Second Court of Appeals
Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of August 29, 2016.
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.
Revell v. Morrison Supply Co., No. 02-15-00195-CV (Aug. 29, 2016) (Livingston, C.J., joined by Meier and Gabriel, JJ.).
Held: Under the plain and unqualified language of 11 U.S.C.A. § 349(b)(3) (West 2015), the dismissal of a bankruptcy case revests the bankruptcy estate’s property in the “entity in which such property was vested immediately before the commencement of the case” even if a debtor did not properly disclose the property during the bankruptcy. Because Appellant’s claim against Appellee revested in him upon the dismissal of his bankruptcy case, he has standing to bring the claim in this suit. To the extent that it conflicts with this holding, we overrule our decision in Kilpatrick v. Kilpatrick, 205 S.W.3d 690, 701–03 (Tex. App.—Fort Worth 2006, pet. denied).
Siddiq v. State, No. 02-15-00095-CR (Aug. 31, 2016) (Walker, J., joined by Meier, J.; Dauphinot, J., dissents with opinion.).
Held: The trial court did not err by determining that Siddiq’s recorded phone call from the booking desk at the Frisco jail did not violate the federal or state wiretap statutes or penal code section 16.02 because the law-enforcement exception to the wiretap statutes applied to Siddiq’s recorded call. The trial court also did not err by determining under the totality of the circumstances that the blood draw performed on Siddiq was performed in a reasonable manner as required by the Fourth Amendment. Based on these holdings, the trial court did not err by refusing to include in the jury charge a 38.23(a) instruction pertaining to the recorded phone call from the jail or to the blood draw.
Dissent: At a minimum, the trial court reversibly erred by denying Appellant’s requested article 38.23 instructions.
Geotcha v. State, Nos. 02-15-00326-CR, 02-15-00327-CR (Aug. 31, 2016) (Livingston, C.J., joined by Gardner, J.; Dauphinot, J., concurs and dissents with opinion).
Concurrence and Dissent: The outcome in cause number 02-15-00327-CR is correct, but in cause number 02-15-00326-CR, the trial court reversibly erred by denying Appellant’s confrontation and hearsay complaints regarding the admission of hearsay, testimonial evidence of the absent complainant, who the State had assured the trial court and jury would be available at trial. Appellant preserved his complaints by securing a ruling on his running objection.
Hernandez v. State, No. 02-15-00395-CR (Aug. 31, 2016) (Livingston, C.J., joined by Gardner, J.; Walker, J., dissents with opinion).
Held: Viewed in the light most favorable to the verdict, the evidence is sufficient to support Appellant’s conviction for aggravated robbery because it links a particular knife to him—therefore proving his use or exhibition of the knife—and shows that his acts were voluntary. Appellant does not challenge whether the knife, by its characteristics, qualified as a deadly weapon under the penal code, so we do not address that issue.
Dissent: The majority does not address whether the subject putty knife constituted a deadly weapon. Because Hernandez raised the deadly-weapon issue in his brief, particularly when considering our duty to liberally construe his brief, the majority should have addressed it.