Second Court of Appeals

Week of March 23, 2015 

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of March 23, 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.


CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass'n, Inc., No. 02-14-00236-CV (Mar. 26, 2015) (Walker, J., joined by Gabriel, J.; Meier, J., dissents with opinion).

Held:  Because a dismissal without prejudice means that the same claims may be refiled in an entirely new cause and because the plain language of section 150.002(e) of the Texas Civil Practice and Remedies Code authorizes a dismissal without prejudice, we reject CTL's contention that we should construe that provision as effectuating a dismissal with prejudice for subsequently refiled claims.

Dissent: By construing section 150.002(e) to allow a dismissal without prejudice, the majority improperly expands the statute's plain and unambiguous language beyond the intent of the legislature, disregards the context in which the legislature expressed its intent vis-a-vis the first-filed complaint requirement, and frustrates the statute's purpose of deterring and quickly ending nonmeritorious claims.


In re Guardianship of Hart, No. 02-14-00318-CV (Mar. 26, 2015) (per curiam).

Held:  In the absence of a final judgment, the appellate courts have no authority to review an interlocutory order denying a motion to recuse a statutory probate-court judge; thus, the court dismissed the appeal for want of jurisdiction.


Hammer v. State, No. 02-13-00480-CR (Mar. 26, 2015) (Dauphinot, J., joined by Gardner and Meier, JJ.).

Held:  Appellant preserved his disproportionality complaint in his motion for new trial. We do not compare the community supervision violations to the sentence in resolving a disproportionality complaint. Instead, we compare the gravity of the original offense to the severity of sentence imposed.


Thomas v. State, Nos. 02-13-00553-CR, 02-13-00554-CR (Mar. 26, 2015) (Dauphinot, J., joined by Meier and Gabriel, JJ.).

Held:  Any error in the trial court's refusing to strike a State witness's direct examination testimony because he invoked his Fifth Amendment privilege against self-incrimination was harmless when defense counsel still managed to get the evidence that he had defrauded the IRS before the jury. Additionally, the record did not show that a transcript was admitted into evidence; the trial court therefore did not abuse its discretion by admitting it or err by failing to give a limiting instruction regarding it. Finally, the trial court's instruction cured any harm from the improper jury argument, "Sweet deals, secret deals? I cannot speak for what kind of prosecutor [defense counsel] was when she was in this office, but I don't lie to juries," that appeared to be in response to a similar argument from the defense.