Second Court of Appeals | Case Summaries

Brumfield v. Ruyle, No. 02-06-00037-CV (Apr. 5, 2007) (McCoy, J., joined by Livingston and Dauphinot, JJ.).: Held: In a medical malpractice action under former article 4590i, the statutory requirement that a health care liability claimant must furnish an expert report to the physician against whom the claim is asserted is not satisfied by the mere fact that a copy of the expert report is attached to a pleading on file with the court or the fact that a copy of the report was forwarded to the physician by his co-defendant. Because the statute requires that the claimant shall furnish an expert report to the physician, a claimant cannot rely on these indirect methods to satisfy the statute's requirements.
Hess v. State, No. 02-06-00223-CR (Apr. 5, 2007) (McCoy, J., joined by Holman and Walker, JJ.).: Held: The trial court's instruction to the jury that it "may consider [Appellant's] refusal to submit to a breath test as evidence in this matter" constituted an improper comment on the weight of the evidence in violation of article 36.14 of the code of criminal procedure. However, the charge error was rendered harmless when assessed in light of the entire jury charge, the state of the evidence, and the respective arguments made by counsel in this case.
Lambeth v. State, No. 02-04-00140-CR (Apr. 5, 2007) (op. on reh'g en banc) (Cayce, C.J., joined by Holman, Gardner, and McCoy, JJ.; Walker, J., dissents with opinion, joined by Livingston and Dauphinot, JJ.).: Held: Appellant was stopped for speeding. As a result of routine questioning, the officers discovered, among other things, that his driver's license had expired and his vehicle was not registered. The officers' continued detention of Appellant after field sobriety tests were administered and until citations could be issued for these traffic violations was reasonable and necessary to effectuate the purpose of the initial stop, and the purpose of the stop was not complete until the citations were issued to Appellant. Because one of the officers smelled marijuana on Appellant before the purpose of the initial stop was complete, the officers possessed reasonable suspicion to prolong his detention until a canine search could be conducted.; Appellant's consent to search his vehicle, given while he was being read his rights, was voluntary.; Dissent: Because troopers had completed their traffic stop investigation and had resolved all of their reasonable suspicions concerning other offenses Appellant may have committed, their continued detention of Appellant to await arrival of a canine unit violated his Fourth Amendment rights. The trooper's testimony that he smelled marijuana, occurring twenty-four minutes into the stop and after resolution of all of the trooper's suspicions, cannot retroactively justify Appellant's continued detention.
In re E.M.N., No. 02-06-00319-CV (Apr. 5, 2007) (Holman, J., joined by Dauphinot and McCoy, JJ.).: Held: Retroactive application of section 161.001(1)(T), enacted in 2005, was not unconstitutional when applied to a mother's 2004 conviction for murder of the child's father. Following the reasoning in In re A.V., 113 S.W.3d 355 (Tex. 2003), the child was part of the public whose interest subsection (T) advances, and subsection (T)'s underlying purpose was not to add additional punishment to Appellant for murdering the child's father, but to safeguard the public welfare and advance the public interest by facilitating termination when one parent murders the other—an act previously used to support termination under subsection (E).

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of April 2, 2007