to credit for pre-sentence jail-time spent in another jurisdiction). (3) Accordingly, we conditionally grant Garza's petition for writ of mandamus and direct the district court to vacate its order denying Garza's motion for judgment nunc pro tunc and to enter a judgment nunc pro tunc awarding Garza credit for the amount of time he served while on detainer prior to sentencing.

2012See Bynum, 772 S.W.2d at 116 ; see also In re Daisy, 156 S.W.3d 922 , (Tex. App.—Dallas 2005, orig. proceeding) (relator entitled to credit for pre-sentence jail-time spent in another jurisdiction).3 Accordingly, we conditionally grant Garza’s petition for writ of mandamus and direct the district court to vacate its order denying Garza’s motion for judgment nunc pro tunc and to enter a judgment nunc pro tunc awarding Garza credit for the amount of time he served while on detainer prior to sentencing.

2012See Bynum , 772 S.W.2d at 116 ; see also In re Daisy , 156 S.W.3d 922 , (Tex. App.--Dallas 2005, orig. proceeding) (relator entitled to credit for pre-sentence jail-time spent in another jurisdiction). (3) Accordingly, we conditionally grant Garza's petition for writ of mandamus and direct the district court to vacate its order denying Garza's motion for judgment nunc pro tunc and to enter a judgment nunc pro tunc awarding Garza credit for the amount of time he served while on detainer prior to sentencing.

2010See id .; Cooper Tire & Rubber Co. v. Mendez , 155 S.W.3d 382, 415 (Tex. App.—El Paso 2004) (applying Garza standard and not chapter 160 to determination of whether the child was decedent’s biological daughter and therefore a beneficiary under the wrongful-death statute), rev’d on other grounds , 204 S.W.3d 797 (Tex. 2006).

2010See id.; Cooper Tire & Rubber Co. v. Mendez, 155 S.W.3d 382, 415 (Tex.App.-El Paso 2004) (applying Garza standard and not chapter 160 to determination of whether the child was decedent’s biological daughter and therefore a beneficiary *704 under the wrongful-death statute), rev’d on other grounds, 204 S.W.3d 797 (Tex.2006).

2010See Ellis , 976 S.W.2d at 791 .

2010See Ellis, 976 S.W.2d at 791 .

2001Moreover, Southwestern Bell does not now claim that it was surprised that the term "disqualification" referred to a type of discrimination. (12) A pleading must provide "a short statement of the cause of action sufficient to give fair notice of the claim involved." Roark v. Allen , 633 S.W.2d 804, 810 (Tex. 1982); Torch Operating Co. v. Bartell , 865 S.W.2d 552, 554 (Tex. App.--Corpus Christi 1993, writ denied); see also Tex. R.

2001Moreover, Southwestern Bell does not now claim that it was surprised that the term “disqualification” referred to a type of discrimination. 12 A pleading must provide “a short statement of the cause of action sufficient to give fair notice of the claim involved.” Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982); Torch Operating Co. v. Bartell, 865 S.W.2d 552, 554 (Tex.App.-Corpus *226 Christi 1993, writ denied); see also Tex.R.

2001Moreover, Southwestern Bell does not now claim that it was surprised that the term "disqualification" referred to a type of discrimination. (12) A pleading must provide "a short statement of the cause of action sufficient to give fair notice of the claim involved." Roark v. Allen , 633 S.W.2d 804, 810 (Tex. 1982); Torch Operating Co. v. Bartell , 865 S.W.2d 552, 554 (Tex. App.--Corpus Christi 1993, writ denied); see also Tex. R.

2001Moreover, Southwestern Bell does not now claim that it was surprised that the term “disqualification” referred to a type of discrimination. 12 A pleading must provide “a short statement of the cause of action sufficient to give fair notice of the claim involved.” Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982); Torch Operating Co. v. Bartell, 865 S.W.2d 552, 554 (Tex.App.-Corpus *226 Christi 1993, writ denied); see also Tex.R.

1999See Flowers v. State, 935 S.W.2d 131, 133 (Tex.Crim.App.1996).

1999See Flowers v. State , 935 S.W.2d 131, 133 (Tex. Crim.

2014The court of appeals affirmed the trial court’s judgment without addressing the merits of Garza’s claim because it found that the issue had not been preserved for review.3 1 Appellant’s Br. 4. 2 132 S.Ct. 2455 (2012) (holding that the mandatory imposition of a life-without- parole sentence upon a juvenile is unconstitutional). 3 Garza v. State, No. 04–11–00891–CR, 2012 WL 5236048 , at *1 (Tex. App.—San Antonio Oct. 24, 2012) (mem. op, not designated for publication).

2014See id. *551 The Law In Miller , the Supreme Court was asked to determine whether statutes that mandate the imposition of life without parole violate the Eighth Amendment when such punishment is imposed upon those who are under the age of eighteen at the time of the offense. 132 S.Ct. at 2460 .

2026After reviewing the entire record, we conclude that under these unique circumstances, the trial court reasonably could have found that Meza’s failure to turn over the deed for more than ten years after he received the full purchase price, his subsequent exclusion of Garza from the land, and his attempt to sell the property constituted continuing breaches that “cause[d] the accrual of the cause of action to occur each day that there was a breach.” See Dvorken v. Lone Star Indus., Inc., 740 S.W.2d 565, 567 (Tex. App.—Fort Worth 1987, no writ) (considering a “continuing” breach).

2025See Cabrera v. State, 513 S.W.3d 35, 38 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (“In applying our state constitutional 5It is unclear from Garza’s brief whether he is asserting that he was denied due process of law, that he did not plead guilty voluntarily, or a different error by the trial court.

2024See Canton-Carter, 271 S.W.3d at 931 ; TEX.

2020The evidence GCM attached to its response to Garza’s motion for new trial also supports Garza’s claim of lack of notice, because it shows that both the motion for summary judgment and the trial court’s hearing notice were returned to their respective senders undelivered and stamped “Return to Sender, Not Deliverable as Addressed, Unable to Forward.” Finally, even though the notices were properly addressed, Garza’s proof of nonreceipt removed any presumption that he received them. -7- 04-19-00564-CV See In re E.A., 287 S.W.3d 1, 5 (Tex. 2009).

2020The evidence GCM attached to its response to Garza’s motion for new trial also supports Garza’s claim of lack of notice, because it shows that both the motion for summary judgment and the trial court’s hearing notice were returned to their respective senders undelivered and stamped “Return to Sender, Not Deliverable as Addressed, Unable to Forward.” Finally, even though the notices were properly addressed, Garza’s proof of nonreceipt removed any presumption that he received them. -7- 04-19-00564-CV See In re E.A., 287 S.W.3d 1, 5 (Tex. 2009).

2020If anything, the operations manager’s statement demonstrates Mo-Vac’s awareness that a crash was only possible, not that Mo-Vac believed a crash was substantially certain.62 Indeed, the record reflects that other Mo-Vac drivers had worked significantly longer hours than Escobedo without incident, meaning Mo-Vac had no indication that Escobedo’s crash was substantially certain to no brake fluid, which must fail at a certain point in time like the bald tires in Rodriguez, the risks attendant to working long hours are constant every day on every route, indefinitely. 60 Reed Tool Co. v. Copelin, 6

2020If anything, the operations manager’s statement demonstrates Mo-Vac’s awareness that a crash was only possible, not that Mo-Vac believed a crash was substantially certain.62 Indeed, the record reflects that other Mo-Vac drivers had worked significantly longer hours than Escobedo without incident, meaning Mo-Vac had no indication that Escobedo’s crash was substantially certain to no brake fluid, which must fail at a certain point in time like the bald tires in Rodriguez, the risks attendant to working long hours are constant every day on every route, indefinitely. 60 Reed Tool Co. v. Copelin, 6

2019See Willis, 760 S.W.2d at 645 & n.2 (holding that a fiduciary owes a duty of full and fair disclosure).

2019Franklin v. State, 579 S.W.3d 382, 385 (Tex. Crim.

2019Franklin v. State, 579 S.W.3d 382, 385 (Tex. Crim.

2016Id.; see also Hinojosa v. State, 433 S.W.3d 742, 761 (Tex. App.—San Antonio 2014, pet. ref’d).

2016See Sample v. State, 405 S.W.3d 295 , 300–01 (Tex. App.—Fort Worth 2013, pet. ref’d) (defendant did not preserve error where he “did not file a pretrial motion to suppress,” “he did not object before or during the [S]tate’s case-in-chief,” and “nothing in the record” indicated Garza exception applied); Mitchell v. State, Nos. 14-08-00557-CR, 14-08-00558-CR, 2009 WL 2568330 , at *2 (Tex. App.—Houston [14th Dist.] Aug. 20, 2009, no pet.) (mem. op., not designated for publication) (defendant waived complaint “by not objecting or urging his motion to suppress when the State offered the . . . testi

2015See Archie, 340 S.W.3d at 738 .

2015See Hall v. State, 62 S.W.3d 918 , 919–20 (Tex. App.—Dallas 2001, pet. ref’d).

2015See Lester v. Capital Indus., Inc., 153 S.W.3d 93, 96 (Tex. App.—San Antonio 2004, no pet.); see also Bishop v. Clawson, No. 14-12-00830-CV, 2013 WL 5026817 , at *7 (Tex. App.—Houston [14th Dist.] Sept. 12, 2013, no pet.) (mem. op.).

2014See McGinn v. State, 961 S.W.2d 161, 163 (Tex. Crim. -5- 04-14-00507-CR App. 1998); Cooks v. State, 844 S.W.2d 697, 730 (Tex. Crim.

2014There was, at the very least, a question of whether the trial court implicitly ruled on Garza’s objection ...................................... 12 Certificate of Service ................................................................................ 20 Certificate of Compliance ......................................................................... 20 Appendix ................................................................................................... 21 3 Index of Authorities Cases Davis v. State, 104 S.W.3d 177, 180 (Tex. App.—Waco 2003, no pet.) .. 19 DeRusse v. State, 579 S.W.2d