Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of October 17, 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.

Sundance Minerals, L.P. v. Moore,   No. 02-10-00403-CV    (Oct. 20, 2011)   (Livingston, C.J., joined by Walker, J.; Gabriel, J., concurs and dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   The deed at issue reserved a one-half fraction of royalty to the grantors; accordingly, the trial court did not err by granting summary judgment for the Appellees, successors in interest to the grantors. Additionally, the evidence supporting the trial court's award of attorney's fees was not conclusory and thus was legally sufficient under the reasoning of Garcia v. Gomez, 319 S.W.3d 638 (Tex. 2010).

Concurrence and Dissent:   I agree the deed reserved a "fraction of" royalty. However, the affidavit supporting the award of attorney's fees was conclusory. I understand that the majority feels bound by the supreme court's ruling in Garcia. However, I agree with the dissents by Justice Jefferson and Justice Johnson that the majority's holding in Garcia is a significant departure from the Arthur Andersen factors.

Liberty Mut. Ins. Co. v. Adcock,   No. 02-11-00059-CV    (Oct. 20, 2011)   (McCoy, J., joined by Dauphinot, J., and Bleil, J. (Senior Justice, Retired, Sitting by Assignment)).

Held:   There is no express language in labor code section 408.161 that gives Appellant Division the right to revisit the issue of entitlement to lifetime income benefits whenever it chooses, and it has no implied right to review such entitlement after the initial administrative and appellate remedies have been exhausted.

Waller v. State,   No. 02-09-00373-CR    (Oct. 20, 2011)   (op. on reh'g) (Walker, J., joined by McCoy, J.; Dauphinot, J., concurs and dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   The evidence is sufficient to support Appellant's guilt as a party to both arson and felony murder, but the case is remanded for a new trial because the trial court abused its discretion by denying the challenges for cause of two veniremembers who could not consider the full range of punishment.

Concurrence and Dissent:   The State's motion for rehearing should be denied, but otherwise, the majority's resolution of Appellant's issues is correct. Because we remand for a new trial, I write only to point out that in this trial, (1) in attempting to provide a section 7.02(b) instruction, the trial court actually instructed the jury that they could convict Appellant as a party to the more serious offense if the jury found Appellant guilty only of section 15.02 conspiracy, an offense that is not a lesser included offense and for which he was not indicted; and (2) the trial court instructed the jury over Appellant's objection in a manner that allowed them to convict him both of arson causing Guerra's death and of felony murder causing Guerra's death in the course of arson, raising the issue whether a person may be convicted of both arson resulting in death and of felony murder, with arson being both the underlying felony and the act clearly dangerous to human life that caused the death.

Jarvis v. State,   No. 02-10-00331-CR    (Oct. 20, 2011)   (Gabriel, J., joined by Gardner, J.; Dauphinot, J., concurs and dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   By failing to bring either issue before the trial court by a proper objection or motion, Appellant failed to preserve his claims that the trial court violated his common-law right to allocution prior to sentencing as well as the provisions of code of criminal procedure article 42.07.

Concurrence and Dissent:  I disagree that Appellant failed to preserve his claims. I would overrule his issues because the trial court's inquiries whether there was anything else the defense wanted addressed provided the opportunity for allocution required by article 42.07.

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