Second Court of Appeals | Case Summaries

Smith v. State, No. 02-0004-532 (Feb. 16, 2006) (Cayce, C.J., joined by Livingston and Dauphinot, JJ.).: Held: (1) The evidence is legally and factually sufficient to support Appellant’s conviction of capital murder as a party under either section 7.02(a)(2) or section 7.02(b) of the penal code. (2) The trial court did not violate the hearsay rule or the Confrontation Clause by admitting Appellant’s co-defendants’ incriminating statements. The statements were against the declarants’ interest, were sufficiently corroborated, and were nontestimonial. (3) The trial court did not err by refusing to charge the jury on felony murder because there is no evidence that Appellant did not intend the victim’s death at the time the murder was committed.
Estate of Aubrey Wright Hawkins, Deceased, No. 02-0004-345 (Feb. 16, 2006) (Livingston, J., joined by Holman and Gardner, JJ.).: Held: In this action for partition and distribution of Hawkins’s intestate estate, the trial court did not abuse its discretion by ordering Appellant, the estate administrator, to pay Appellee’s attorney’s fees under probate code section 245, which authorizes the award of attorney’s fees when an estate representative neglects to perform a required duty, because Appellee alleged and proved that Appellant failed to deliver estate property in accordance with a previous order of the probate court.
Southern County Mutual Insurance v. Surety Bank N.A., No. 02-0005-121 (Feb. 16, 2006) (McCoy, J., joined by Cayce, C.J., and Holman, J.).: Held: Premium finance lender seeking to recover unearned premiums after cancellation of an insurance policy stands in the shoes of the insured and may assert only those rights under the policy that the insured itself could assert. Summary judgment for lender was improper because the record did not contain the policy or any other proof establishing the terms of the policy relating to the return of unearned premiums to the insured upon cancellation, so the lender did not conclusively establish that the insurer failed to make the proper refund.
Rosalez v. State, No. 02-0004-363 (Feb. 16, 2006) (Gardner, J., joined by Cayce, C.J., and Walker, J.).: Held: Appellant knowingly, voluntarily, and intelligently waived his Sixth Amendment right to confront and cross-examine witnesses at the sentencing hearing when he signed written plea admonishments expressly stating that he waived his right to confront and cross-examine witnesses at both the guilt and punishment phases of the trial.
Volosen v. State, No. 02-0004-390 (Feb. 16, 2006) (Walker, J., joined by Dauphinot and McCoy, JJ.).: Held: The evidence is legally insufficient to establish that Appellant killed his neighbor’s dog “without legal authority” as required to sustain a conviction for animal cruelty under section 42.09(a)(5) of the Texas Penal Code. Appellant had legal authority to kill the dog under section 822.013 of the Texas Health and Safety Code because it either was attacking or had recently attacked Appellant’s fowl.

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of February 13, 2006