Second Court of Appeals | Case Summaries

Smith v. McCarthy , No. 02-0005-202 (Mar. 16, 2006) (Dauphinot, J., joined by Walker and McCoy, JJ.).: Held: The trial court did not abuse its discretion by denying attorney’s fees to the Smiths, and the trial court properly granted McCarthy’s motion for summary judgment holding that Security Union did not have a duty to defend the Smiths in the underlying suit because McCarthy alleged a cause of action excluded from coverage by the policy’s parties-in-possession exception.
King v. State, No. 02-0004-515 (Mar. 16, 2006) (Walker, J., joined by Livingston and Gardner, JJ.).: Held: Appellant was charged with murder and tampering with evidence, a charge stemming from the transportation and disposal of the victim’s body. The trial court granted Appellant’s motion to sever the prosecution of the two charges. In Appellant’s trial on the murder charge, the trial court did not err by admitting evidence of the events occurring after the murder. The evidence was same transaction contextual evidence, its probative value was not substantially outweighed by its prejudicial effect, and the admission of this evidence did not effectively deny Appellant her right to severance. The trial court also did not err by admitting a co-conspirator’s statements because they were not testimonial and because they fell within exceptions to the hearsay rule. The trial court did not err by refusing to instruct the jury that a testifying witness, who only participated in concealing the murder, was an accomplice witness because she was not an accomplice to the murder for which Appellant was on trial. Finally, Appellant was not harmed by the trial court’s failure to include in its duress application paragraph the name of the person who allegedly placed Appellant under duress because the jury could not have been confused.
Bautista v. State , No. 02-0004-527 (Mar. 16, 2006) (Holman, J., joined by McCoy, J., joined by Dauphinot and Gardner, JJ.).: Held: The trial court did not abuse its discretion by allowing an outcry witness to testify because, although Appellant claimed that a summary of the witness’s statement had not been provided to him prior to trial, a summary of that witness’s testimony was in fact attached to the notice of intent to use outcry witness testimony that was included in the record and that was sent to Appellant. The trial court did not abuse its discretion in allowing a nurse to testify under Texas Rule of Evidence 803(4) concerning statements made to her by the complainant during the physical exam, even though she is not a licensed physician.
Herbert v. City of Forest Hill , No. 02-0005-326 (Mar. 16, 2006) (Dauphinot, J., joined by Cayce, C.J., and McCoy, J.).: Held: Because there was no evidence in the summary judgment record of a pretext for discrimination and no evidence that Appellee’s actions were causally related to Appellant’s exercise of a protected activity, Appellee did not engage in unlawful employment practices.
Schuchmann v. Schuchmann, No. 02-0004-276 (Mar. 16, 2006) (Gardner, J., joined by Livingston and Holman, JJ.).: Held: The Denton County probate court lacked jurisdiction over a postdivorce action to divide assets undivided by a divorce decree rendered by a Dallas County district court. The assets at issue in the postdivorce action were unrelated to the inter vivos trusts at issue in probate court litigation between the parties, and neither the Texas Probate Code nor the Texas Family Code provides a basis for maintaining jurisdiction in the probate court.

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of March 13, 2006