Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of January 15, 2007

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.

Keehn v. State, No. 02-06-00047-CR (Jan. 18, 2007) (Walker, J., joined by Livingston and McCoy, JJ.).: Held: Law enforcement officers had a lawful right to be on Appellant's driveway when they observed a propane tank in the back of a van that was parked on Appellant's driveway in front of his home. The officers had probable cause to believe that the tank with bluish-green discoloration contained anhydrous ammonia and was not an approved container for the transport of anhydrous ammonia; and accordingly that the tank was associated with criminal activity. Consequently, the plain view doctrine applied and the search of the van and subsequent seizure of the tank did not violate the Fourth Amendment of the United States Constitution or Article I, Section 9 of the Texas Constitution.
State v. Zascavage, No. 02-06-00126-CR (Jan. 18, 2007) (Livingston, J., joined by Dauphinot and Holman, JJ.).: Held: While educators stand in loco parentis under immunity cases, it is unclear whether they can be criminally punished for failing to prevent hazing. It is also unclear whether appellee, as a wrestling coach, is an "educator." For these reasons, section 37.152(a)(3) of the education code is unconstitutional on its face and as applied to Appellee.
Pichardo v. Big Diamond, Inc., No. 02-06-00079-CV (Jan. 18, 2007) (Walker, J., joined by Cayce, C.J., and McCoy, J.).: Held: In this gas and dash case, Appellee Big Diamond conclusively established that it did not own, operate, or control the gas station near which an injury occurred, and was therefore entitled to summary judgment. Summary judgment was also proper for Appellee Diamond Shamrock because it conclusively negated the foreseeability element of the Appellants' negligence claim by presenting a record that is devoid of any evidence showing that similar accidents had occurred on the property or in its immediate vicinity, that the Diamond Shamrock gas station was a frequent victim of gas and dashes, that the area was crime laden, or even that individuals committing a gas and dash frequently run red lights or drive recklessly.