Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of July 12, 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.

Pecina v. State,   No. 02-05-00456-CR    (July 15, 2010)   (op. on Remand) (Gardner, J., joined by Walker, J.; Dixon W. Holman, J. (Senior Justice, Retired, Sitting by Assignment), dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   The trial court abused its discretion by admitting Appellant's statements taken after violation of his Fifth Amendment right to counsel. The police, through a magistrate, initiated further custodial interrogation of Appellant following Appellant's affirmative invocation of his right to counsel. Because Appellant did not initiate the questioning by the police after asserting his right to counsel, Appellant's subsequent waiver of his right to counsel is presumed invalid.

Dissent:   Although Appellant affirmatively accepted a court-appointed attorney when the magistrate arraigned him, he never invoked his right to have counsel present with him during any impending interrogation; thus, the Fifth Amendment is not implicated in this case. Because the Supreme Court's holding in Montejo v. Louisiana establishes that police are free to initiate interrogation after an arraignment or similar proceeding—and that is precisely what occurred in this case—the police did not violate Appellant's Fifth Amendment rights when they questioned him about murdering his wife. Appellant voluntarily waived his Sixth Amendment right to counsel and voluntarily confessed to his crime. Therefore, the trial court did not abuse its discretion by admitting his statement.

Ratliff v. State,   No. 02-09-00275-CR    (July 15, 2010)   (Livingston, C.J., joined by Dauphinot and McCoy, JJ.).

Held:   Appellant forfeited his complaint about the trial court's admission of physical drug evidence because he did not obtain a pretrial ruling on his motion to suppress and he waited until a witness had provided substantial testimony about the evidence before objecting at trial. See Tex. R. App. P. 33.1. Also, the trial court did not err by denying appellant's motion for mistrial because the State's jury argument, which related that jurors could disagree about the factual justification for a search as long as they all agreed that the search was constitutional, was not an incorrect statement of law and was not contrary to the jury charge.

Hanson v. Greystar Dev. & Constr., LP,   No. 02-09-00397-CV    (July 15, 2010)   (Walker, J., joined by Meier, J.; Dauphinot, J., dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   The trial court did not err by granting Appellees= no-evidence and traditional summary judgment motions challenging the proximate cause element of all of Appellants= causes of action against Appellees. The summary judgment record is void of any direct or circumstantial evidence or any reasonable inference from the summary judgment evidence that any problem with the stairs was the cause in fact of Mrs. Hanson=s fall, and the summary judgment evidence conclusively establishes that Appellants did not know how, why, or where in the stairwell Mrs. Hanson fell.

Dissent:   Appellants introduced evidence that the stairs were a dangerous condition and that the dangerous condition can cause falls, from which a factfinder could infer that the stairs' condition caused the fall in this case. Accordingly, Appellants produced sufficient evidence on causation to raise an issue of fact and defeat no-evidence summary judgment.

Robertson v. Home State County Mut. Ins. Co,   No. 02-08-00280-CV   (July 15, 2010)   (op. on reh'g) (Meier, J., joined by Dauphinot, J.). [Note: This opinion was withdrawn on June 2, 2011.]

Held:   The trial court did not err by granting Home State's motion for summary judgment on the basis of the workers' compensation exclusion contained in the policy because the judgment that Robertson obtained against Redi-Mix is an obligation for which Redi-Mix is liable under labor code section 406.033.

In re Go Colorado 2007 Revocable Trust,   No. 02-10-00182-CV    (July 15, 2010)   (Walker, J., joined by Meier, J.; Dauphinot, J., dissents without opinion).

Held:   The trial court abused its discretion by enforcing the guaranty's jury waiver provision against Relator Go Colorado 2007 Revocable Trust because the Trust had not yet been created when Gregory Obert and the other defendants executed the guaranties containing the jury waiver provisions, because Obert did not sign the guaranty containing the contractual jury waiver provision in his capacity as trustee of the subsequently-created Trust, and because the Trust was not a party to the guaranty containing the contractual jury waiver provision and otherwise did not become an assignee of a guarantor.

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