Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of March 17, 2008

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 (PDF version) can be accessed by clicking the cause number.

Stephenson v. State, Nos. 2-07-034-CR, 2-07-035-CR, 2-07-036-CR (Mar. 20, 2008) (per curiam).: Held: The trial court did not abuse its discretion by summarily denying trial counsel's motion to withdraw where counsel merely alleged that a conflict of interest existed but did not elaborate. Further, because alleged double jeopardy violations are not clearly apparent on the face of the record, the court cannot address Appellant's unpreserved double jeopardy complaints.

Gaitan v. State, No. 2-06-399-CR (Mar. 20, 2008) (Walker, J., joined by Cayce, C.J., and Holman, J.).: Held: Gaitan's Confrontation Clause constitutional rights were not violated when the trial court allowed a child witness to testify by closed-circuit television because the evidence establishes that the child was "unavailable" to testify under the statutory definition. Additionally, the trial court made a case-specific determination that the use of closed-circuit television to present the child's testimony was necessary to protect the child's welfare, that the child would be traumatized by being forced to testify in Gaitan's presence, and that the emotional distress that the child would suffer if forced to testify in Gaitan's presence would be more than de minimis and more than mere nervousness, excitement, or some reluctance to testify. And because the State met its burden to present sufficient evidence of the requisite statutory and constitutional factors, Gaitan's as-applied constitutional challenge fails; article 38.071, section 3 did not operate unconstitutionally as applied to Gaitan in this case. Alternatively, after carefully reviewing the record and performing the appropriate harm analysis, even if the trial court erred by permitting the child to testify via closed-circuit television, we hold that beyond a reasonable doubt the trial court's error did not contribute to Gaitan's conviction or punishment because other evidence admitted during the trial, including Gaitan's own testimony, showed that Gaitan shot and murdered the victim.

Smith v. Huston, No. 2-07-117-CV (Mar. 20, 2008) (Livingston, J., joined by Walker and McCoy, JJ.).: Held: The trial court correctly determined that owners of lots adjacent to airstrip owned by Appellees and cross-Appellants were obligated to pay annual fee for use of airstrip pursuant to unambiguous easement agreements benefiting the lot owners' property, without any requirement that the fees be reasonable, that the airstrip owner use the fees solely for maintenance of the airstrip, or that the airstrip owner give an accounting for fees received. The trial court also correctly concluded that the airstrip owner may not withhold the lot owners' access to the airstrip while any charged fees are unpaid.

Schiffert v. State, No. 2-02-278-CR (Mar. 20, 2008) (op. on PDR) (Gardner, J., joined by Cayce, C.J., and Livingston, J.).: Held: In its first opinion in this appeal, the court held that the evidence was factually insufficient to support the jury's verdict that Appellant was a party to the victim's murder. The court of criminal appeals reversed and remanded with instructions to reconsider the factual sufficiency of the evidence in light of its recent opinion in Watson v. State, 204 S.W.3d 404, 415-17 (Tex. Crim. App. 2006). Applying the factual sufficiency standard articulated in Watson, the court now holds that the evidence is factually sufficient to support the jury's verdict.