Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of May 12, 2014

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.

Dalworth Restoration, Inc. v. Rife-Marshall, No. 02-12-00381-CV (May 15, 2014) (Livingston, C.J., joined by Gardner and Gabriel, JJ.).
Held:  The trial court erred by not applying a settlement credit under section 33.012(b) of the civil practice and remedies code. Appellant presented evidence of the existence and amount of a settlement, and appellee did not meet her burden, by presenting the settlement agreement, to show that the credit should not apply because the claims against appellant were separate from the settled claims.
Gaddy v. State, No. 02-09-00347-CR- Opinion , 02-09-00347-CR- Dissent (May 15, 2014) (op. on remand) (en banc) (Gabriel, J., joined by Livingston, C.J., Gardner, Walker, McCoy, and Meier, JJ.; Dauphinot, J., dissents with opinion).
Held:  Although the evidence was insufficient to show Appellant was twice previously convicted of DWI as required to sustain his conviction for felony DWI, the jury necessarily found every element necessary to convict Appellant of misdemeanor DWI in the course of convicting him of felony DWI. Therefore, recent precedent from the court of criminal appeals mandates that Appellant's conviction must be remanded to the trial court for reformation of the judgment to reflect a conviction for misdemeanor DWI and to conduct a punishment hearing.
Dissent:  The trial court could not have and should not have rendered a judgment of conviction of the lesser-included first-time misdemeanor DWI because an instruction on that lesser-included offense was neither requested nor given; consequently, we have no authority under rule of appellate procedure 43.2(c) to remand this case to the trial court with instructions to render that judgment. Instructing the trial court to convict Appellant of the lesser-included offense, or modifying the judgment ourselves, also violates the Ring/Apprendi line by usurping the jury's role as factfinder and depriving Appellant of his constitutional right to a jury trial. Additionally, in felony DWI trials, the Bowen-Thornton rule unfairly benefits the State, allowing the State to inform the jury that a defendant has two prior DWIs before asking the jury to find him guilty of the instant one. Finally, it is fundamentally unfair to apply this new judicially-created rule to a case tried by a jury several years ago in order to rescue the State from the consequences of its failed strategy.
Murkledove v. State, No. 02-12-00194-CR- Opinion , 02-12-00194-CR - Dissent (May 15, 2014) (Walker, J., joined by McCoy, J.; Dauphinot, J., dissents with opinion).
Held:  The trial court did not err in its instructions to the jury; any error in the trial court's failure to instruct the potential jurors pursuant to penal code section 12.31(b) was forfeited or, alternatively, was harmless; any error in the admission of Murkledov's written statements was harmless; and Murkledove's mandatory life sentence without parole does not constitute cruel and unusual punishment.
Dissent:  The trial court erred by merging the law of parties with the law of conspiracy in instructing the jury as required by Montoya. The Montoya court was incorrect in holding that section 7.02 is exclusively the law of parties. The legislature has not burdened the State with any requirement to prove prior planning, malice aforethought, any agreement, or premeditation to secure a conviction of a defendant as a party, and the courts have no authority to enlarge the State's burden of proof.

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