Second Court of Appeals

Week of June 29, 2015 

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of June 29, 2015.

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.

Nussbaum v. Builders Bank, No. 02-14-00304-CV (July 2, 2015) (Walker, J., joined by Livingston, C.J.; Sudderth, J., dissents without opinion).

Held:  Nussbaum's failure to update a contractually-agreed-to address for service of process—so that service of process is attempted via the Texas long-arm statute at the old agreed-to address set forth in the contract—constitutes fault or negligence on the part of Nussbaum contributing to the entry of a default judgment against him. The summary-judgment evidence thus conclusively negated the third bill-of-review element on which Nussbaum bore the burden of proof—that the default judgment was rendered unmixed with his fault or negligence—and therefore, the trial court properly granted Builders Bank's motion for summary judgment in the bill-of-review proceeding.


Amos v. State, No. 02-13-00244-CR (July 2, 2015) (Gardner, J., joined by Dauphinot and Walker, JJ.).

Held:  In a cruelty-to-nonlivestock-animal case: (1) The admission of a testifying witness's recorded statement to the police was not error where another witness testified to its substance without objection; (2) the trial court did not err by denying Appellant's motion to quash the indictment where the indictment tracked the language of the criminal statute; (3) the trial court did not err by denying Appellant's six challenges for cause where the venire members verbally indicated they would not follow the law but later, by their silence, indicated the contrary, that is, that they would follow the law; (4) the trial court did not err by denying Appellant's objections to the charge where the charge tracked the statutory language, and (5) the trial court did not err by denying Appellant's motion to suppress the necropsy of the dog because Appellant had abandoned the dog's body when he left it with the veterinarian with a request to dispose of the dog's body by means of a communal cremation.


Harper v. State, No. 02-14-00189-CR (July 2, 2015) (Sudderth, J., joined by Livingston, C.J., and Walker, J.).

Held:  Appellant, who caused a multi-car collision and then shot and killed one of the Good Samaritans who attempted to rescue his two-year-old twins from the backseat of Appellant's mangled, smoking vehicle, was not entitled to jury instructions on necessity and sudden passion because he failed to show that he was entitled to these defensive instructions. None of the evidence showed that Appellant's shooting of the eighteen-year-old young man was immediately necessary to avoid imminent harm or that an ordinary, prudent person in his circumstances would have believed that it was, and none of the evidence showed that Appellant experienced "sudden passion" as defined by penal code section 19.02(a)(2), provocation by the Good Samaritan—who tried to do no more than the other would-be rescuers that Appellant did not shoot—or an adequate causal connection between the provocation, passion, and homicide. Appellant was not entitled to a mistrial on the prosecutor's statements when he failed to object to all but one of the statements complained about on appeal and the probable effect of the statement in the preserved complaint—in light of the trial court's instruction to disregard, the evidence, and the certainty of Appellant's conviction based on the undisputed facts of the case—could not have adversely affected Appellant's rights so as to present reversible error.


Daniel v. State, No. 02-14-00246-CR (July 2, 2015) (Livingston, C.J., joined by Walker and Sudderth, JJ.).

Held:  The evidence is sufficient to show that appellant's participation in an automobile race resulted in the death and bodily injury of separate victims because it proves that the death and injury were directly and proximately caused by the offense. The evidence is also sufficient to show that in the manner of its use, appellant's car qualified as a deadly weapon.


Matthews v. State, No. 02-14-00428-CR (July 2, 2015) (Dauphinot, J.; Livingston, C.J., and Sudderth, J., concur without opinion).

Held:  The trial court did not err by instructing the jury what "reasonable doubt" does not mean. We follow our precedent holding that such an instruction does not provide a definition of "reasonable doubt" to the jury.