Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of May 27, 2013

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.

Centerplace Props., Ltd. v. Columbia Med. Ctr. of Lewisville Subsidiary, L.P. , No. 02-11-00049-CV  (May 30, 2013) (Gardner, J., joined by Walker and Meier, JJ.).

Held: Landlord did not violate property code section 93.002(c) by only making written demand that the tenant no longer occupy the premises, but legally and factually sufficient evidence supported the trial court's determination that the landlord breached the lease by failing to release tenant improvement funds. Tenant should recover attorney's fees and costs as the prevailing party, but landlord is not entitled to recovery of attorneys fees and costs under attorney's fee provision in parties' contract.

In re Mizer, No. 02-13-00084-CV  (May 30, 2013) (McCoy, J., joined by Livingston, C.J., and Dauphinot, J.).

Held: The county criminal court clearly abused its discretion by dismissing Relator's appeal from his conviction in a municipal court of record on the ground that Relator failed to file a brief in the county criminal court because the government code does not permit dismissal of an appeal on this ground. Further, Relator had no remedy on appeal as the county criminal court had not issued an appealable order.

Howard v. State, No. 02-12-00187-CR  (May 30, 2013) (order denying motion for reh'g en banc) (Dauphinot, J., dissents with opinion).

Dissent: Officer Clements was dispatched to investigate the crime of driving while intoxicated (DWI). He was not engaged in community caretaking. When he approached Appellant, he determined that she had alcohol on her breath; was thick-tongued; had glassy, heavy eyes; and was leaning on a truck. He never saw her behind the wheel. When Clements asked her to move away from the truck, she swayed and was unsteady on her feet. At that point, Clements had probable cause to believe that Appellant was guilty of public intoxication, probable cause to arrest her for public intoxication, and authority under chapter 14 of the code of criminal procedure to arrest her for public intoxication despite the absence of an arrest warrant.

But Clements had no authority to arrest her for DWI because chapter 14 of the code of criminal procedure does not authorize a warrantless arrest for a misdemeanor DWI committed outside the police officer's presence unless it could be classified as a breach of the peace, which is not applicable here.

Clements's public intoxication investigation was complete, and he was gathering evidence for a DWI prosecution when he questioned Appellant. She acquiesced to his show of authority. Under Dowthitt v. State and Miranda v. Arizona, Appellant was entitled to be warned that she did not have to answer Clements's questions.

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