Appellate Record
Gerald
Bourqe is a Houston Attorney with a successful
appellate track record. Below are some
of his recent cases:
Benge v. State, 94 S.W.3d 31
Court of Appeals of Texas, Houston (14th Dist.).
July 18, 2002. Discretionary Review Refused Feb. 5, 2003.
Defendant
charged with aggravated assault with motor vehicle
was convicted in the 178th Judicial District Court, Harris
County, W. Harmon, J., of lesser included offense of
deadly
conduct. Defendant appealed. The Court of Appeals, Charles
W. Seymore, Jr., held that (1) defendant did not waive
challenge to trial court’s failure to give reckless
driving instruction as lesser included offense to aggravated
assault with motor vehicle; (2) reckless driving constituted
lesser included offense of aggravated assault with motor
vehicle; and (3) error in failing to give reckless driving
instruction was not harmless.
Case
Reversed and Remanded.
Dancy v. Daggett, 815 S.W.2d 548
Supreme Court of Texas
Husband
moved for leave to file petition for writ of mandamus
asking that Court of Appeals void temporary orders entered
in divorce suit by the Harris County District Court, Allen
J. Daggett, J., and that it order trial court to conduct
another hearing due to trial court’s refusal to continue
hearing the temporary orders despite absence of husband’s
counsel. The Houston Court of Appeals, Fourteenth Judicial
District, denied motion, 809 S.W.2d 629. The Supreme Court
held that: (1) trial judge abused his discretion by refusing
to continue proceedings until such time as husband’s
counsel was available, and (2) mandamus was appropriate
remedy.
Writ conditionally issued.*
*
(This case reversed the Court of Appeals’ earlier
decision. That opinion’s notes are set out below.)
Dancy v. Daggett, 809 S.W.2d 629
Court of Appeals of Texas, Houston (14th Dist.).
Husband
moved for leave to file petition for writ of mandamus
asking that Court of Appeals void temporary orders entered
into divorce suit and to order trial court to conduct another
hearing due to trial court’s refusal to continue
hearing for temporary orders despite absence of husband’s
counsel. The Court of Appeals held that it did not have
discretion to find that trial judge abused its discretion,
despite Court’s strong disapproval of trial court’s
actions.
Motion denied.
Spacek v. Charles, 928 S.W.2d 88
Court of Appeals of Texas, Houston (14th Dist.).
May 23, 1996. Rehearing Overruled July 18, 1996.
Student
sued high school athletic coaches,
asserting federal and state claims related to coaches’ alleged
excessive use of force against him. Coaches moved for summary
judgment. The 12th District Court, Walker County, William
McAdams, J., denied motion, and coaches appealed. The Court
of Appeals, Yates, J., held that: (1) coaches' failure
to address in his motion student’s Fourteenth Amendment
equal protection claim and Fifth Amendment substantive
due process claim prevented Court of Appeals from considering
the coaches' claim of qualified immunity with respect
to those claims on appeal, and (2) disputed issue of material
fact precluded summary judgment on ground of qualified
immunity with respect to student’s state law allegations
of excessive use of force in discipline.
Affirmed as modified.
C.M. v. Tomball Regional Hospital, 961 S.W.2d 236
Court of Appeals of Texas, Houston (1st Dist.).
April 17, 1997. Rehearing Overruled June 10, 1997.
Mother
of a 15 year old rape victim brought action on victim’s
behalf against hospital where she had initially gone
for care following rape and also against hospital
nurse and medical director. Defendants moved for summary
judgment, and the 270th District Court, Harris County,
Richard Hall, J., granted motion, and plaintiff appealed.
The Court of Appeals, Mirabal, J., held that (1) fact issues
precluded summary judgment on claims that hospital had
violated Emergency Medical Treatment and Active Labor Act
(EMTALA) by refusing to treat victim; but (2) hospital
had not violated protected privacy right of patient, as
would give rise to Section 1983 action; and (3) conduct
of nurse, who had performed initial screening, did not
support claim for intentional infliction of emotional distress.
Affirmed in part, reversed in part, and remanded.
Ex Parte Cruz, 739 S.W.2d 53
Court of Criminal Appeals of Texas, En Banc.
Defendant
was convicted in District Court, Harris County, I.D.
McMaster, J., of involuntary manslaughter and sentenced
to five years’ confinement. The Court of Appeals
affirmed. Defendant filed habeas corpus application on
grounds that he was deprived of effective assistance of
counsel at trial. The Court of Criminal Appeals, McCormick,
J., held that: (1) defendant was eligible for probation;
(2) defense counsel’s misunderstanding of law was
harmless; and (3) defendant failed to show ineffectiveness
of counsel’s representation.
Application denied.
Levesque v. Wilkens, 57 S.W.3d 499
Court of Appeals of Texas, Houston (14th Dist.) .
Motorists
brought action against landowner for negligence after
sustaining injuries when their car struck an escaped
bull, owned by landowner’s tenant farmer, that had
wandered onto the highway. Landowners moved for summary
judgment. The 56th District Court, Galveston County, Norma
Venso, J., granted the motion. Motorists appealed. The
Court of Appeals, Anderson, J., held that landowners owed
no duty to motorists.
Affirmed.
Ex Parte McCullough, 746 S.W.2d 29
Court of Appeals of Texas, Houston (1st Dist.).
Feb. 11, 1988. Discretionary Review Refused May 4, 1988.
Driver brought pretrial habeas corpus proceeding contending
that his pending prosecution for driving while intoxicated
was barred by double jeopardy because he was previously
convicted for failing to stop and render aid. The Criminal
Court, Harris County, J.R. Musslewhite, J., denied relief,
and driver appealed. The Court of Appeals, Warren, J.,
held that although in prosecution of offense of failing
to stop and render aid driver was shown to be intoxicated
when he left scene of accident, state was not precluded
from subsequently trying defendant for driving while intoxicated.
Affirmed.
Champion v. State, 919 S.W.2d 816
Court of Appeals of Texas, Houston (14th Dist.).
March 21, 1996. Discretionary Review Refused June 26, 1996.
Defendant was convicted in the 178th District Court, Harris
County, W. Hatten, J., of felony possession of cocaine
in amount of less than 28 grams, and he appealed. The Court
of Appeals, Amidei, J., held that typographical error in
search and arrest warrant, resulting in nonexistent street
address for place to be searched did not make warrant invalid.
