Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of March 27, 2006

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 can be accessed by clicking the cause number then clicking View HTML Version of Opinion.

Goodman v. State, No. 02-0004-413 (Mar. 30, 2006) (Gardner, J., joined by Cayce, C.J.; Walker, J., dissents with opinion).

Held: The trial court did not err by refusing to charge the jury on the lesser included offense of criminally negligent homicide because there is no evidence that Appellant was unaware of the risk of death surrounding his conduct. Additionally, no variance exists as the State presented evidence that the offense was committed in the manner that was alleged in the indictment, and the evidence is legally and factually sufficient to support Appellant’s conviction of manslaughter because the jury was rationally justified in finding Appellant acted recklessly.

Dissent: The trial court erred by refusing to submit the lesser included offense of criminally negligent homicide in the jury charge. Evaluating the evidence in the context of the entire record, there is some evidence that would permit the jury to rationally find that if Appellant is guilty, he is guilty only of criminally negligent homicide. There is some evidence that Appellant did not consciously disregard a substantial and unjustifiable risk, but instead only should have been aware of the risk surrounding his conduct but failed to perceive it.

Gibson v. Gibson, No. 02-04-00106-CV (Mar. 30, 2006) (op. on reh'g) (Cayce, C.J., joined by Holman and Gardner, JJ.).

Held: The trial court erred in awarding Appellant's interest in partnership property to Appellee. Only a spouse’s partnership interest is subject to division in a divorce; partnership property is not.

Johnson v. State, No. 02-0004-419 (Mar. 30, 2006) (Gardner, J., joined by Dauphinot and McCoy, JJ.).

Held: The trial court did not err in admitting an audiotape recording into evidence. The recording contained no evidence of an extraneous offense or bad act; therefore, the notice requirements of Texas Rule of Evidence 404(b) and Texas Code of Criminal Procedure article 38.37 were not implicated.

Kennedy v. State, No. 02-0002-376 (Mar. 30, 2006) (op. on reh'g en banc)(Dauphinot, J., joined by Livingston, Holman, Gardner, and Walker, JJ.; Cayce, C.J., and McCoy, J., concur without opinion).

Held: The trial court erred by admitting Appellant’s jail records during the punishment phase because they are inadmissible hearsay under rule 803(8)(B) of the Texas Rules of Evidence, but the error is harmless. The trial court did not err by admitting accomplice testimony of an extraneous offense at punishment because corroboration of accomplice testimony is not required at the punishment phase.

Barron v. Vanier, No. 02-0005-045 (Mar. 30, 2006) (op. on reh'g) (Dauphinot, J., joined by Cayce, C.J., and McCoy, J.).

Held: The trial court abused its discretion by denying Appellant’s motion for continuance to develop evidence to challenge Appellees’ special appearances.

Strickland v. State, No. 02-0004-557 (Mar. 30, 2006) (Livingston, J., joined by Cayce, C.J., and Gardner, J.).

Held: Penal code section 19.02(b)(3), the felony murder statute, and penal code section 49.08, the intoxication manslaughter statute, are not in pari materia; thus, the State could prosecute Appellant for felony murder instead of intoxication manslaughter when, in the course of committing felony DWI, appellant drove down the wrong side of the street and crashed into another car, killing the passenger.

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Updated: 14-Sep-2006