`
`ACCEPTED
`13-24-00042-CV
`THIRTEENTH COURT OF APPEALS
`CORPUS CHRISTI, TEXAS
`3/8/2024 5:06 PM
`Kathy S. Mills
`CLERK
`
`No. 13-24-00042-CV
`
`In the Thirteenth Court of Appeals
`Corpus Christi-Edinburg, Texas
`
`
`IN RE SPACE EXPLORATION TECHNOLOGIES CORP.
`AND LAUREN KREUGER
`
`
`ORIGINAL PROCEEDING FROM CAUSE NO. 2020-DCL-03939
`444TH DISTRICT COURT OF CAMERON COUNTY, TEXAS
`HON. DAVID A. SANCHEZ, PRESIDING
`
`REAL PARTIES IN INTEREST JOSE RUIZ’S AND HUMBERTO
`GARCIA’S AMENDED REPLY IN SUPPORT OF MOTION TO ABATE
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`
`
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`TO THE HONORABLE THIRTEENTH COURT OF APPEALS:
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`Real Parties in Interest Jose Ruiz and Humberto Garcia (“Real Parties”) file
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`this Reply in support of their motion to abate and respectfully show in support:
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`Contrary to Relators’ argument, Real Parties did not “concede” that
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`mandamus is appropriate. In fact, Real Parties have several arguments against the
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`issuance of the mandamus, including that the trial court stated a valid basis for the
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`new trial, as stated in their motion to abate. Relators suggest this Court should move
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`past the lack of specificity in the trial court’s order and simply grant mandamus on
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`the merits. But a glaring reason to deny the mandamus petition is that Relators have
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`provided an inadequate record.
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`1
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` FILED IN
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` 13th COURT OF APPEALS
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`CORPUS CHRISTI/EDINBURG, TEXAS
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` 3/8/2024 5:06:45 PM
`
` KATHY S. MILLS
`
` Clerk
`
`
`
`
`
`Under similar circumstances, the Texas Supreme Court has denied mandamus
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`relief. In re United Scaffolding, Inc., 377 S.W.3d 685, 690 (Tex. 2012). In United
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`Scaffolding, the Texas Supreme Court held the trial court insufficiently articulated
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`its reasoning and granted mandamus to require a corrected new trial order, but the
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`Court refused to require rendition on the jury’s verdict because United Scaffolding
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`failed to present a complete record of the trial:
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`First, as we have discussed, the actual basis for the trial court's order is
`unclear; if it rests on the greater-weight rationale, then our writ would
`compel the trial court to elaborate on that reasoning. The trial court's
`failure to properly state why it granted a new trial does not mandate a
`conclusion that it did not have a valid reason for doing so. And absent
`the trial court's having particularized its reason—or reasons—United
`would be entitled to mandamus directing the trial court to render
`judgment on the verdict only if it showed no valid basis exists for the
`new-trial order. It has not done so here—the record United has
`presented is only a partial one containing Levine's motion for new trial
`and the exhibits to that motion, such as deposition transcripts, and the
`transcript of the hearing on the motion for new trial.
`
`Id. at 690 (citing TEX. R. APP. P. 52.7).
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`Under, Texas Rule of Appellate Procedure 52.7, “Relator must file with the
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`petition . . . (2) a properly authenticated transcript of any relevant testimony from
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`any underlying proceeding, including any exhibits offered in evidence, or a
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`statement that no testimony was adduced in connection with the matter complained.”
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`TEX. R. APP. P. 52.7(a)(2) (emphasis added). Generally, “[w]ithout a complete
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`picture of what facts were before the trial court and how the court applied the law to
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`those facts in reaching its decision, this Court does not have a basis on which to
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`2
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`
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`conclude that the trial court abused its discretion.” In re Approximately $61,083.00,
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`No. 14-13-01059-CV, 2014 WL 866040, at *3 (Tex. App.—Houston [14th Dist.]
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`Mar. 4, 2014, orig. proceeding) (mem. op.).
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`In reviewing improper jury argument, “[a]ll of the evidence must be closely
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`examined to determine [] the argument’s probable effect on a material finding.”
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`Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 840 (Tex. 1979). Courts conduct
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`“an evaluation of the whole case, which begins with the voir dire and ends with the
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`closing argument.” Id. Where review of a ground in a new trial order requires
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`consideration of the entire trial, the Court simply cannot evaluate the merits of that
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`new trial ground without the complete trial transcript, including the exhibits. See In
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`re Tex. Fueling Servs., Inc., No. 13-18-00311-CV, 2018 WL 3386356, at *3 (Tex.
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`App.—Corpus Christi–Edinburg July 12, 2018, orig. proceeding) (mem. op.)
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`(holding record was inadequate to review new trial order based on juror misconduct
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`in voir dire where record did not include complete trial transcript and exhibits); In
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`re Athans, 458 S.W.3d 675, 679 (Tex. App.—Houston [14th Dist.] 2015, orig.
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`proceeding) (holding record was inadequate to review new trial order on factual
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`sufficiency grounds where relators filed a transcript of the trial but excluded the
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`exhibits offered into evidence); In re Wyatt Field Serv. Co., No. 14-13-00811-CV,
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`2013 WL 6506749, at *3 (Tex. App.—Houston [14th Dist.] Dec. 10, 2013, no pet.)
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`(mem. op.).
`
`3
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`
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`What appear to be Defendants’ trial exhibits are included in the record, but
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`they are not part of an exhibit index certified by the court reporter, nor are they
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`signed and dated by the court reporter. See Mandamus Record at 1778-2035. More
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`importantly, Relators have not provided this Court with Real Parties’ exhibits,
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`although the trial transcript clearly refers to Real Parties’ exhibits offered and
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`admitted at trial. See, e.g., id. at 533-34, 591, 597, 600, 633, 645. Thus, this Court
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`does not even have the tools it needs to decide this case. The mandamus petition
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`could and should be denied outright for that reason, and certainly, the record is
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`insufficient to order the trial court to vacate its new trial order and render judgment
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`on the jury verdict. In re United Scaffolding, Inc., 377 S.W.3d at 690.
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`Accordingly, Real Parties do not and have not conceded that mandamus is
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`proper. If the Court is not inclined to abate at this juncture, it should not grant the
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`mandamus petition, but should deny it for lack of a proper mandamus record. The
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`fact is that once Relators obtain the official exhibit volume, they could refile their
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`petition. An abatement is a clearly a more efficient remedy than dismissal to allow
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`the trial court to issue an amended order, especially since Relators would benefit
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`from the abatement as well. The Court could abate to allow the trial court to issue a
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`new order and allow Relators to supplement their record with the Official Court
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`Reporter’s Exhibit Volume at the same time.
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`4
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`
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`Moreover, Relators’ hyper-technical reading of the appellate rules ignores that
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`(1) under Rule 2, the Court can suspend the rules to “expedite a decision” and “order
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`a different procedure,” TEX. R. APP. P. 2; and (2) under Rule 52.10(b), the Court can
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`issue “any just relief pending the court’s action on the petition” for mandamus. TEX.
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`R. APP. P. 52.10(b). Just as in an appeal, it is preferable to abate to allow a trial judge
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`to amend an order than to grant the extraordinary writ of mandamus against that trial
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`judge. In the interest of efficiency and judicial economy, this Court should either
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`deny the petition outright or abate this proceeding for 30 days to allow the trial court
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`time to craft a revised order, and then proceed as directed in Texas Rule of Appellate
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`Procedure 44.4. See Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.—Houston
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`[14th Dist.] 2008, no pet.) (holding abatement was a more efficient remedy).
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`5
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`Respectfully submitted,
`
`
`
`/s/ Brandy Wingate Voss
`Brandy Wingate Voss
`State Bar No. 24037046
`LAW OFFICES OF BRANDY WINGATE VOSS
`208 W. Cano St.
`Edinburg, Texas 78539
`(956) 688-9033
`(956) 331-2230 (fax)
`brandy@brandyvosslaw.com
`
`Sonia Rodriguez
`State Bar Number 24008466
`Cowen Rodriguez Peacock, PC
`6243 IH-10 West, Suite 801
`San Antonio, Texas 78201
`Telephone: (210) 941-1301
`E-mail: efilings@cowenlaw.com
`Counsel for Real Party in Interest
`
`
`
`
`
`6
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`On March 8, 2024, in compliance with Texas Rule of Appellate Procedure
`
`9.5, I served a copy of this Motion by e-service, e-mail, facsimile, or mail to:
`
`William R. Peterson
`william.peterson@morganlewis.com
`Michelle D. Pector
`michelle.pector@morganlewis.com
`Jared Wilkerson
`jared.wilkerson@morganlewis.com
`MORGAN, LEWIS & BOCKIUS
`LLP
`1000 Louisiana, Suite 4000
`Houston, Texas 77002
`
`David Oliveira
`doliveira@rofllp.com
`ROERIG, OLIVEIRA & FISHER
`LLP
`10225 N. 10th Street
`McAllen, TX 78504
`
`Counsel for Relator Space
`Exploration
`Technologies Corp.
`
`
`
`
`
`
`
`D. Alan Erwin
`aerwin@rofllp.com
`ROERIG, OLIVEIRA & FISHER
`LLP
`10225 N. 10th Street
`McAllen, TX 78504
`
`Counsel for Relator Lauren
`Elizabeth Krueger
`
`Sarah Durham
`sarah@blizzardlawfirm.com
`Blizzard & Zimmerman Attorneys
`1174 North 3rd Street
`Abilene, Texas 79601
`
`Michael H. Garatoni
`e-service@daspitlaw.com
`The Daspit Law Firm
`9601 McAllister Freeway, Suite 916
`San Antonio, Texas 78216
`
`Counsel for Hector Garcia, Jr.
`
`
`/s/ Brandy Wingate Voss
`Brandy Wingate Voss
`
`7
`
`
`
`Automated Certificate of eService
`This automated certificate of service was created by the efiling system.
`The filer served this document via email generated by the efiling system
`on the date and to the persons listed below. The rules governing
`certificates of service have not changed. Filers must still provide a
`certificate of service that complies with all applicable rules.
`Brandy Wingate Voss on behalf of Brandy Wingate Voss
`Bar No. 24037046
`brandy@brandyvosslaw.com
`Envelope ID: 85381569
`Filing Code Description: Other Brief
`Filing Description: Other Brief
`Status as of 3/11/2024 7:32 AM CST
`
`Associated Case Party: Jose Ruiz
`
`BarNumber
`
`795306
`
`Name
`Brandy Wingate Voss
`Michael Raphael Cowen
`Melissa Thrailkill
`Shana Elick
`Julie Balovich
`
`brandy@brandyvosslaw.com
`efilings@cowenlaw.com
`melissa@brandyvosslaw.com
`shana@brandyvosslaw.com
`julie@brandyvosslaw.com
`
`TimestampSubmitted
`3/8/2024 5:06:45 PM
`3/8/2024 5:06:45 PM
`3/8/2024 5:06:45 PM
`3/8/2024 5:06:45 PM
`3/8/2024 5:06:45 PM
`
`Status
`SENT
`SENT
`SENT
`SENT
`SENT
`
`Associated Case Party: Space Exploration Technologies Corp.
`
`BarNumber
`15254675
`
`doliveira@rofllp.com
`william.peterson@morganlewis.com
`michelle.pector@morganlewis.com
`jared.wilkerson@morganlewis.com
`
`TimestampSubmitted
`3/8/2024 5:06:45 PM
`3/8/2024 5:06:45 PM
`3/8/2024 5:06:45 PM
`3/8/2024 5:06:45 PM
`
`Status
`SENT
`SENT
`SENT
`SENT
`
`Name
`David G. Oliveira
`William R.Peterson
`Michelle Pector
`Jared Wilkerson
`
`Case Contacts
`
`Name
`Norma Orozco
`
`BarNumber Email
`norma.orozco@morganlewis.com
`
`TimestampSubmitted
`3/8/2024 5:06:45 PM
`
`Status
`SENT
`
`Associated Case Party: LaurenElizabethKrueger
`
`Name
`Dan Alan Erwin
`
`BarNumber
`6653020
`
`aerwin@rofllp.com
`
`TimestampSubmitted
`3/8/2024 5:06:45 PM
`
`Status
`SENT
`
`Associated Case Party: Hector Garcia Jr.
`
`
`
`Automated Certificate of eService
`This automated certificate of service was created by the efiling system.
`The filer served this document via email generated by the efiling system
`on the date and to the persons listed below. The rules governing
`certificates of service have not changed. Filers must still provide a
`certificate of service that complies with all applicable rules.
`Brandy Wingate Voss on behalf of Brandy Wingate Voss
`Bar No. 24037046
`brandy@brandyvosslaw.com
`Envelope ID: 85381569
`Filing Code Description: Other Brief
`Filing Description: Other Brief
`Status as of 3/11/2024 7:32 AM CST
`
`Associated Case Party: Hector Garcia Jr.
`
`Name
`Michael Garatoni
`
`BarNumber Email
`e-service@daspitlaw.com
`
`TimestampSubmitted
`3/8/2024 5:06:45 PM
`
`Status
`SENT
`
`Associated Case Party: Humberto Garcia
`
`Name
`Yazmin Campbell
`Terry Reeves
`Sarah Durham
`Morgan Walker
`
`BarNumber Email
`yazmin@blizzardlawfirm.com
`terry.reeves@blizzardlawfirm.com
`sarah@blizzardlawfirm.com
`Morgan@blizzardlawfirm.com
`
`TimestampSubmitted
`3/8/2024 5:06:45 PM
`3/8/2024 5:06:45 PM
`3/8/2024 5:06:45 PM
`3/8/2024 5:06:45 PM
`
`Status
`SENT
`SENT
`SENT
`SENT
`
`
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