Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of February 06, 2012

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.

Maddox v. Vantage Energy, LLC, No. 02-11-00210-CV (Feb. 9, 2012) (Walker, J., joined by Livingston, C.J., and McCoy, J.).

Held: Because Appellants do not qualify as third-party beneficiaries of the purported Vantage/SFWA contract and do not qualify as promisees to whom Vantage made any promise, Appellants lack standing to assert claims for breach of contract and promissory estoppel. Moreover, the promise that Appellants claim Vantage made to SFWA that it "would give all un-leased mineral owners in SFWA the opportunity to accept the SFWA Deal" is not a misrepresentation of existing fact that will support a negligent misrepresentation claim; instead, it is a promise to do an act in the future that is not actionable as negligent misrepresentation.

Reyes v. State, Nos. 02-10-00334-CR, 02-10-00335-CR (Feb. 9, 2012) (Meier, J., joined by Gardner, J.; Dauphinot, J., dissents with opinion).  [Note: both opinions at the same link.]

Held: Reyes failed to procedurally perfect his objection to the trial court's consideration of the PSI report by objecting when the PSI report was introduced at trial or by objecting to the PSI report when Reyes testified to contents of the PSI report, and the rights that Reyes complains of are not systemic or absolute rights, nor was the trial court's consideration of a PSI report a waivable-only right.

Dissent: The majority does not address Appellant's issue, which is that he was denied his waivable-only right to counsel when the probation officer interviewed him for the PSI without warning him of his right not to speak to the officer and his waivable-only right to have his attorney present and without giving notice to Appellant's attorney of the interview.

Cook v. State, No. 02-10-00338-CR (Feb. 9, 2012) (Livingston, C.J., joined by Dixon W. Holman (Senior Justice, Retired, Sitting by Assignment); Dauphinot, J., dissents with opinion).  [Note: both opinions at the same link.]

Held: The trial court erred by reconvening the jury for a second deliberation on Appellant's punishment after jurors informed the court that the first verdict was not the verdict they had intended. Cases from the court of criminal appeals describe narrow exceptions to the principle that when a jury has been discharged, it loses its identity and authority as a jury. See Webber v. State, 652 S.W.2d 781, 782 (Tex. Crim. App. 1983) ("When the jury has not separated or have only momentarily separated and are still in the presence of the court and it appears that no one has talked to the jurors about the case, the court may recall the jurors to correct their verdict."); West v. State, 170 Tex. Crim. 317, 319, 340 S.W.2d 813, 815 (1960)). But the facts of this case do not match the facts of Webber or West. Because appellant sought only a mistrial at trial and did not seek judgment on the jury's first verdict, we must reverse the trial court's judgment as to punishment only and remand for a new trial on punishment.

Dissent: No error occurred during the punishment phase. Remand is therefore not only unnecessary, it is unjust. We should simply modify the judgment by deleting the unlawful sentence and replacing it with the sentence lawfully pronounced in open court before the jury was unlawfully recalled.

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