Second Court of Appeals | Case Summaries

Barnett v. State, No. 02-0005-288 (Aug. 10, 2006) (Holman, J., joined by Walker and McCoy, JJ.).: Held: In this appeal from a conviction for driving while intoxicated, Appellant failed to preserve his facial challenge to the constitutionality of the Arlington city ordinance that provided the basis for the officer to stop Appellant’s vehicle. Generally, a facial challenge to the constitutionality of a statute or ordinance under which the Appellant is convicted may be raised for the first time on appeal. Here, however, Appellant was not challenging the statute upon which he was convicted. Accordingly, he was required to object at trial to preserve his complaint.
In re D.A.R., No. 02-0006-043 (Aug. 10, 2006) (Dauphinot, J., joined by Livingston, J.; Cayce, C.J., concurs without opinion).: Held: Section 263.405(i) of the Texas Family Code, which Appellant does not challenge, bars us from considering Appellant's points on appeal because they do not appear in Appellant's statement of points or motion for new trial.
White v. State, No. 02-0005-357 (Aug. 10, 2006) (Holman, J., joined by Gardner, J.; Dauphinot, J., dissents with opinion).: Held: The trial court did not err by denying Appellant’s motion to suppress evidence obtained pursuant to the officer’s warrantless entry because the officer’s entry into the house was justified under the emergency doctrine. The trial court did not abuse its discretion in admitting the complainant’s statements as excited utterances because the complainant was still dominated by the emotions, excitement, fear, or pain of the event when she made the statements. The prosecutor’s statements during closing arguments did not amount to a comment on the failure of Appellant to testify because there was no clear implication that the comment referred to Appellant’s failure to testify.; Dissent: The trial court should have granted Appellant’s motion to suppress because the warrantless entry into the house was unlawful; there was no emergency after the police arrived because the complainant was not in danger. Further, the complainant’s narrative response to the investigating police officer’s directive to explain what had happened after they had already spoken at his arrival was inadmissible hearsay. Finally, the prosecutor’s closing argument, “He’s got to say he hit her,” is clearly a comment on Appellant’s failure to testify, and the trial judge’s erroneous interjection of his own opinion of what the prosecutor said should not be used to create an ambiguity.
Castro v. State, No. 02-0005-210 (Aug. 10, 2006) (Holman, J., joined by Cayce, C.J.; McCoy, J., dissents with opinion).: Held: Appellant, a passenger in a vehicle, had standing to challenge the traffic stop of the vehicle. The State failed to prove that the unknown officer who stopped the vehicle had specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that the driver of the vehicle had been engaged in a traffic violation. No person who was present at the scene of the stop testified. The sole officer testifying was told by someone not identified that the reason for the stop was failure to signal a lane change, or failure to signal within a hundred feet before turning. The officer's testimony was purely subjective and did not present an objective description of the facts underlying the reasonableness of the stop.; Dissent: The dissent would hold that police had reasonable suspicion to stop the vehicle because the driver's failure to signal a lane change was, in and of itself, an objective reason for the stop. Additional facts are necessary to justify a stop only when the stop is otherwise based on the subjective opinion of the officer. Because the stop here was based on the observation of an objective offense rather than on the officer’s subjective judgment that an offense might have occurred, no additional facts were required. That the testifying officer was not present when the stop was made but was told by another officer of the reason for the traffic stop does not affect the objective nature of the reason for the stop because an officer may rely upon information relayed to him by other officers and because hearsay is admissible in a suppression hearing.
Citizens Nat'l Bank v. City of Rhome, No. 02-0005-337 (Aug. 10, 2006) (McCoy, J., joined by Cayce, C.J., and Livingston, J.).: Held: Evidence was legally and factually insufficient to establish that fuel dispensers located at a convenience store/service station were personal property for taxation purposes; instead, the evidence conclusively established that the fuel dispensers were fixtures and therefore qualified as real property under the tax code.

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of August 7, 2006