Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of November 9, 2015.

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.

Reyes v. State, No. 02-13-00563-CR (Nov. 12, 2015) (Gardner, J., joined by Meier, J.; Gabriel, J., concurs without opinion).

Held:  Appellant was convicted of murdering her husband.  On appeal, the court held that (1) the jury finding against Appellant's affirmative defense of insanity was not against the great weight and preponderance of the evidence; (2) the evidence was sufficient to prove Appellant had the requisite mens rea notwithstanding a history of mental illness; (3) the probative value of an audiotape of the offense was not substantially outweighed by the danger of unfair prejudice, so the trial court did not err by admitting the audiotape; and (4) the trial court did not err by denying Appellant's motion for mistrial based upon the prosecutor's alleged direct comment on her right not to testify because the prosecutor's comment was not directed at her failure to testify but, instead, at her outbursts during his final arguments.  A defendant's outbursts during trial are no different than other evidence offered at trial, and a prosecutor may properly, within reason, comment on the defendant's outbursts.

Gamino v. State, No. 02-14-00356-CR (Nov. 12, 2015) (Gardner, J., joined by Walker and Meier, JJ.).

Held:  The trial court committed reversible error by not submitting a self-defense instruction under section 9.31 of the Texas Penal Code.  Appellant was charged with aggravated assault with a deadly weapon, a gun.  Appellant admitted threatening the complainant with a gun; however, Appellant testified that he used the gun only to discourage the complainant and two other men from attacking him and his girlfriend.  Under section 9.04 of the Texas Penal Code, Appellant's use of the deadly weapon was not the use of deadly force but was, instead, only the use of force, which meant that he was entitled to a self-defense instruction under section 9.31.