Second Court of Appeals | Case Summaries

Franklin v. State, No. 02-0004-551 (Mar. 23, 2006) (McCoy, J., joined by Walker, J.; Dauphinot, J., dissents with opinion).: Held: The evidence was legally sufficient to support Appellant’s convictions for indecency with a child and sexual performance by a child. While acting as a teacher’s aid, Appellant turned the classroom lights off, locked the door, and said to the boys in the classroom, “let me show you how its done”; Appellant pulled a female student behind a bookshelf and had sex with her; and Appellant was seen with his pants pulled down, while moving his hips back and forth in a sexual manner. A rational trier of fact could have found that Appellant had the intent to arouse or gratify his sexual desire based on his conduct, remarks, and all of the surrounding circumstances. Additionally, a rational jury could have found that Appellant authorized the sexual conduct of the female student and himself as well as the sexual conduct of the female student with a male student in the classroom.; Dissent: The jury charge did not require unanimous verdicts on four counts for which Appellant was convicted, and the sexual performance by a child statute’s language allowed a bizarre result: Appellant was acquitted of causing the complainant’s sexual organ to contact his but convicted of authorizing actual or simulated sexual intercourse between them and of authorizing her sexual organ to contact his. We should abate this case for additional briefing on these issues or we should address them as unassigned error.
Dotson v. State, No. 02-0003-462, 02-03-00463-CR (Mar. 23, 2006) (Dauphinot, J., joined by Holman and Gardner, JJ.).: Held: In these revocation cases, when the indictments in the district clerk’s files of the underlying involuntary manslaughter convictions named the same complainant, the trial court reversibly erred almost nine years after the convictions by improperly replacing the indictment in trial cause number F-94-0113-E, appellate court cause number 2-03-463-CR, with a document naming a different complainant and by failing to dismiss that case on double jeopardy grounds.
Fantasy Ranch, Inc. v. City of Arlington, No. 02-0004-191 (Mar. 23, 2006) (Gardner, J., joined by Cayce, C.J., and Walker, J.).: Held: Appellant was the "nonconforming use" under the City of Arlington's ordinance regulating sexually-oriented businesses because it was the later-established of two sexually-oriented businesses operating within 1,000 feet of each another and the first-established business was continually operated in the same location since it was established, despite a change in that business's ownership.
Main Place v. Honaker, No. 02-0004-275 (Mar. 23, 2006) (Livingston, J., joined by Gardner and Walker, JJ.).: Held: The trial court’s refusal to make additional findings of fact and conclusions of law did not prevent Appellants from properly presenting their case on appeal. It was not necessary for the trial court to make separate damage findings as to each cause of action because the total amount of damages in the judgment could be upheld on Appellees’ DTPA claims, which provided them with the greatest theory of recovery. In addition, the evidence is legally and factually sufficient to support the trial court’s findings that Appellants, a home builder and its owner/employee, were 80% responsible for Appellees’ damages in connection with a slope failure and other soil movement under a home and property even though a primary cause of the slope failure and soil movement was a sprinkler leak caused by overtightening of the connection by the sprinkler subcontractor. Evidence showed that the fill on the property was unstable and that the property was situated on an unstable convergence of two geological formations. Further, Appellants misrepresented the stability of the property when appellees bought the home. The evidence was also legally and factually sufficient to show that these misrepresentations constituted a violation of at least one of the DTPA laundry list provisions but not to show that the violation was knowing.
JNC Partners Denton, LLC v. City of Denton, No. 02-0005-439 (Mar. 23, 2006) (Gardner, J., joined by McCoy, J.; Walker, J., dissents with opinion).: Held: The trial court did not abuse its discretion by denying Appellant's request for a temporary injunction pending arbitration. Appellant failed to show a probable right to compel arbitration under section 43.052 of the Texas Local Government Code because Appellee did not propose to separately annex two or more separate areas.; Dissent: Principles of statutory construction preclude reading the word “concurrent” into local government code subsection 43.052(i). The stipulated facts establish that the City proposed to and did separately annex areas---albeit not concurrently---in violation of section 43.052. Consequently, JNC has shown a probable right to compel arbitration under section 43.052(i).
Whitney v. State, No. 02-0004-311 (Mar. 23, 2006) (Walker, J., joined by Gardner, J.; Dauphinot, J., dissents with opinion).: Held: Appellant’s complaint that article 42.12, section 5 of the Texas Code of Criminal Procedure unconstitutionally deprives him of the right to appeal is dismissed because subsection 5(b) bars an appeal from the trial court’s determination to proceed with an adjudication of guilt and because the Texas Court of Criminal Appeals has interpreted the Texas Constitution as providing no absolute right to appellate review of criminal convictions. Additionally, Appellant failed to show that his trial counsel provided ineffective assistance by failing to have the court reporter transcribe the punishment hearing.; Dissent: The Texas Constitution provides a right to appellate review. To ensure that constitutional protections are honored in deferred adjudication cases, we must entertain claims regarding the constitutionality of a statute or constitutional violations in the statute’s application. We should therefore address Appellant’s challenge to article 42.12, section 5, not dismiss it.

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of March 20, 2006