Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of November 19, 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.

Kelly v. Hinson, No. 02-12-00058-CV  (Nov. 21, 2012)   (Walker, J., joined by Gardner, J.; McCoy, J., dissents with opinion).  [Note: both opinions at the same link.]

Held: The trial court had a ministerial duty to set Appellants' motion for arbitration for a hearing and to rule on it.

Dissent: The trial court did not abuse its discretion when Appellants repeatedly failed to request a hearing on their motion according to the trial court's instructions.

City of Watauga v. Gordon, No. 02-12-00221-CV  (Nov. 21, 2012)   (Walker, J., joined by Dauphinot and Gabriel, JJ.).

Held: Because Gordon pleaded facts supporting his claim that the police officers' negligent use of tangible personal property caused his injuries and did not plead facts that would support an intentional tort, and because the jurisdictional evidence presented by the City of Watauga—consisting of only the two affidavits by the police officers who handcuffed Gordon—implicated the merits of Gordon's negligent-use-of-tangible-personal-property claim and, at most, established a fact issue on whether the officers negligently applied the handcuffs to Gordon, the trial court properly denied the City's plea to the jurisdiction.

Rhyne v. State, No. 02-11-00410-CR   (Nov. 21, 2012)   (Gabriel, J., joined by Dauphinot and Walker, JJ.).

Facts: The arresting officer, who was the sole witness in this breath-test DWI case, referred numerous questions about the intoxilyzer to a technical supervisor who did not testify, and he testified that the intoxilyzer was working properly because otherwise it would have printed out an invalid result. The State argued at closing that the breath-test evidence was the "best evidence" that Appellant was intoxicated.

Held: The trial court abused its discretion by admitting the breath-test results over objection that the State failed to lay the proper predicate because no reasonable view of the record supports the trial court's conclusion that the intoxilyzer had been properly maintained and was properly operating when Appellant gave a breath sample. And, because the record gives no fair assurance that the error did not affect the jury's deliberations or had but a slight effect, the error affected Appellant's substantial rights. The judgment is reversed.

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