Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of January 16, 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.

Moseley v. Behringer, No. 02-0004-215 (Jan. 19, 2006) (Livingston, J., joined by Gardner and Walker, JJ.).: Held: In medical malpractice case under former article 4590i, section 13.01(e) of the Texas Revised Civil Statutes, in which the claimant fails to file an expert report or voluntarily nonsuit its claims within 180 days, the claimant may not, after expiration of the 180-day period, voluntarily nonsuit its claims after the health care provider has filed a section 13.01(e) motion to dismiss; instead, the trial court must dismiss the claims with prejudice.
Desoto Wildwood Dev., Inc. v. City of Lewisville , No. 02-0004-149 (Jan. 19, 2006) (McCoy, J., joined by Holman and Gardner, JJ.) (op. on reh'g).: Held: The trial court did not err by granting the City’s plea to the jurisdiction regarding DeSoto's claims for the refund and return of impact fees because DeSoto was not an "owner of the property on which an impact fee had been paid" and DeSoto did not establish standing to challenge the impact fees as excessive. The trial court did, however, err by granting the City’s plea to the jurisdiction on DeSoto’s breach of contract and state takings claims without first abating the cause to afford DeSoto a reasonable opportunity to cure its failure to exhaust administrative remedies.
Harris v. State, No. 02-0003-136 (Jan. 19, 2006) (Dauphinot, J., joined by Gardner, J.; Holman, J., dissents without opinion) (op. on State's PDR).: Held: The trial court abused its discretion in denying Appellant’s motion to suppress because the affidavit exclusive of the officer’s statements that were untrue or made with reckless disregard for the truth is inadequate to support a probable cause determination that would justify the warrant.
Shaffer v. State, No. 02-0004-483 (Jan. 19, 2006) (Holman, J., joined by Gardner and McCoy, JJ.) (op. on reh'g).: Held: The evidence was legally and factually sufficient to support Appellant’s conviction for possession of pseudoephedrine with the intent to manufacture methamphetamine under Texas Health and Safety Code section 481.124. The trial court did not abuse its discretion in admitting the cold medicine label as substantive proof that the cold medicine contained pseudoephedrine because the drug label, which clearly listed that the cold medication contained pseudoephedrine, was admissible hearsay under Rule 803(17) as a list generally used and relied upon by the general public. Texas Health and Safety Code section 481.124 is not unconstitutional.