Second Court of Appeals | Case Summaries

In re Risley, No. 02-0006-017 (Apr. 3, 2006) (orig. proceeding) (Livingston, J., joined by Dauphinot and Holman, JJ.).: Held: Relator is entitled to mandamus relief to compel the trial court to pronounce sentence on him in his presence in accordance with article 42.03, section 1(a) of the code of criminal procedure.
Patterson v. McMickle , No. 02-0005-302 (Apr. 6, 2006) (Holman, J., joined by Cayce, C.J., and Livingston, J.).: Held: The trial court properly granted Appellees’ motion for summary judgment. Under these facts, an expert hired by an attorney for a limited purpose owes no duty to a next friend previously displaced by a guardian ad litem pursuant to rule 173 of the Texas Rules of Civil Procedure because of an apparent conflict of interest between the attorney’s client and the next friend.
Wilen v. Falkenstein , No. 02-0004-315 (Apr. 6, 2006) (Walker, J., joined by Dauphinot and McCoy, JJ.).: Held: The court's charge correctly defined "trespass," and the jury's affirmative trespass finding is supported by legally and factually sufficient evidence. The jury's damage awards are likewise supported by the evidence. No legal basis exists, however, for an award of attorney's fees to Appellee; the judgment is modified to delete the attorney's fees award and affirmed as modified.
Omega v. Torres , No. 02-0003-106 (Apr. 6, 2006) (op. on reh'g) (Gardner, J., joined by Cayce, C.J., and Walker, J.).: Held: The trial court erred by failing to submit the negligence of a "settling person" to the jury and by charging the jury with negligence per se based on certain provisions of the Federal Motor Carrier Safety Regulations. The trial court did not err by refusing to instruct the jury on new and independent cause. The trial court did not err by granting summary judgment in favor of Dowdy-Ferry Sand and Gravel Company on Torres's vicarious liability claims.
Heil Co. v. Polar Inc. , No. 02-0005-101 (Apr. 6, 2006) (Livingston, J., joined by Gardner and Walker, JJ.).: Held: In a breach of a stock purchase agreement case, the trial court did not err by granting Polar Corporation’s motion for summary judgment and by denying The Heil Company’s motion for summary judgment because Polar did not breach any warranty under the stock purchase agreement that was not time barred; the indemnification procedures in the agreement were never triggered; Heil did not suffer any independent injury apart from the subject matter of the agreement; Heil is not entitled to declaratory relief; and the trial court could have determined Polar’s entitlement to summary judgment without considering the objectionable portions of its summary judgment evidence. The trial court did, however, err by granting summary judgment in favor of Frank because there is no evidence that Frank joined in Polar’s motion for summary judgment.
Emenhiser v. State, No. 02-0004-248 (Apr. 6, 2006) (Gardner, J., joined by Walker and McCoy, JJ.).: Held: The trial court did not violate Appellant's Sixth Amendment right to compulsory process by quashing a subpoena served by Appellant on the day of trial; the trial court did not err by excluding the testimony of a witness who violated "the Rule"; the trial court did not err by refusing to suppress evidence seized under a search warrant; the trial court did not err by denying Appellant's challenge for cause to a vacillating veniremember; and the evidence was legally and factually sufficient to support Appellant's conviction for sexual performance by a child and indecency with a child.
Klein v. State, No. 02-0003-390 (Apr. 6, 2006) (op. on PDR) (McCoy, J., joined by Livingston, J.; Dauphinot, J., dissents with opinion).: Held: The evidence was legally insufficient to support Appellant’s convictions for six of eight counts of aggravated sexual assault of a child because the record was void of any specific evidence of separate incidents constituting the commission of additional offenses. The trial court also erred when it allowed the State to offer the testimony of the complainant knowing that she would likely recant on the stand and then offered testimony from two witnesses regarding the victim’s earlier statements affirming the assaults. The two witnesses’ testimony was inadmissible impeachment evidence of the complainant. But, the trial court did not err by admitting the teacher’s testimony as an outcry witness because the complainant described the offense to her. The complainant told the teacher that Appellant “messe[d] with [her],” most nights and touched her between her legs with his fingers and tongue.; Dissent: The trial court erred by admitting the teacher’s testimony as an outcry because the complainant did not describe the offenses to her. The CPS investigator received the first discernible outcry from the complainant. Upon retrial, the State should be allowed to designate the investigator as the outcry witness if the trial court determines that the outcry is reliable.
Stewart v. State, No. 02-0005-246 (Apr. 6, 2006) (Dauphinot, J., joined by McCoy, J.; Walker, J., dissents with opinion).: Held: While the evidence in this burglary case may be sufficient to show that the serrated steak knife was capable of causing serious bodily injury or death, there is no evidence that in the manner of its use or intended use it was capable of causing such injury when the evidence showed that Appellant covered the complainant’s eyes with a pillowcase and instructed her to keep her eyes covered, she then heard him get a knife and peeked to see that it was a steak knife with a serrated edge, he never threatened her or tried to hurt her with the knife, he did not have the knife when he was apprehended, and there was no evidence that he walked through the house armed with the knife.; Dissent: The evidence is legally sufficient to support the jury’s deadly weapon finding. The jury could reasonably infer from the evidence that the knife was capable of causing death or serious bodily injury in its manner of use or intended use when Appellant entered the home, put a pillowcase over the complainant’s head, tightly grabbed her hand, immediately led her to the kitchen—where she peeked out of the pillow case hood and saw Appellant grab a serrated steak knife—and took her through the house demanding money. The jury could also reasonably infer that Appellant led the complainant to the kitchen in order to obtain a knife to use in facilitating the offense of stealing items and that consequently Appellant “used” the knife.

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of April 3, 2006