Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of May 02, 2011

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.

Sanders v. State,   No. 02-09-00221-CR    (May 5, 2011)   (Meier, J., joined by Walker, J.; Dauphinot, J., dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   Appellant has failed to show a fatal variance between the indictment and the proof at trial; thus, when viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Appellant intentionally, knowingly, or recklessly caused the complainant's bodily injuries. Furthermore, we find no evidence rebutting the presumption that Appellant's trial counsel made all significant decisions in the exercise of reasonable professional judgment. With the limited record this court has to review, we hold that Appellant has failed to meet his burden of proving by a preponderance of the evidence that his trial counsel was ineffective.

Dissent:   The majority appears to place a burden of proof on Appellant by relying on the absence of his denial of guilt as evidence of his guilt. Further, no conceivable strategy could justify trial counsel's failure to at least interview the only eyewitness, much less call him to the stand, especially when that eyewitness would have testified that the event was an accident.

Marchbanks v. State,   No. 02-10-00134-CR   (May 5, 2011)   (Charles Bleil (Senior Justice, Retired, Sitting by Assignment), joined by Gardner and McCoy, JJ.).

Held:   The trial court did not err by denying Appellant's motions for mistrial. The trial court did not abuse its discretion by denying Appellant's first motion for mistrial because the State corrected its witness's incorrect testimony by recalling the witness and disclosing the witness's misstatement to Appellant's counsel at a time when counsel could effectively use it in the trial. Appellant forfeited his point regarding his second motion for mistrial because his objection to the State's jury argument at trial does not match his complaint about the argument on appeal.

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