Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of August 30, 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.

Miller v. State, Nos. 02-09-00167-CR, 02-09-00168-CR, 02-09-00169-CR (Aug. 31, 2010) (Per Curiam). [Note: These opinions were withdrawn November 8, 2010.]: Held: The trial court erred by failing to quash the December 2008 indictments alleging Appellant violated the terms of his civil commitment order because they did not allege an offense against the law. The duties imposed by Chapter 841 of the health and safety code are suspended while a person subject to a civil commitment order is confined, but the December 2008 indictments did not allege that Appellant was not confined at the time he allegedly violated the terms of his civil commitment order. Because the December 2008 indictments did not allege that Appellant was not confined, the December 2008 indictments did not allege an offense against the law. In addition, Appellant failed to preserve for appellate review his complaint that an August 2008 indictment did not state an offense in clear and intelligible terms.

Washington v. State, Nos. 02-08-00442-CR, 02-08-00443-CR, 02-08-00444-CR (Aug. 31, 2010) (Gardner, J., joined by Livingston, C.J., and Walker, J.).: Held: The evidence is factually sufficient to sustain Appellant's convictions. Appellant's conviction and sentence for evading arrest or detention do not violate his rights against double jeopardy. Further, the trial court did not err by sentencing Appellant as a first-degree felon for the state jail felony of evading arrest because the applicable sentencing range was enhanced first by the jury's deadly weapon finding and second by the trial court's habitual offender finding.

Blevins v. State, No. 02-09-00237-CR (Aug. 31, 2010) (Gardner, J., joined by Meier, J., and Dixon W. Holman, J. (Senior Justice, Retired, Sitting by Assignment)). [Note: Opinion withdrawn 12-30-2010.]: Held: The evidence is legally sufficient to sustain Appellant's conviction for attempted murder; his actions constituted more than mere preparation. In addition, the evidence is legally and factually sufficient to sustain Appellant's conviction for felony violation of a protective order.

Neyland v. Raymond, No. 02-09-00410-CV (Aug. 31, 2010) (Gardner, J., joined by McCoy, J., and William Brigham, J. (Senior Justice, Retired, Sitting by Assignment)).: Held: The trial court did not abuse its discretion by disproportionately dividing community property in favor of Appellee. The trial court had sufficient information upon which to exercise its discretion, the property division was not manifestly unjust and unfair, and the trial court was not required to hold a hearing on Appellant's motion for new trial.

Snell v. State, No. 02-09-00277-CR (Aug. 31, 2010) (Charles Bleil (Senior Justice, Retired, Sitting by Assignment), joined by McCoy, J.; Dauphinot, J., concurs with opinion). [Note: Both opinions are at the same link in one document.]: Held: The trial court did not err by failing to give a spoliation instruction to the jury; there is no allegation of bad faith on the part of the State.; Concurrence: At trial, the State elicited evidence of the contents of the videotape, and, because the videotape had been destroyed, Appellant was unable to challenge the accuracy of the testimony. The State should have seized and preserved the videotape. But because there was no showing below that the State caused or knowingly allowed the videotape to be destroyed, Appellant was not entitled to a spoliation instruction.

Rice v. Metro. Life Ins. Co., No. 02-09-00248-CV (Aug. 31, 2010) (Livingston, C.J., joined by Dauphinot and Gardner, JJ.).: Held: In this life insurance dispute, the trial court erred by granting Appellee's traditional and no-evidence motion for summary judgment on Appellants' claims of breach of contract (in part), bad faith, promissory estoppel, violation of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA), and violation of chapter 541 of the insurance code. The trial court also erred by granting Appellee's motion for summary judgment on Appellants' damage theories of loss of insurance coverage and loss of an opportunity to obtain alternate coverage. Although Appellant Larry Rice's original dependent life insurance coverage ended upon Appellant Glenda Rice's retirement, more than a scintilla of evidence shows that the parties entered into a new agreement for Larry's coverage through actions occurring after the retirement. Also, more than a scintilla of evidence shows that Appellee misrepresented Larry's coverage and that Appellants detrimentally relied on the misrepresentation.
The trial court properly granted summary judgment against Appellants' claims for breach of fiduciary duty and fraud by nondisclosure because Appellants did not present more than a scintilla of evidence to show a fiduciary or confidential relationship between them and Appellee. The trial court also correctly granted summary judgment against Appellants' damage theories of loss of premiums and mental anguish because the evidence shows that the premiums have been correctly repaid to Appellants, and Appellants did not present any evidence of mental anguish. Finally, to the extent that Appellants' breach of contract claim alleges a breach of the certificate of insurance that created Larry's original coverage, the trial court properly granted summary judgment because that coverage could not be expanded or altered by the doctrines of waiver or estoppel, and Appellants cannot show that Appellee breached an implied term of the certificate. See Ulico Cas. Co. v. Allied Pilots Ass'n, 262 S.W.3d 773, 775–87 (Tex. 2008).