Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of March 8, 2010

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.

Reed v. State,    No. 02-09-00126-CR    (Mar. 11, 2010)    (McCoy, J., joined by Gardner, J.; Dauphinot, J., dissents with opinion).  [Note: both opinions at the same link.]

Held:     Based on Curtis v. State, 238 S.W.3d 376, 380–81 (Tex. Crim. App. 2007), the totality of the circumstances surrounding the stop support a reasonable suspicion that Appellant was driving while intoxicated. The officer testified that he stopped Appellant because of her driving violations and because he suspected that she might be intoxicated based on the time of day, the area of the city that she had been coming from, and his experience with intoxicated drivers exhibiting similar characteristics of driving.

Dissent:    The combined circumstances of the officer’s seeing (1) Appellant’s vehicle traveling at 12:25 a.m. on a limited ingress/egress major highway through an area containing bars and restaurants, (2) the vehicle’s tires crossing or touching the right lane line twice, and (3) Appellant indicating her exit from the freeway for more than 100 feet do not provide reasonable suspicion to believe that Appellant was driving while intoxicated.

In re Estate of Conard L. Florence,    No. 02-08-00445-CV    (Mar. 11, 2010)     (McCoy, J., joined by Livingston and Meier, JJ.).

Held:    In a will construction case, the only evidence presented showed that for over twenty plus years the term “tangible property” was treated as if it meant “tangible personal property.” Thus, as a matter of law, Appellees’ declaratory judgment action did not begin to accrue until Appellant asserted a different interpretation of “tangible property,” thereby demonstrating that he was not going to abide by Appellees’ construction of the will.

Hamilton v. Pechacek,   No. 02-09-00115-CV   (Mar. 11, 2010)   (Walker, J., joined by Livingston and Meier, JJ.).

Held:  Under chapter 14 of the Texas Civil Practice and Remedies Code, which governs certain inmate litigation, a trial court’s determination to hold a hearing on a dismissal motion is discretionary. Accordingly, by considering Pechacek’s chapter 14 dismissal motion by submission only the trial court did not deny inmate Hamilton any constitutional right to be heard. Also, the trial court did not abuse its discretion by failing to conduct an evidentiary hearing on Hamilton’s motion for new trial because the motion did not allege jury misconduct or present any question of fact upon which additional evidence must be heard.

Three of Hamilton’s claims have an arguable basis in law and thus the trial court abused its discretion by dismissing them under chapter 14. Another of Hamilton’s claims is deficient, but the trial court abused its discretion by dismissing it with prejudice because Hamilton possibly may address the deficiency by amending his pleadings. Hamilton’s remaining claims before us were properly dismissed with prejudice as having no arguable basis in law.

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