Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of January 2, 2006

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions can be accessed by clicking the cause number then clicking View HTML Version of Opinion.

Needum v. State, Nos. 02-04-00430-CR, 02-04-00431-CR, 02-04-00433-CR (Jan. 5, 2006) (Cayce, C. J.; Livingston, J., concurs without opinion; Dauphinot, J., dissents with opinion).: Held: The trial court did not abuse its discretion or violate Appellant’s constitutional right to effective assistance of counsel by refusing to allow defense counsel to ask venire members whether they believed intoxication could be a mitigating factor in a crime. Whether a venire member considers evidence of intoxication to be mitigating is not a proper area of inquiry during voir dire.; Dissent: The trial court abused its discretion by preventing Appellant from inquiring about the venire’s bias against the law upon which Appellant was entitled to rely, that is, the possibility that temporary insanity caused by voluntary intoxication could be a mitigating factor at punishment.
Pair v. State, No. 02-0004-494 (Jan. 5, 2006) (Walker, J., joined by McCoy, J.; Dauphinot, J., dissents with opinion).: Held: The evidence Appellant sought to suppress was not obtained in violation of article 38.23(a). The evidence was obtained pursuant to a valid search warrant—which was supported by an affidavit based on credible information, indicated activity of a protracted and continuous nature, and was not required to provide the names of the officers supplying the information—after officers having probable cause entered the house to prevent the destruction of contraband.; Dissent: The trial court erred by failing to suppress the improperly seized evidence, the search and arrest warrant was invalid, and the warrant failed to attenuate the taint of the illegal search and seizure.
Funk v. State, No. 02-0004-568, 02-04-00569-CR (Jan. 5, 2006) (Cayce, C.J., joined by Gardner and Walker, JJ.).: Held: Case abated and remanded to allow Appellant to file out-of-time motion for new trial. A defendant is entitled to counsel during the 30-day period for preparing and filing a motion for new trial. In this case, Appellant rebutted presumption that his retained trial counsel continued to represent him during this period. Trial counsel’s motion to withdraw, filed after the 30-day period had ended, stated that his written agreement with Appellant provided that counsel’s representation ended at final verdict and did not include any appellate work. Also, no motion for new trial was filed, and appellate counsel was not appointed until after deadline for filing new trial motion.