Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of June 14, 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.

City of Carrollton v. HEB Parkway S., Ltd. & HEB/Medical Parkway, Ltd,   No. 02-09-00179-CV    (June 17, 2010)   (Dauphinot, J., joined by McCoy and Meier, JJ.).

Held:   The record shows that Appellee never applied for a variance, and nothing in the record demonstrates that applying for a variance would have been futile. Accordingly, Appellee’s regulatory takings claims based on an exaction are not ripe, and the trial court therefore erred by denying Appellant’s plea to the jurisdiction on those claims.

Clark v. State,   No. 02-08-00300-CR   (June 17, 2010)   (Per Curiam).

Held:   The testimony by Appellant’s accomplice is sufficiently corroborated, and the evidence is factually sufficient to support Appellant’s conviction. Further, Appellant did not meet his burden of showing by a preponderance of the evidence that his trial counsel’s representation fell below the standard of prevailing professional norms.

Campbell v. State,   No. 02-08-00262-CR   (June 17, 2010)   (McCoy, J., joined by Livingston, C.J.; Dauphinot, J., concurs with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   The trial court erred by failing to suppress statements made by Appellant in response to police officer’s questioning after arrest and before Appellant received his Miranda warnings; however, the error was harmless.

Concurrence:   Under Miranda, the prosecution may not use any statement stemming from questioning initiated by law enforcement officers when a person is not free to leave unless the person has first received his Miranda warnings, and in Texas, a person must be warned whenever the police detain him and start asking questions because that person is never free to leave until the police allow him to do so.

Ex parte Dangelo,   Nos. 02-09-00266-CR, 02-09-00268-CR   (June 17, 2010)   (Livingston, C.J., joined by Dauphinot and McCoy, JJ.). [Note: Both of these opinions were withdrawn December 16, 2010.]

Held:   Appellant has a right under the Fifth Amendment to the United States Constitution to not answer polygraph questions or otherwise participate in sex offender counseling to the extent that doing so could provide a link in the chain to criminal charges independent of the bodily injury to a child offense that he is serving community supervision for. U.S. Const. amend. V; see Minnesota v. Murphy, 465 U.S. 420, 422–35, 104 S. Ct. 1136, 1139–46 (1984). Appellant does not have a Fifth Amendment right to not answer polygraph questions that ask only about violations of his community supervision that could not lead to independent criminal charges. See Murphy, 465 U.S. at 435 n.7, 104 S. Ct. at 1146 n.7. Appellant’s complaint about the trial court’s requiring him to attend sex offender counseling generally when he has not been convicted of a sex-related offense concerns the trial court’s allegedly exceeding its statutory authority, not constitutional issues. Thus, that complaint is not cognizable in a habeas corpus proceeding under article 11.072 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 11.072, § 3(c) (Vernon 2005).

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