Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of February 21, 2011

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.

City of N. Richland Hills v. Friend, No. 02-09-00166-CV, (Feb. 24, 2011) (Gardner, J., joined by Livingston, C.J.; Dauphinot, J., dissents with opinion). [Note: Both opinions are at the same link in one document.]: Held: The trial court did not err by denying, in part, Appellant's plea to the jurisdiction, because Appellees' fifth amended petition, liberally construed in their favor, alleges a waiver of governmental immunity for injuries arising from use or misuse of tangible personal property based on the lack of an integral safety component and gross negligence by employees acting in response to an emergency situation. However, the trial court erred by failing to grant the remainder of Appellant's plea to the jurisdiction.; Dissent: Because we cannot determine from the pleadings whether the operation of the water park is a governmental or proprietary function and therefore whether Appellee is entitled to immunity in the first place, we cannot determine if Appellees needed to allege a waiver of immunity.

Roden v. State, No. 02-09-00171-CR (Feb. 24, 2011) (Gardner, J., joined by Livingston, C.J.; Dauphinot, J., concurs with opinion). [Note: Both opinions are at the same link in one document.]: Held: The trial court did not err by refusing to submit an accomplice-witness instruction. Further, the trial court did not conduct voir dire outside of Appellant's presence. The trial court called a single venire panel from which a jury in an unrelated case was to be chosen in the morning, and Appellant's jury was selected from the same panel in the afternoon. Appellant and his counsel were present and had a full opportunity to voir dire each panel member during the afternoon session.; Concurrence: Even though the practice of choosing multiple juries from a single venire panel has serious, fundamental flaws, Appellant, who was free on bail but did not attempt to attend the voir dire of the case preceding his or show on appeal that any juror hearing his case was otherwise disqualified, did not establish that the trial court abused its discretion by allowing more than one jury to be chosen from a single venire panel.

In re D.B., No. 02-09-00197-CV (Feb. 24, 2011) (Dauphinot, J., joined by Meier, J.; Walker, J., dissents with opinion). [Note: Both opinions are at the same link in one document.]

Held: The Office of the Attorney General of Texas did not preserve its ultimate, independent complaint that the trial court abused its discretion by setting Father's arrearage at $0. Raising a subordinate issue that required no preservation does not cure this procedural default.

Dissent: The Office of the Attorney General of Texas's issue--"Did the evidence show as a matter of law that [Father] owes more than $0 in arrears?"--is properly before this court. No request, objection, or motion is required to seek on appeal a new trial based on this issue following a bench trial. Accordingly, the dissent would address the merits of the OAG's issue.

Taylor v. Taylor, No. 02-09-00255-CV (Feb. 24, 2011) (op. on reh'g) (Gardner, J., joined by Livingston, C.J., and Walker, J.).: Held: The trial court abused its discretion by refusing to hear evidence concerning child support from the date of Appellant's original petition through the date of judgment. However, the trial court did not abuse its discretion by refusing to hear evidence concerning child support from the date of separation through the date of Appellant's original petition.

Orona v. State, No. 02-09-00182-CR (Feb. 24, 2011) (Walker, J., joined by Gabriel, J.; Dauphinot, J., dissents with opinion). [Note: Both opinions are at the same link in one document.]: Held: Sufficient evidence exists to sustain Orona's conviction for murder; the trial court did not err by denying Orona's requests that the jury charge include charges on criminally negligent homicide and assault causing bodily injury, nor did the court abuse its discretion by admitting certain testimony over Orona's confrontation and hearsay objections.; Dissent: The majority does not identify nonaccomplice evidence corroborating accomplice testimony of intentional and knowing murder and does not explain how the State can lawfully prove murder by accomplice statements that were not subjected to confrontation and cross-examination.

State v. Molder, No. 02-09-00385-CR (Feb. 24, 2011) (Livingston, C.J., joined by McCoy, J.; Meier, J., concurs with opinion). [Note: Both opinions are at the same link in one document.]: Held: The trial court did not err by granting Appellee's motion to suppress. The State contends that a Department of Public Safety (DPS) trooper lawfully inventoried the contents of Appellee's truck after his arrest. The evidence that the trial court suppressed, however, was found in a roped cloth bag, and the State did not present evidence concerning the scope of DPS's inventory policy to show that opening the bag, a closed container, was authorized under the policy. See Florida v. Wells, 495 U.S. 1, 4-5, 110 S. Ct. 1632, 1635 (1990).; Concurrence: The mere arrest of appellant did not authorize the seizure of his truck. Officers detained and arrested appellant approximately 100 feet from his truck. The trial court, which listened to the arresting officer's testimony and reviewed the photographs depicting where appellant was in relationship to his truck when he was arrested, found that there was no reasonable connection between appellant's arrest and his truck. No evidence existed that appellant's truck was used in the commission of any crime. Furthermore, his truck was legally parked in a private parking lot and the trial court specifically found that there was no evidence appellant's truck was impeding the flow of traffic. The majority's analysis and ruling concerning closed containers under the facts of this case is correct, but regardless of what DPS's policy is toward closed containers, an inventory of appellant's vehicle should have never occurred.

In re Frank Kent Motor Co., No. 02-10-00462-CV (Feb. 24, 2011) (Meier, J., joined by Livingston, C.J., and Gabriel, J.).: Held: The trial court clearly abused its discretion by denying Frank Kent's motion to strike Garcia's jury demand because Garcia, an at-will employee, failed to rebut the presumption that he executed the conspicuous jury waiver knowingly, intelligently, and voluntarily--Garcia's execution of what he believed to be a "take it or leave it" jury waiver did not render the waiver unenforceable for lack of voluntariness simply because Frank Kent presented it to him on a "take it or leave it" basis, and the facts contained in Garcia's affidavit do not support his argument that he overcame the presumption of a knowing and voluntary jury waiver by a showing of coercion.