Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of August 16, 2010

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.

Hurd v. State,   No. 02-09-00226-CR    (Aug. 19, 2010)   (Per Curiam).

Held:   The evidence is factually sufficient to establish the aggravating element of Appellant's conviction for aggravated assault on a public servant, and the trial court did not err by including an affirmative deadly weapon finding in the judgment. However, the judgment is reformed to identify the deadly weapon as a shank, not a firearm.

Sutton v. State,   No. 02-09-00120-CR    (Aug. 19, 2010)   (Meier, J., joined by McCoy, J.; Dauphinot, J., dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   The evidence is legally and factually sufficient to support Appellant's conviction for unlawful possession of a firearm.

Dissent:   The majority has failed to address these essential issues: (1) whether Appellant's knowledge, if any, that another person in the house had a firearm in his bedroom is sufficient evidence that Appellant exercised care, custody, and control over the firearm; (2) whether a threat to use a gun constitutes the exercise of care, custody, and control over a firearm; (3) whether the threat is evidence that Appellant knew that that specific firearm was located in a place to which she had access; and (4) whether obeying police officers' orders to sit down in someone else's room by sitting on a bed where officers later found a firearm is evidence that Appellant exercised care, custody, or control over that firearm or that she knew the firearm was located under the mattress when the firearm was not visible until officers searched under the mattress.

Hartsock v. State,   No. 02-09-00305-CR    (Aug. 19, 2010)   (Gardner, J., joined by McCoy and Meier, JJ.).

Held:   Trial court did not abuse its discretion in admitting a DVD featuring two videos, one showing an individual's eyes without horizontal gaze nystagmus (HGN) and one showing an individual's eyes with HGN, solely for demonstrative purposes. The DVD was not used as direct or substantive evidence, nor as scientific proof of the defendant's intoxication, but to aid the jury in understanding what a person's eyes look like when the individual has HGN. In addition, the judge specifically instructed the jury that the DVD did not show defendant's eyes and that the DVD was only admitted to aid the jury in understanding what the police officer believed he observed upon conducting an HGN test on the defendant.

Cobb v. Caye Publ'g Group, Inc.,    No. 02-09-00426-CV    (Aug. 19, 2010)   (Dauphinot, J., joined by Livingston, C.J., and McCoy, J.).

Held:   A reasonable geographical limitation of a covenant not to compete in an employment agreement did not include areas targeted by the employer for future expansion when the employee had never worked for the employer in those areas; the employer had never operated in those areas, taken any definitive action to begin preparing to operate in those areas, or cultivated any goodwill in those areas; and the employer had shown nothing more than a potential business interest in the area targeted for future expansion.

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