Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of July 10, 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.

Tijerina v. State, No. 02-0004-391 (July 13, 2006) (op. on reh'g) (Walker, J., joined by Dauphinot and McCoy, JJ.).: Held: The trial court abused its discretion by prohibiting the defense from asking potential jurors during voir dire whether they would automatically disbelieve a convicted felon. The question was a proper commitment question under Lydia v. State, 117 S.W.3d 902, 904 (Tex. App.—Fort Worth 2003, pet. ref'd) (op. on remand). Because Appellant’s substantial rights—specifically, her right to make an intelligent decision about whether to exercise her right to testify in her own behalf—were affected by this error, the trial court’s judgment is reversed and the case is remanded for a new trial.
Sosa v. State, No. 02-0005-181, 02-05-00182-CR (July 13, 2006) (McCoy, J., joined by Walker, J.; Dauphinot, J., concurs with opinion).: Held: The trial court did not abuse its discretion by refusing to have Appellant examined to determine his competence to stand trial before proceeding on the State's petition to adjudicate because there was no evidence that Appellant was incompetent. Therefore, this court need not address whether article 42.12, section 5(b) of the Texas Code of Criminal Procedure bars Appellant’s complaint.; Concurrence: Article 42.12, section 5(b) does not bar our review of the trial court’s denial of a competency examination.
Kirk v. State, No. 02-0005-363 (July 13, 2006) (Holman, J., joined by Dauphinot and Gardner, JJ.).: Held: Trial court's failure to appoint a second, death-qualified attorney to represent Appellant was harmless because the case proceeded and was tried as though the State had waived the death penalty immediately upon filing the capital charges against Appellant, and the State ultimately filed a written notice that it did not intend to seek the death penalty. The trial court did not abuse its discretion admitting Appellant's statement to police, which was taken after counsel had been appointed to represent him, because Appellant reinitiated contact with police and voluntarily waived his right to counsel.