Second Court of Appeals | Case Summaries

Connell v. State, No. 02-05-00468-CR (Aug. 2, 2007) (McCoy, J., joined by Cayce, C.J.; Dauphinot, J., concurring in part and dissenting in part).: Held: The jury could infer from the totality of defendant's conduct and remarks and all the surrounding circumstances that his touching complainant's anus and genitals was done with the intent to arose or satisfy his sexual desire. While there was legally sufficient evidence that defendant touched complainant's anus more there once, there was factually insufficient evidence of that charge. There was legally insufficient evidence that defendant exposed his genitals to complainant where defendant was participating in a game in which the participants would sneak up and pull each other's pants down and defendant was not the one that pulled his own pants down.; Concurrence and Dissent: The majority is correct as to the offenses of indecency by exposure and indecency by contact with the anus, but regarding the conviction for indecency by contacting the complainant's genitals, there is no evidence of Appellant's intent to arouse and gratify. The only evidence of the contact is Appellant's statement, and it demonstrates a nonculpable mental state. Further, we do not know when or where this touching occurred. There is no evidence that the event occurred in Tarrant County or even in Texas. Appellant should therefore be acquitted of this offense.
City of Carrollton v. Singer, No. 02-06-00322-CV (Aug. 2, 2007) (Livingston, J., joined by Dauphinot, J.; Cayce, C.J., dissents with opinion).: Held: The City is not immune from the Singers' suit for breach of contract based on an agreement under which the Singers agreed to convey land to the City in exchange for improvements to the Singers' remaining land and which the parties entered into after the City informed the Singers that their land was to be used to widen an existing road. The agreement was, in effect, a settlement of an eminent domain claim, for which the City is not immune. Thus, under Texas A&M University-Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002), the City could not create immunity for the Singers' claim by entering into a settlement agreement with the Singers.; Dissent: The majority holds that by negotiating a contract for the purchase of property a municipality waives sovereign immunity from suit for breach of the contract. The Supreme Court of Texas, however, has repeatedly rejected such judicially created waiver-by-conduct exceptions to the sovereign immunity doctrine in the contract-claims context. Further, Lawson clearly has no application to the facts of this case; no eminent domain proceeding was pending, and there is no evidence that the parties intended that the agreement settle any alleged claims against the City or the Singers. Because the majority's holding departs from the established jurisprudence of our state, I respectfully dissent.
Hurley v. Tarrant County, No. 02-05-00424-CV (Aug. 2, 2007) (Gardner, J., joined by Cayce, C.J., and Livingston, J.).: Held: The trial court did not err by granting a no-evidence summary judgment in favor of the county and a constable on the whistleblower and civil rights claims of Appellant, a former deputy constable. Appellant's summary judgment evidence failed to raise a fact issue with regard to causation on his whistleblower claim. With regard to Appellant's civil rights claim, there is no evidence the county civil service commission ratified the constable's alleged unconstitutional basis for Appellant's termination; thus, Appellant failed to establish an "official policy" for which the county can be held liable.

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of July 30, 2007