Second Court of Appeals | Case Summaries

NP Anderson Cotton Exch. v. Potter, No. 02-06-00121-CV (July 12, 2007) (Livingston, J., joined by Dauphinot, J.; Cayce, C.J., concurs without opinion).: Held: The 2001 Lease and the 2003 Consent to Assignment were separate parts of the same contract that unambiguously gave Potter an option to renew and extend the 2001 Lease for an additional five years. Although the trial court erred in determining that the contract was ambiguous, the jury's determination that Potter was entitled to extend the 2001 Lease rendered the error harmless. The trial court abused its discretion by awarding Potter unsegregated attorneys' fees. Because it was possible that Potter could have prevailed on some, but not all, claims, the trial court should have required evidence of segregation before sending this case to the jury. Reversed and remanded on the issue of attorneys' fees only.
Johnston v. State, No. 02-06-00358-CR (July 12, 2007) (Walker, J., joined by Dauphinot and Gardner, JJ.).: Held: Evidence was legally sufficient to support Johnston's conviction for aggravated sexual assault of a child younger than fourteen years of age where mentally impaired child victim testified concerning each element of the offense. Evidence was also factually sufficient to support Johnston's conviction, even though the mentally impaired child victim testified that it both was and was not Johnston and was and was not her foster father who sexually assaulted her, because the proof of Johnston's guilt was not so obviously weak as to undermine our confidence in the jury's determination, and the great weight and preponderance of the evidence did not contradict the jury's finding of guilt. The trial court did not abuse its discretion in overruling an objection to the State's opening statement because it was a proper statement of a fact that the prosecution in good faith expected to and did prove.
Johnson v. State, No. 02-06-00072-CR (July 12, 2007) (Gardner, J., joined by McCoy, J.; Livingston, J., dissents with opinion).: Held: The trial court erred by signing orders nunc pro tunc to add an affirmative deadly weapon finding to the judgment four and a half years after signing the judgment. A judgment nunc pro tunc may correct only clerical errors, not judicial errors or omissions. There is no evidence in the record that a deadly weapon finding was part of Appellant's plea agreement; Appellant pleaded guilty only to the charge of attempted capital murder, not to the indictment's deadly weapon allegation; and the trial court found him guilty only of attempted capital murder, not "as alleged" or "as charged in the indictment"; and the trial court typed "NONE" in the space for "Findings on Deadly Weapon" on the original judgment. Thus, the omission of the deadly weapon finding was not a clerical error but the product of judicial reasoning, and the nunc pro tunc orders are void as a matter of law.; Dissent: No judicial reasoning was necessary to see that Appellant had notice of and pled guilty to attempted capital murder by shooting two people with a deadly weapon; this took place in the 2001 plea proceeding. If the trial court had not believed that the "shooting" with a deadly weapon allegation was true, it would not have accepted Appellant's guilty plea. Here, the trial court made two deadly weapon findings—an affirmative finding by accepting Appellant's guilty plea and a negative finding in the judgment. Thus, the nunc pro tunc was a proper remedy to correct the trial court's clerical error and align the findings.
Real Property Located at 4125 Blanton v. State, No. 02-06-00389-CV (July 12, 2007) (Livingston, J., joined by Walker and McCoy, JJ.).: Held: The substantive components of the real property seizure warrant were in compliance with the statutory requirements, and a potentially defective title, which was not a substantive component, did not render the warrant defective. Because the evidence was legally and factually sufficient to establish that Appellant produced methamphetamine at his home, because the seizure warrant was valid, and because the actual seizure of the property was conducted correctly, Appellant's due process rights were not violated. Further, the trial court's use of the term "narcotic" to describe methamphetamine in its findings of fact and conclusions of law did not tarnish the sufficiency of the evidence because "narcotic" is a term universally used to describe illegal drugs, including methamphetamine.
Adobe Land Corp. v. Griffin, L.L.C., No. 02-06-00097-CV (July 12, 2007) (Gardner, J., joined by Holman and Walker, JJ.).: Held: The trial court abused its discretion by failing to grant a spoliation presumption in favor of Appellants when Appellee destroyed evidence that was potentially relevant to the claims being asserted in the underlying suit. Because the presumption would have effectively provided Appellants with some evidence of both defect and causation, the trial court erred in granting Appellee's no-evidence motion for summary judgment.
Lal v. Harris Methodist Hosp., No. 02-06-00421-CV (July 12, 2007) (Holman, J., joined by Livingston and Dauphinot, JJ.).: Held: Expert report delivered after 120-day statutory deadline required trial court to dismiss medical malpractice claim with prejudice. The Legislature removed former section 4590i's 30-day extension for mistake such as calendaring error when it recodified the statute as section 74.351 in the civil practice and remedies code, and nothing in the parties' discovery scheduling order either directly or by implication suggested that the order was an agreement to extend the deadline.

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of July 9, 2007