Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of November 01, 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.

In re Richardson,    No. 02-10-00337-CV    (Nov. 2, 2010)    (orig. proceeding) (Walker, J., joined by Livingston, C.J., and Dauphinot, J.).

Held:   Because the trial court=s August 30, 2010 order dismissing Richardson=s claim against Dr. Foster for the prolonged pain and disability caused by his alleged misdiagnosis of her ankle fracture fails to carry out our March 11, 2010 mandate affirming the portion of the trial court=s judgment that denied Foster=s motion to dismiss and interferes with our opinion and judgment holding that Richardson=s expert=s report (the exact same report Richardson relies on in the trial court) was adequate as to that claim, the trial court=s August 30, 2010 order constitutes an abuse of discretion. Requiring Richardson to pursue a second interlocutory appeal to obtain relief we have already granted in a prior interlocutory appeal is not an adequate remedy at law. Thus, we conditionally grant a writ of mandamus directing the trial court to vacate its August 30, 2010 order granting Dr. Foster=s second motion to dismiss to the extent that it dismisses Richardson=s claims against Dr. Foster for prolonged pain during the one-month time period that he allegedly failed to diagnose or misdiagnosed her ankle fracture.

Waters v. State,    No. 02-10-00080-CR    (Nov. 4, 2010)   (Gabriel, J., joined by Walker, J.; Dauphinot, J., dissents with opinion).

Held:    The State's remarks during closing argument at punishment referring to jury charge instructions about good-conduct time and parole were proper.

Dissent:    The State's remarks violated the plain language of the statute because they urged the jury to "consider the manner in which the parole law [could] be applied to this particular defendant[,]" Appellant. The legislature, not the courts, should amend the statute so that it either clearly allows juries to consider the parole law or clearly forbids it.

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