Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of February 25, 2013

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.

Kennedy v. State, No. 02-11-00417-CR (Feb. 28, 2013) (Gabriel, J., joined by Walker, J.; Dauphinot, J., dissents with opinion). [Note: both opinions at the same link]: Facts: While attempting to shoplift a television set, Appellant injured a seriously ill store employee, who, largely as a result of his pre-existing condition, died in the hospital a few days later. A jury found Appellant guilty of aggravated robbery.

Held: (1) The record does not show that counsel was ineffective. (2) The jury reasonably could have concluded that Appellant used a deadly weapon. (3) Appellant's claim that the evidence is insufficient to show serious bodily injury fails because serious bodily injury was not an element of the offense for which Appellant was tried. The judgment is affirmed.

Dissent: To support a deadly weapon finding, the constitutions of both the United States and Texas require the State to prove beyond a reasonable doubt that an actor knew or should have known that he was using a deadly weapon in the commission of an offense. Here, no evidence shows any intent to cause death or serious bodily injury, no evidence shows that Appellant knew that the complainant, a stranger, had a serious liver disease, and no evidence shows that Appellant had any reason to know that using his hand to push himself away from the complainant would transform that hand into a deadly weapon. The evidence shows that the complainant's fall resulted in death only because of his seriously compromised liver.

Rushton v. State, No. 02-11-00419-CR (Feb. 28, 2013) (per curiam) (Dauphinot, J., dissents with published opinion). [Note: both opinions at the same link]: Dissent: The indictment, which alleges in one count that Appellant caused the complainant's sexual organ to contact his sexual organ and in another count that Appellant touched the complainant's vagina but did not allege what he touched it with, allowed the jury to convict Appellant of both offenses by finding only that he penetrated her vagina with his penis, a double jeopardy violation. Further, the majority follows the State in mistakenly using the term "vagina" for "vulva" and for "female sexual organ."

Whitney v. State, No. 02-11-00472-CR (Feb. 28, 2013) (Gabriel, J., joined by Livingston, C.J., and McCoy, J.).: Facts: Appellant was tried for murder after killing her daughter's boyfriend with a hammer. Appellant was indigent and granted court-appointed counsel. The trial court refused to allow co-counsel to actively assist court-appointed counsel during trial because he was not on the wheel for court-appointed attorneys.; Held: (1) The Sixth Amendment does not guarantee a right to co-counsel of one's choice to assist counsel appointed by the court. (2) The jury charge properly tracked a no-duty-to-retreat provision in the penal code. (3) The trial court properly denied a mistrial after sustaining a striking-over-the-shoulders-of-counsel objection and instructing the jury to disregard. The judgment is affirmed.