Second Court of Appeals

Week of May 25, 2015 

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of May 25, 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.

Morgan v. State, No. 02-14-00231-CR (May 28, 2015) (Dauphinot, J., joined by Livingston, C.J., and Gardner, J.).

Held:  Because the evidence shows that Appellant lived with Complainant when he kicked the front door open and assaulted her, the evidence is insufficient to support a burglary conviction.

Even though burglary was charged via intent to commit assault, attempt to commit assault, and a completed assault, Appellant conceded at trial and in his brief on appeal that he is guilty of the lesser included offense of assault and requested that we modify the judgment to reflect an assault conviction. Further, the evidence is sufficient to support an assault conviction beyond a reasonable doubt, and assault is the highest-level lesser included offense available. In these circumstances, a new trial on guilt-innocence of assault is unnecessary before modifying the judgment to reflect an assault conviction.

Stillwell v. State, No. 02-14-00281-CR (May 28, 2015) (Sudderth, J., joined by Dauphinot and Gabriel, JJ.).

Held:  Because the inability to understand English is a challenge for cause, the juror was excludable rather than disabled, and therefore, once the juror was removed, agreement of the parties was required for the trial to proceed with the remaining eleven jurors.

O'Bryan v. State, No. 02-14-00313-CR (May 28, 2015) (Sudderth, J., joined by Gabriel, J.; Dauphinot, J., dissents with opinion).

Held: Because Texas Courts have not applied the collective knowledge doctrine prohibitively and because NCIC has received widespread acceptance as providing a sufficient basis for both reasonable suspicion and probable cause, NCIC was sufficient to establish reasonable suspicion despite the fact the information turned out to be erroneous.

Dissent: No reasonable suspicion supports the stop because the Denton police's knowledge that the car was not stolen and that the NCIC entry reporting it stolen was erroneous is imputed to the Northlake police.

Saho v. State, No. 02-14-00352-CR (May 28, 2015) (Dauphinot, J., joined by Walker and Sudderth, JJ.).

Held:  The trial court did not abuse its discretion by denying Appellant's motion for new trial based on the conclusory affidavit of the traditional practitioner in Cameroon, who was in this locale and gave Appellant a potion on the day of his DWI arrest and whose date of departure to Cameroon was not in evidence. The record did not suggest any barriers that would have prevented Appellant's taking a pretrial deposition of the practitioner under article 39.02 of the code of criminal procedure.