Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of August 29, 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.

Jackson v. State, No. 02-07-00209-CR (Aug. 29, 2008) (Gardner, J., joined by Cayce, C.J., and Walker, J.).: Held: Appellant’s convictions for theft and unauthorized use of a motor vehicle violate the Double Jeopardy Clause because unauthorized use of a motor vehicle is a lesser-included offense of theft. Accordingly, the proper remedy is to reform the judgment to dismiss Appellant’s conviction for the lesser-included offense of unauthorized use of a motor vehicle. Additionally, the evidence is legally and factually sufficient to prove that the car dealership’s finance director was the owner of the vehicle and that Appellant appropriated and operated the vehicle without the effective consent of the finance director.

Harkins v. State, No. 02-06-00412-CR (Aug. 29, 2008) (McCoy, J., joined by Dauphinot, J.; Cayce, C.J., concurs with opinion). [Note: Both opinions are at the same link in one document.]: Held: There was legally and factually sufficient evidence for the jury to convict Appellant of DWI. Furthermore, while the trial court did improperly comment on the weight of the evidence in the jury charge by stating that it was no defense that Appellant was entitled to use “the,” rather than “a,” dangerous drug in its instruction under section 49.10 of the penal code, neither this error nor the trial court’s failure to include the complete, statutory definition of “dangerous drug” was egregiously harmful to Appellant. The more contested issue was whether Appellant’s erratic driving was caused by drug-related intoxication or by her other medical conditions, and not whether the drug that she admitted she had taken was a “dangerous drug.”

Concurrence: The trial court did not err by submitting an instruction on section 49.10 of the penal code that tracks the language of the statute.

Adams v. State, Nos. 02-07-00263-CR 02-07-00264-CR (Aug. 29, 2008) (Livingston, J., joined by Holman and Gardner, JJ.).: Held: The trial court did not abuse its discretion by denying Appellant’s motion to suppress evidence obtained using a bait car because the use of bait cars does not violate law enforcement’s duty to prevent and suppress crime under article 2.13 of the Texas Code of Criminal Procedure. Additionally, the use of bait cars does not violate public policy as a matter of law.

Estate of Harley D. Webb, Jr., No. 02-07-00304-CV (Aug. 29, 2008) (Dauphinot, J., joined by Livingston and Gardner, JJ.).: Held: Because Appellant was serving as trustee of the Harley D. Webb, Jr. Family Trust when Appellees filed their petition to modify the trust, and because Appellant was a necessary party to Appellees’ family settlement agreement, the trial court abused its discretion in striking Appellant’s plea in intervention.

Washington v. State, No. 02-07-00433-CR (Aug. 29, 2008) (Per Curiam).: Held: Appellant’s claim that his sentence for robbery was disproportionate to the crime committed was not preserved because, although he filed a motion for new trial, the record does not indicate that he presented his motion for new trial to the trial court.

Reynolds v. Murphy, No. 02-07-00358-CV (Aug. 29, 2008) (Livingston, J., joined by Gardner and McCoy, JJ.).: Held: After this court reversed in part and remanded this case because the trial court had granted summary judgment on a claim for which Appellee did not move for summary judgment, the trial court erred by striking Appellant’s newly pled causes of action and by freezing discovery, on the ground that this court’s mandate restricted the trial court to considering only the claim upon which summary judgment had been granted in error. Nothing in this court’s mandate so limited the trial court. Additionally, Appellant’s nonsuit of its remaining claim after the trial court struck its new claims did not vitiate the trial court’s rulings striking Appellant’s new claims and freezing discovery and, thus, did not moot this appeal.