Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of February 18, 2008

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.

In re D.W., No. 2-06-191-CV (Feb. 19, 2008) (Gardner, J., joined by Livingston, Dauphinot, and Walker, JJ.; Cayce, C.J., dissents and concurs with opinion, joined by Holman, J.; McCoy, J., dissents and concurs with opinion). [Note: All three opinions are at the same link in one document.]: Held: Family code section 263.405(i), which provides that a court of appeals may not consider any issue not specifically presented to the trial court in a timely-filed statement of points for appeal under section 263.405(b) in a parental-rights termination case, violates the Texas Constitution's separation of powers clause and is, therefore, void because it infringes upon the appellate court's core, substantive power to consider issues that were otherwise preserved for review under the rules of appellate procedure.; Dissenting and Concurring Opinion (Cayce, C.J.): A reviewing court determines constitutional questions only when it cannot resolve the issues on nonconstitutional grounds. Appellant's only complaint concerning the trial court's action is that the trial court abused its discretion by denying her motion for an extension of the dismissal deadline. Because Appellant failed to make a record of the hearing on her motion to extend the deadline, the majority affirmed the trial court's ruling. Thus, the majority's opinion on the separation of powers issue is dicta.; Further, section 263.405(i) does not violate the separation of powers clause of the Texas Constitution. This court's power to review civil cases, including termination proceedings, is subject to "such restrictions and regulations as may be prescribed by law." Tex. Const. art. V, § 6(a). Section 263.405(i) is a proper exercise of the legislature's power to regulate and restrict such appeals. Whether court-made rules better serve the policy goals of the statute is a matter for the legislature to decide, not the courts; we may not refuse to follow the statute because we believe it fails to promote the legislature's objectives. Finally, unlike the criminal cases on which the majority relies, section 263.405(i) does not tell us how to perform our judicial function or how we must rule on issues brought before us.; Dissenting and Concurring Opinion (McCoy, J.): The dissent properly concludes that it is unnecessary to the disposition of this appeal to decide the question of whether section 263.405(i) violates the separation of powers clause. Therefore, neither the majority nor the dissent should have addressed the constitutional question.

Fenoglio v. State, Nos. 2-07-001-CR, 2-07-002-CR, 2-07-003-CR (Feb. 21, 2008) (Livingston, J., joined by Walker and McCoy, JJ.).: Held: The trial court did not err by denying Appellant's motion to suppress on Franks grounds; the trial court properly found that the complained-of statements in the affidavit were not false or made with reckless disregard for the truth. Appellant's conviction for possession of methamphetamine of at least four but less than two hundred grams was barred on double jeopardy grounds; therefore, Appellant was entitled to an acquittal as to that offense. Appellant's possession of methamphetamine in his truck and in his house constituted only one offense (possession of methamphetamine of four hundred or more grams) when, pursuant to a search and arrest warrant covering all of Appellant's residential property and acreage (including any vehicles found on the property), police (1) arrested Appellant at the entrance to his property after he had just driven onto the property in his truck, (2) immediately searched the truck and found methamphetamine, and (3) immediately thereafter searched the house and found methamphetamine.

Clement v. State, No. 2-06-435-CR (Feb. 21, 2008) (Livingston, J., joined by Dauphinot and Holman, JJ.).: Held: The evidence was legally and factually sufficient to support Appellant's conviction for resisting arrest or transport. In addition, the trial court did not err by charging the jury in the disjunctive because penal code section 38.03 describes only one offense—preventing or obstructing an authorized person from effectuating his or her duties—and identifies three different means by which it can be committed.

In re Pruitt, No. 2-06-438-CV (Feb. 21, 2008) (Holman, J., joined by Gardner and McCoy, JJ.).: Held: The trial court erred by granting Appellee's motion for summary judgment because there was evidence set forth in Appellant's response that raised a genuine issue of material fact that the execution and attestation of the will occurred at the same time and place and formed parts of the same transaction. Further, because the trial court erred by granting summary judgment, the trial court also erred by granting administration of the estate and appointing Appellee as administrator of the estate on the basis that the decedent failed to leave a lawful will.