Second Court of Appeals
Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of December 27, 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.
Tarrant Reg’l Water Dist. v. Johnson, No. 02-16-00043-CV (Dec. 30, 2016) (Livingston, C.J.; Dauphinot, J., concurs without opinion; Sudderth, J., concurs and dissents with opinion).
Held: Regardless of whether Tarrant Regional Water District’s (TRWD’s) immunity from suit and liability is waived under section 101.021 of the Texas Tort Claims Act (TTCA), its immunity with regard to the Johnsons’ allegations of premises liability related to the kayak chute in Dam No. 2 on the Trinity River is reinstated under section 101.056 of the TTCA because those allegations relate to a discretionary design decision by TRWD. Therefore, the trial court erred by denying TRWD’s plea to the jurisdiction as to those claims. However, because their allegations regarding the existence and deepening of a scour hole immediately downstream of the dam––with a potential resulting boil effect making swimming difficult––do not relate to a discretionary design decision, the trial court did not err by denying the plea to the jurisdiction as to those claims.
Concurrence and Dissent: Because no one disputes that TRWD knew of the water flow rate, the slippery chute, and the scour hole, and there is some evidence in the record that TRWD knew about the boil effect, there is at least some evidence in this record that the deceased did not know of the alleged danger, and as Appellees alleged that the nebulous warning was tantamount to no warning at all, on these pleadings and this evidence, the trial court did not err by denying TRWD’s plea to the jurisdiction as to complaints regarding these four conditions.
Olivas v. State, No. 02-14-00412-CR (Dec. 30, 2016) (FitzGerald (Senior Justice, Retired, Sitting by Assignment), joined by Gardner, J.; Dauphinot, J., dissents with opinion).
Held: In this circumstantial evidence case, a rational factfinder could have found beyond a reasonable doubt that the appellant stabbed the mother to death and then, in the course of the same criminal episode, set fire either to the baby directly using gasoline or used gasoline to set a fire immediately around the baby’s bed. Furthermore, investigators did not violate appellant’s rights by obtaining cell tower records without a warrant, records which placed him near the victims’ apartment at the time of the murders. Moreover, the trial court did not abuse its discretion by admitting testimony that appellant had previously sought to obtain an unregistered handgun and silencer because this evidence tended to demonstrate that appellant intended and planned to commit murder.
Dissent: The cell tower evidence is junk science, and the State failed to prove all the elements of capital murder beyond a reasonable doubt.
Ex parte Shires, No. 02-16-00348-CR (Dec. 29, 2016) (Sudderth, J., joined by Gabriel, J.; Dauphinot, J., dissents with opinion).
Held: Article I, section 11b of the Texas constitution does not violate the due process clause of the United States Constitution. United States v. Salerno, 481 U.S. 739, 746–52, 107 S. Ct. 2095, 2101–104 (1987), upon which Appellant relies, does not purport to set the minimum standard for due process requirements in the context of pretrial bail proceedings. Rather, in reviewing the constitutionality of the federal Bail Reform Act, Salerno held that the statute’s requirement, that prior to denying bail a trial court must find by clear and convincing evidence that no condition of bail would reasonably assure the safety of any other person and the community, did not violate the defendant’s rights to due process.
Dissent: The trial court violated Appellant’s right to due process by allowing his pretrial incarceration without bail without first finding by clear and convincing evidence that (1) Appellant’s release on bond would pose a substantial risk of harm to the community and (2) no conditions of pretrial release, if imposed, would reasonably assure the safety of the community.