Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of June 22, 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.

Wenger v. State, No. 02-07-00282-CR (June 25, 2009) (Gardner, J., joined by Dauphinot and Meier, JJ.).: Held: The evidence was legally and factually sufficient to prove Appellant knowingly and intentionally promoted child pornography by dissemination through the file-sharing peer-to-peer software Shareaza. Appellant “disseminated” the child pornography under penal code section 43.26(e) when he moved the image files into his Shareaza “shared” folder, making the files available for other Shareaza users to download. Appellant’s modification of the software’s default settings and his own admissions illustrated his intent to disseminate and his knowledge of the files’ contents.

Kaufman v. Islamic Soc’y of Arlington, Tex., No. 02-09-00023-CV (June 25, 2009) (Livingston, J., joined by Walker and Meier, JJ.).: Held: An internet author’s status as a member of the electronic media under civil practice and remedies code section 51.014(a)(6) should be adjudged by the same principles courts use to determine an author’s status under more traditional media. Therefore, the court has jurisdiction over Appellant’s interlocutory appeal from the trial court’s denial of his traditional motion for summary judgment on Appellees’ defamation claims, even though Appellant’s articles are published solely on the internet. The trial court erroneously denied Appellant’s motion, as Appellees’ defamation claims are barred as a matter of law because Appellant’s publication did not “concern” them.

Tex. Dep’t of Pub. Safety v. Axt, No. 02-08-00276-CV (June 25, 2009) (Walker, J., joined by Dauphinot, J.; Cayce, C.J., dissents with opinion). [Note: Both opinions are at the same link in one document.]: Held: Under the substantial evidence standard of review, the Department failed to satisfy its burden to demonstrate that an objective basis existed to stop Axt’s vehicle. The Department failed to point to evidence in the record that would lead a reasonable person to believe that Axt was committing criminal trespass by turning around in a public parking lot at 2:30 a.m. when the lot’s gated arms were raised. The officer could not have had a reasonable basis to believe that Axt was committing criminal trespass in light of his testimony and his police report indicating that the parking lot’s open gates allowed public access on the night in question. The trial court correctly found that the ALJ’s reasonable suspicion determination was not supported by substantial evidence.; Dissent: Under the substantial evidence standard of review, the Department met its burden of proving that reasonable suspicion existed to stop Axt’s vehicle and that probable cause existed to believe Axt was driving while intoxicated. Police officers observed Axt driving a motor vehicle in a restricted jail parking lot at around 2:30 a.m. Although the gate to the parking lot was malfunctioning and allowed entry and exit to any vehicle, the parking lot was marked with signs declaring the area to be for authorized personnel only. Axt’s late-night presence in a jail parking lot, where signs warned that the area was closed to the public, warranted the officers’ suspicion that Axt was criminally trespassing. Further, the officers could have reasonably inferred that Axt became intoxicated at the bar and then drove to the jail parking lot using public streets; although they did not specifically observe him driving on the public road before he entered the jail parking lot, there was no indication of any alcohol in the car, and Axt admitted to the officers on the scene that he had just come from a bar down the street.