Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of March 31, 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.

In re Guardianship of Gibbs, No. 2-05-143-CV (Apr. 3, 2008) (op. on reh'g) (Cayce, C.J., joined by Gardner and Walker, JJ.).: Held: Neither the probate code, the trust code, the temporary guardianship, nor the application to convert the temporary guardianship to a permanent guardianship gives the trial court subject matter jurisdiction over Appellee’s tort claims against Appellants for restitution and breach of fiduciary duty. Accordingly, the trial court lacked subject matter jurisdiction over those claims, and its judgment rendered against Appellants on the claims is void.

Karenev v. State, No. 2-05-425-CR (Apr. 3, 2008) (Dauphinot, J., joined by Gardner, J.; McCoy, J., concurs without opinion).: Held: Section 42.07(a)(7) of the penal code, which provides that "[a] person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he . . . sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another," is unconstitutionally vague on its face and therefore void.

Dancer v. State, No. 2-06-377-CR (Apr. 3, 2008) (per curiam).: Held: The trial court properly denied Appellant's rule 615 motions for production of two witnesses' written statements following the witnesses' direct examinations. The undisputed evidence showed that neither the detective—who admitted to losing the two written statements—nor the prosecutor physically possessed the statements at the time Appellant requested them, and the statements were not within their control or readily accessible. The State, therefore, did not "possess" the missing statements for purposes of rule 615. Further, because the trial court did not order the State to produce the statements, the State did not "elect" not to comply with such an order.

In re B.F., No. 2-07-334-CV (Apr. 3, 2008) (Livingston, J., joined by McCoy, J.; Cayce, C.J., concurs without opinion): Held: Because section 263.405(i) of the Texas Family Code is void as a violation of the separation of powers provision of the Texas constitution, Appellant's issues were properly raised in her combined motion for new trial and statement of points. The evidence supporting the termination of Appellant's parental rights was factually sufficient to support the trial court's best interest findings under family code section 161.001(2).