Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of August 15, 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.

McCulley v. State, No. 02-09-00222-CR (Aug. 18, 2011) (Meier, J., joined by Walker and Gabriel, JJ.).: Held: During a nearly four and one-half hour interview regarding the death of Appellant's wife, Appellant was physically deprived of his freedom in a significant way, was the focus of the police's investigation, and was dependent upon the police to leave the police station. Thus, Appellant was in custody, and police should have read Appellant his Miranda and Texas Code of Criminal Procedure article 38.22 warnings at the moment the interview turned from an investigation to an interrogation. After almost four hours, police and Appellant finally read Miranda and article 38.22 warnings together. Afterwards, Appellant confessed to killing his wife. But based on the trial court's credibility determination pertaining to the testifying officer at the suppression hearing, the record does not show a deliberate tactic by the police to use a two-step question-first-warn-later strategy in an attempt to circumvent the strictures of Miranda and article 38.22. So the police cured their failure to timely advise Appellant of his rights. Furthermore, Appellant never unambiguously or unequivocally invoked his right to terminate the interview. Therefore, the trial court did not err denying Appellant's motion to suppress his confession.

Newell v. Newell, No. 02-10-00301-CV (Aug. 18, 2011) (Walker, J.; Livingston, C.J., dissents with opinion; McCoy, J., concurs with opinion). [Note: All three opinions are at the same link in one document.]: Held: Considering the limited facts regarding Clayton's alcohol use in the past and at the time of trial; considering that in the year prior to trial, he tested negative for drug use multiple times; and considering the drastic restriction placed on Clayton's alcohol use and the severe consequences of a positive alcohol test—which could be attributable to alcohol Clayton drank while his daughter was not in his possession—we hold that the trial court's order requiring him to pass three random eighty-hour alcohol tests in order to be entitled to unrestricted possession of his daughter exceeded the restrictions required to protect his daughter's best interest.; Concurrence: Although there is sufficient evidence to support alcohol testing in this case, because the timing of the testing should be limited to twelve hours after possession, the trial court abused its discretion by ordering Clayton tested either while in possession or prior to possession of his daughter.; Dissent: Based on the evidence presented at trial, which established that Appellant had abused drugs and alcohol and had consumed alcohol around his daughter even though he said he would never do so, the trial court did not abuse its discretion by ordering Appellant to take three random alcohol tests per year that were to occur within twelve hours of his possession of his daughter. Furthermore, even if the trial court had abused its discretion by requiring alcohol consumption testing, under the circumstances of this case, we should remand to the trial court rather than deleting the requirement.