Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of September 22, 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 (PDF version) can be accessed by clicking the cause number.

Dunkelberg v. State, No. 02-07-00013-CR (Oct. 2, 2008) (Dauphinot, J., joined by Cayce, C.J., and Livingston, J.).: Held: The trial court did not err by denying Appellant's motion to suppress because the officer testified that he believed that Appellant might be driving while intoxicated given the manner in which Appellant operated the vehicle. When the officer saw Appellant at around 2:00 a.m., Appellant's vehicle was weaving from one set of reflectors on the road to the other set, and his vehicle crossed the lane divider at least once. Weaving is one of sixteen clues of intoxication.

Wichita County v. Bonnin, No. 02-07-00156-CV (Oct. 2, 2008) (Livingston, J., joined by Gardner and Walker, JJ.) (op. on reh'g).: Held: In this declaratory judgment suit, the trial court erred by granting Appellee's motion for summary judgment, and denying Appellants', because Appellants did not abuse their discretion by refusing to implement provisions of a petition related to sheriff's department employees' salaries that were not submitted to voters on the ballot. Section 152.072 of the local government code mandates that the only issue that can be submitted to the voters of a county regarding the salaries of members of the sheriff's department is whether one proposed minimum salary for each position within the department, i.e., a floor, should be adopted, precluding the submission of any other salary-related issue to the voters. The omitted provisions included items other than a "proposed minimum salary."

GuideOne Lloyds Ins. Co. v. First Baptist Church of Bedford, No. 02-07-00176-CV (Oct. 2, 2008) (op. on reh'g) (Holman, J., joined by Walker, J.; Cayce, C.J., concurs without opinion).: Held: The trial court erred by disregarding the effect of the jury's finding that Appellant made an unconditional tender of $155,000 to Appellee on July 7, 2005, because there is some evidence to support the finding. The trial court did not err by failing to calculate prejudgment interest on Appellee's breach of contract and article 21.21 awards pursuant to section 302.002 of the finance code, nor did it abuse its discretion by denying Appellant's requested jury charge questions and instructions.

Smith v. Henson, No. 02-07-00151-CV (Oct. 2, 2008) (Dauphinot, J., joined by Holman, J.; Walker, J., dissents with opinion). [Note: Both opinions are at the same link in one document.]: Held: Because Appellant did not object when the trial court instructed the jury to disregard all testimony about worker's compensation, she did not preserve her complaints that the trial court improperly excluded material evidence and improperly commented on the evidence.; Dissent: Once the trial court has made a ruling on the record, no authority exists for the proposition that trial counsel must object to or note his exception to the trial court's ruling, i.e., essentially argue with the trial court about an already-made ruling, to preserve error. In fact, the rules of appellate procedure expressly disavow the necessity of objecting or excepting to a trial court ruling in order to preserve error. Therefore, the dissent would address the merits of Smith's appellate complaints concerning the trial court's ruling.