Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of August 26, 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.

Goyzueta v. State, No. 02-07-00383-CR (Aug. 26, 2008 ) (Walker, J., joined by Gardner and McCoy, JJ.).: Held: Appellant was convicted of violating a permanent injunction under the "gang injunction statute." See Tex. Penal Code Ann. § 71.021 (Vernon 2003). First, Appellant cannot demonstrate that section 71.021 of the penal code is unconstitutionally overbroad because the statute only applies to individuals who are subject to a temporary or permanent order and who knowingly violate that order. Furthermore, section 71.021 is not unconstitutionally vague as applied to Appellant because a person in Appellant's situation would have clear notice that violating the curfew provision in the permanent injunction would amount to a criminal offense. Additionally, Appellant did not show that the statute was arbitrarily applied to him because the arresting officer testified that he knew that Appellant was under the gang injunction and that he was violating the curfew provision. Next, section 125.065 of the civil practice and remedies code does not violate the separation of powers doctrine because the legislature has simply allowed trial courts to impose reasonable requirements to prevent gang members from engaging in future gang activities while retaining the authority to impose a class A misdemeanor for violating a court-imposed restriction. Finally, Appellant did not properly preserve error on his issue that the injunction curfew provision is unconstitutional because he did not include the issue in his motion to dismiss and the trial court's certification of appeal states that Appellant can only appeal matters raised by written motion.

Carr v. City of Fort Worth, Tex., No. 02-07-00375-CV (Aug. 26, 2008) (Walker, J., joined by Gardner and McCoy, JJ.).: Held: Because the summary judgment evidence conclusively established that a fire fighter was suspended, that the suspension created a vacancy, that the fire chief was required to fill the vacancy from the promotion eligibility list, and that Carr was the top-ranked candidate on the promotion eligibility list, the trial court erred by granting Appellees' motion for summary judgment and by denying Carr's motion for summary judgment on this issue. Consequently, the trial court denied as moot Appellees' defense of governmental immunity and did not reach Carr's claims for mandamus relief and back pay or his claims for attorney's fees and costs under the Declaratory Judgment Act. Accordingly, we remand the case to the trial court for consideration of the issue of governmental immunity as applied to mandamus relief, backpay, declaratory judgment, attorney's fees, and costs.

Davis v. State, No. 02-07-00177-CR (Aug. 26, 2008) (Walker, J., joined by Livingston and McCoy, JJ.).: Held: Appellant raises eighteen points challenging the validity of the jury's guilty verdict on a murder charge. One of Appellant's points raises a Confrontation Clause challenge to the testimony of a police officer about statements that the murder victim made to the officer regarding a prior altercation between the victim and Appellant. Based on United States Supreme Court case law released during the pendency of this appeal, we hold that allowing such testimony was error, but that it was harmless, overrule all of Appellant's points, and affirm the trial court's judgment.