24 Waterway Avenue, Suite 660
The Woodlands, Texas 77380
Phone: (713) 862-7766
Mobile: (713) 822-2143
gerald@geraldebourque.com
morgan@morganbourque.com
"the cornerstone of justice is hard work, experience and persistence. It is not a gift, it must be earned."
Gerald Bourque

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.

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