Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of February 9, 2009

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.

Brown v. State, No. 02-08-00041-CR (Feb. 12, 2009) (McCoy, J., joined by Livingston, J.; Dauphinot, J., concurs and dissents with opinion). [Note: Both opinions are at the same link in one document.]: Held: Involuntary intoxication is not a defense to DWI because the legislature and the court of criminal appeals have declined to include a culpable mental state in that offense. Torres v. State, 585 S.W.2d 746 (Tex. Crim. App. 1979), in which the court of criminal appeals held that involuntary intoxication is a defense to criminal culpability when it is shown that (1) the accused has exercised no independent judgment or volition in taking the intoxicant and (2) as a result of his intoxication, he did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated, does not apply to the offense of DWI.; Concurrence and Dissent: Involuntary intoxication is not a defense to DWI in this case, but the majority’s overbroad holding that a DWI defendant may never raise the defense of involuntary intoxication conflicts with the requirements that a person must voluntarily operate a vehicle and voluntarily partake of intoxicants to commit DWI.

Salinas v. State, No. 02-08-00135-CR (Feb. 12, 2009) (Dauphinot, J., joined by Cayce, C.J., and Walker, J.).: Held: The trial court had no duty to sua sponte withdraw Appellant’s guilty plea, and Appellant forfeited his complaint on appeal by failing to raise it in the trial court.

Collini v. Pustejovsky, No. 02-07-00005-CV (Feb. 12, 2009) (Livingston, J., joined by Gardner, J.; Dauphinot, J., concurs and dissents with opinion). [Note: Both opinions are at the same link in one document.]: Held: In this health care liability case, the trial court abused its discretion by ruling that the expert report Appellee served upon Appellant satisfies the requirements of section 74.351 of the civil practice and remedies code. The report, on its face, does not demonstrate that the reporting doctor is qualified to give an opinion on causation, and the report also does not contain an adequate explanation of causation. However, the trial court should have an opportunity to consider granting Appellee a thirty-day extension to file an adequate expert report.; Concurrence and Dissent: The expert report provided by Appellee does not demonstrate the reporting doctor’s qualifications to give an opinion on causation, but the majority’s opinion should explicitly limit the holding to this case.

In re Z.C., No. 02-08-00025-CV (Feb. 12, 2009) (per curiam) (Cayce, C.J., Livingston, J., and Dixon W. Holman, J. (Senior Justice, Retired, Sitting by Assignment)).: Held: The trial court terminated the parental rights of two fathers of children by the same woman. The evidence was legally and factually sufficient to support the trial court’s endangerment and best interest findings as to Father #1 because he was an admitted methamphetamine addict who used drugs while the trial was in progress, was homeless for a period while the case was pending, kept the children for months during the school year without enrolling them, and threatened to burn down his mother’s house when his wife placed the children there. The evidence was also legally and factually sufficient to support the trial court’s finding under family code section 161.001(1)(Q) and its best interest finding as to Father #2, who at age forty had spent only two to two-and-a-half years out of prison since age eighteen, because he was currently in prison and there was no evidence that he would be released not less than two years from the date of filing the termination petition or evidence of a viable alternative person to care for the child until his release.