Second Court of Appeals | Case November

Derichsweiler v. State, No. 02-08-00117-CR (Nov. 25, 2009) (Walker, J., joined by Dauphinot, J.; Gardner, J., dissents with opinion). [Note: Both opinions are at the same link in one document.]: Held: The trial court erred by denying Derichsweiler’s motion to suppress because, based on the totality of the circumstances, the information that the police officer received from dispatch, coupled with his law enforcement experience, independent observations, and the rational inferences from all of the information, did not rise to the level of specific and articulable facts that Derichsweiler was connected with criminal activity.; Dissent: The trial court did not err by denying Appellant’s motion to suppress. The totality of the circumstances, including the officer’s training and experience, the locality, the date, the time of evening, the information conveyed to him by dispatch, and his independent observations, established reasonable suspicion for Appellant’s detention for further investigation.

FWT, Inc. v. Haskin Wallace Mason Prop. Mgmt., L.L.P., No. 02-08-00321-CV (Nov. 25, 2009) (op. on reh’g) (Meier, J., joined by Cayce, C.J., and McCoy, J.).: Held: An exception to the general rule that the holder of a preferential right cannot be compelled to purchase assets beyond the scope of the agreement subject to the preferential right in order to exercise that right exists when, as in this case, the preferential right is expressly made subject to the same terms and conditions offered by a prospective, bona fide, third-party purchaser. In such a case, the question of whether the holder of a preferential right must purchase the additional assets turns on whether the condition that requires the purchase of additional assets is commercially reasonable, imposed in good faith, and not specifically designed to defeat the preferential right.

State v. Froid, No. 02-08-00340-CR (Nov. 25, 2009) (Livingston, J., joined by Cayce, C.J., and Walker, J.).: Held: The State is not entitled to additional findings of fact and conclusions of law under State v. Cullen because it failed to object to the adequacy of the findings of fact and conclusions of law in the trial court.

Cardenas v. State, No. 02-07-00427-CR (Nov. 25, 2009) (Livingston, J., joined by Walker, J.; Cayce, C.J., dissents without opinion).: Held: The trial court erred by denying Appellant’s challenge for cause to a member of the jury panel who said that he could not honestly and fairly consider giving the minimum punishment, including probation, for Appellant’s aggravated sexual assault of a child charges. Appellant preserved error and was harmed by the trial court’s denial because he used a peremptory strike to remove the panel member, exhausted his peremptory strikes, requested and was denied additional peremptory strikes, and identified three specific objectionable panel members who sat on the jury and on whom he would have exercised peremptory strikes.

Ex parte Craft, Nos. 02-09-00244-CR, 02-09-00245-CR (Nov. 25, 2009) (mem. op. on reh’g) (per curiam).: Held: Although the State presented some evidence to show its readiness for trial within ninety days of Appellant’s arrest, including a felony information it had filed within that period, the information was filed without Appellant having waived his right to an indictment; therefore, it had failed to confer jurisdiction on the trial court. Without having invoked jurisdiction, the State could not have been ready for trial within ninety days of Appellant’s arrest as required by code of criminal procedure article 17.151.

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of November 23, 2009