Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of September 28, 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.

Walker v. State,   No. 02-07-00272-CR    (Oct. 1, 2009)   (Livingston, J., joined by Meier, J.; Dauphinot, J., dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:    Although the trial court gave a proper limiting instruction in the jury charge as to the purpose for which the jury could consider the testimony of a witness impeached with prior inconsistent statements, it erred by failing to give a complete limiting instruction at the time the witness testified, as required by Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996). However, the error was harmless in light of the entire record, which included overwhelming evidence of Appellant’s guilt.

Dissent:   The trial court’s error in refusing to contemporaneously instruct the jurors that they could not consider evidence of Katrina Smith’s prior statements as evidence of Appellant’s guilt was harmful, given that (1) the issue of whether Appellant knew that the officers were officers before the shooting was heavily litigated by both parties throughout the trial, (2) some testimonial, physical, and forensic evidence supported Appellant’s version of the events, (3) evidence to the contrary was not overwhelming, and (4) the State relied on the challenged testimony to further its “suicide by cop” theory.

Lugo v. State,   No. 02-08-00233-CR    (Oct. 1, 2009)   (Meier, J., joined by Cayce, C.J., and Dauphinot, J.).

Held:   The investigating officer’s remarks to Appellant during interrogation did not overbear Appellant’s will; rather, if anything, they conveyed a sense that the veracity of Appellant’s statement would eventually be discovered. Additionally, because Appellant challenges the sufficiency of the evidence to support an enhancement paragraph, not the form of the paragraph, he can raise this issue on appeal even though he did not object to the paragraph until after the jury returned a verdict of guilty. Considering that Appellant pleaded true to the enhancement paragraph, however, we hold that he failed to demonstrate that the record affirmatively reflects that the prior conviction should not have been used for enhancement purposes.

Fort Worth & W. R.R. Co. v. Enbridge Gathering (NE Tex. Liquids), L.P.,   Nos. 02-07-00403-CV;    02-07-00405-CV;    02-07-00406-CV    (Oct. 1, 2009)   (Cayce, C.J., joined by Gardner and Walker, JJ.).

Held:   Gas companies and pipeline common carriers have statutory authority under section 181.004 of the Texas Utilities Code and section 111.019 of the Texas Natural Resources Code to condemn rural rail transportation district property and lay pipelines under railroad. Because rail districts do not have state-wide jurisdiction, the Administrative Procedure Act does not apply and Appellees were not required to exhaust rail district’s administrative procedures before filing condemnation proceedings.

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