Second Court of Appeals | Case Summaries

Rangel v. State, No. 02-0004-514 (July 25, 2006) (op. on State's second PDF) (Livingston, J., joined by Holman, J.; Dauphinot, J., concurs and dissents with opinion).: Held: The trial court did not abuse its discretion when it determined that the child victim was unavailable to testify and that the CPS investigator was neutral and detached as required by article 38.071 of the code of criminal procedure. Appellant was not denied his Sixth Amendment right to confrontation because he had a prior opportunity to cross-examine the victim through written interrogatories as provided by article 38.071(2)(b). It was harmful error for the trial court not to require the State to elect among the different offenses listed in count IV because we are unable to determine whether the jury’s verdict was unanimous as to any of the count IV offenses. The evidence was legally and factually sufficient to support the jury’s findings that Appellant committed one count of indecency with a child and two counts of aggravated sexual assault. We affirm in part and reverse and remand in part.; Concurrence and Dissent: The majority correctly disposes of the sufficiency and jury charge issues, but the article 38.071 provision for written interrogatories does not satisfy the confrontation and cross-examination requirements of due process. It compounds the problem by allowing the creation of yet another testimonial statement that violates the requirements of confrontation and cross-examination.
ABN AMRO Mortgage Group v. TCB Farm & Ranch Land Invs., No. 02-0005-292 (July 27, 2006) (Gardner, J., joined by Dauphinot and Holman, JJ.).: Held: Appellant, the holder of the first-executed of two real-property liens, is entitled to redeem the subject property from Appellee, who purchased the property at a transferred-tax-lien foreclosure sale, even though the tax-lien transferee recorded its lien before Appellant recorded its lien. The foreclosure of the transferred-tax lien did not extinguish Appellant’s lien because the principle of lien priority based on time of filing does not apply to a tax lien
Fugate v. State, No. 02-0004-548 (July 27, 2006) (op. on reh'g) (Livingston, J., joined by Holman, J.; Dauphinot, J., concurs and dissents with opinion).: Held: The State's notice of enhancement of punishment, filed one week before trial began on guilt-innocence, was filed within a reasonable time before trial. The court of criminal appeals recently held in Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006), that there is no bright-line rule of a minimum of ten days' notice of enhancement.; Concurrence and Dissent: The notice was not reasonable, but the error in providing late notice is harmless beyond a reasonable doubt because Appellant pled true to the challenged enhancement allegation. The court of criminal appeals should hold that an enhancement notice that affects the range of punishment is a de facto amendment of the indictment and that a minimum of ten days' notice before trial is required for notice to be timely. Harm, not timeliness, should be evaluated on a case-by-case basis.
Emenhiser v. State, No. 02-0004-248 (July 27, 2006) (op. on Appellant's PDR) (Gardner, J., joined by Walker and McCoy, JJ.).: Held: The trial court did not violate Appellant's Sixth Amendment right to compulsory process by quashing a subpoena served by Appellant on the day of trial; the trial court did not err by excluding the testimony of a witness who violated "the Rule"; the trial court did not err by refusing to suppress evidence seized under a search warrant; the trial court did not err by denying Appellant's challenge for cause to a vacillating veniremember; and the evidence was legally and factually sufficient to support Appellant's conviction for sexual performance by a child and indecency with a child.

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of July 24, 2006