Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of December 1, 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.

Ringer v. Kimball, No. 02-07-00407-CV (Dec. 4, 2008) (Cayce, C.J., joined by Holman and Gardner, JJ.).: Held: A trial court does not abuse its discretion in denying an inmate's motion for bench warrant or, in the alternative, to appear via video conference when the inmate fails to provide any information in the motion by which the trial court can assess the propriety of the relief sought in light of the factors identified in In re Z.L.T., 124 S.W.3d 163 (Tex. 2003).

In re D.E.H., No. 02-07-00347-CV (Dec. 4, 2008) (Holman, J.; Cayce, C.J., concurs without opinion; Livingston, J., dissents with opinion). [Note: These Opinions were withdrawn December 3, 2009.]: Held: Appellant's argument that she did not voluntarily sign the affidavit of relinquishment—because the rule 11 agreement regarding post-termination contact is unenforceable for failure to comply with family code sections 161.206(b), 161.2061(a), and 161.2062—does not comport with the arguments that she made in her original motion for new trial, in her amended motion for new trial, or at the hearing on her motion for new trial. Appellant therefore waived her complaint for appellate review.; Dissent: Appellant preserved her complaint by raising the unenforceability of the affidavit in her motion for new trial and at the hearing on the motion; she could not have objected that the order of termination failed to incorporate the terms of the rule 11 agreement or mediated settlement agreement until she actually saw the order. Additionally, this court should adopt the burden of proof regarding affidavits of relinquishment advocated by the concurring and dissenting opinions in In re L.M.I., 119 S.W.3d 707 (Tex. 2003), leaving the burden to prove voluntariness of such an affidavit on the proponent, by clear and convincing evidence. Based on that standard, Appellees failed to prove by clear and convincing evidence that Appellant signed the affidavit voluntarily.

Adkins v. State, No. 02-08-00078-CR (Dec. 4, 2008) (Cayce, C.J., joined by Holman and Gardner, JJ.).: Held: There was legally and factually sufficient evidence to support a finding that Appellant knew a deadly weapon would be used in the attack on her daughter's boyfriend based on evidence that Appellant solicited the attack, met with the attackers shortly beforehand, rented a motel room for them afterward, and listened with apparent approval of the details of the stabbing. Furthermore, Appellant was not entitled to a charge on assault as a lesser-included offense because Appellant was guilty as a party and thereby criminally responsible for the offense committed by the others, and there was no evidence that Appellant acted alone or that a mere assault, as opposed to an aggravated assault with a deadly weapon, occurred.

Sanders v. Comerica Bank, Inc., No. 02-08-00010-CV (Dec. 4, 2008) (Walker, J., joined by Dauphinot and McCoy, JJ.).: Held: The trial court correctly granted summary judgment on Comerica's contention that it had conclusively established that Sanders failed to obtain a valid security interest in construction equipment. The description of the collateral in Sander's security agreement identified as collateral only Certificate of Stock No. 5, no language in the security agreement raised a fact question on the identity of the collateral to which Sanders's security interest attached, a subsequent financing statement provided Sanders with no further security interest than that reflected in the original security agreement, and neither Comerica's factual knowledge of Sanders's filing a subsequent financing statement nor Comerica's request that Sanders sign a subordination agreement changed the legal effect of the security agreement.