Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of August 24, 2009

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.

Aldrich v. State, No. 02-05-00303-CR (Aug. 25, 2009) (op. on reh’g) (en banc) (Walker, J., joined by Livingston, Dauphinot, Gardner, and McCoy, JJ.; Cayce, C.J., dissents and concurs with opinion). [Note: Both opinions are at the same link in one document.]: Held: Appellant’s defense counsel’s pretrial conduct in misunderstanding the law, failing to adequately convey the plea offer, failing to conduct a reasonable investigation, and failing to timely obtain and disclose defense experts constituted deficient performance. Appellant’s defense counsel’s trial conduct in presenting defensive theories not supported by the evidence, continuing to misunderstand the law, failing to properly question witnesses, and making inaccurate factual statements constituted deficient performance during the trial on guilt-innocence. Moreover, Appellant established by a preponderance of the evidence that the totality of his defense counsel’s constitutionally deficient performance prejudiced his defense, that defense counsel’s errors were so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment, that defense counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result, and that but for defense counsel’s performance, the result would have been different. Reinstatement of the State’s plea offer is not proper because Appellant has not shown that but for defense counsel’s ineffective conduct he would have accepted the plea offer.; Dissenting and Concurring Opinion: Counsel’s performance was deficient, but the preponderance of the evidence does not show that counsel’s conduct so undermined the functioning of the adversarial process that the trial produced an unjust result.

Ahmad v. State, No. 02-08-00008-CR (Aug. 26, 2009) (op. on reh’g) (Gardner, J., joined by Walker, J.; Dauphinot, J., concurs without opinion).: Held: A World War II “practice bomb” falls within the penal code’s definition of “hoax bomb.” Limitations did not bar Appellant’s prosecution; the first indictment—which failed to state an offense—tolled limitations on the second indictment—which alleged possession of a hoax bomb—because both indictments arose from the same conduct, namely, Appellant’s burying the practice bomb and then pretending to find it. There was legally and factually sufficient evidence to support Appellant’s conviction and the trial court did not abuse its discretion in reopening the case to allow the State to establish evidence of venue. The indictment gave Appellant sufficient notice of the specific charge against her. Appellant waived any argument concerning lost evidence because she did not submit the complaint to the trial court.

FWT, Inc. v. Haskin Wallace Mason Prop. Mgmt., L.L.P., No. 02-08-00321-CV (Aug. 27, 2009) (Meier, J., joined by Cayce, C.J., and McCoy, J.). [Note: This Opinion was withdrawn November 25, 2009]: Held: Appellant was required to purchase assets bundled with property identified in a deed establishing its preferential right because the challenged terms and conditions included in a contract offered by a bona fide purchaser to Appellee were commercially reasonable, imposed in good faith, and not designed to defeat Appellant’s preferential right.

Granbury Minor Emergency Clinic v. Thiel, No. 2-08-00467-CV (Aug. 27, 2009) (Walker, J., joined by Gardner and McCoy, JJ.).: Held: The trial court did not abuse its discretion by determining that Dr. Spangler, a board-certified emergency room physician, was qualified to offer opinions on the standard of care, breach, and causation in a health care liability suit involving the failure to timely diagnose appendicitis; that Dr. Spangler’s report adequately sets forth the standard of care and the alleged standard of care violations by Dr. Salas; and that Dr. Spangler’s report adequately sets forth causation—that the alleged standard of care violations by Dr. Salas proximately caused Thiel’s hemicolectomy. The trial court, however, abused its discretion by failing to award attorney’s fees to the Clinic after dismissing, with prejudice, the health care liability claims Thiel alleged against the Clinic.