Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of March 18, 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.

In re Valliance Bank, No. 02-12-00255-CV (Mar. 21, 2013) (orig. proceeding) (op. on further en banc rehearing).: Held: The trial court's order reinstating the underlying lawsuit following dismissal for want of prosecution is void because the affidavit verifying the facts alleged within the motion to reinstate was not filed within thirty days of the trial court's order dismissing the case. Thus, the trial court's plenary power expired thirty days following the initial dismissal order.

Bekendam v. State, No. 02-10-00444-CR (Mar. 21, 2013) (en banc) (Meier, J., joined by Livingston, C.J., and McCoy and Gabriel, JJ.; Walker, J., dissents with opinion, joined by Dauphinot and Gardner, JJ.). [Note: both opinions at the same link]: Held: The trial court did not abuse its discretion by allowing the State's expert to testify that she detected trace levels of cocaine in Appellant's blood when using the Gas Chromatograph/Mass Spectrometer (GCMS) test, even though the trace amount fell below the Texas Department of Public Safety's policy regarding what its technicians may include on the department's toxicology reports. At a pretrial evidentiary hearing, the expert testified to her qualifications; to her utilization of the GCMS test; that this test is generally accepted in the scientific community; and that testimony concerning GCMS has been admitted in courts both in Texas and throughout the United States.

Dissent: The trial court abused its discretion by allowing the State's expert witness, a forensic scientist with the Texas Department of Public Safety (DPS) Crime Laboratory, to testify that Gas Chromatograph/Mass Spectrometer testing of Appellant's blood showed trace amounts of cocaine that were below the .05 mg/L reportable cut-off set by the DPS.