Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of December 5, 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.

 

Durant v. Anderson, No. 02-14-00283-CV (Dec. 8, 2016) (Gardner, J., dissents from Sept. 8, 2016 Order Denying Motion for Rehearing and for En Banc Reconsideration).

Dissent:  This court erred by reversing the judgment on the verdict for Anderson based on his supposed failure to secure a finding of an “enforceable contract” as an essential element of his cause of action for fraudulent inducement and by holding that we could not “infer” such a finding in favor of the judgment.  Based upon the supreme court’s holding in Zorrilla v. Aypco Construction II, LLC, 469 S.W.3d 143 (Tex. 2015), Texas Rule of Civil Procedure 279, and the correct application of the legal and factual sufficiency standards of review, this court should have affirmed the judgment in favor of Anderson for his fraud damages based on the jury’s verdict.  Because a majority of the panel denied Anderson’s motion for rehearing and a majority of this court denied Anderson’s motion for en banc reconsideration, I dissent.

 

Tex. Workforce Comm’n v. Wichita Cty., No. 02-15-00215-CV (Dec. 8, 2016) (Livingston, C.J., joined by Walker and Meier, JJ.).

Held:  Under settled rules of statutory construction, an employee who takes leave under the federal Family and Medical Leave Act—which gives certain protections to individuals who are employed—may not simultaneously obtain unemployment compensation under the Texas Labor Code.

  

Johnson v. State, No. 02-15-00357-CR (Dec. 8, 2016) (Dauphinot, J., joined by Gardner, J.; Livingston, C.J., dissents with opinion).

Held:  The evidence is insufficient to support Appellant’s conviction on Count One because no evidence showed that he possessed, appropriated, or exercised control over the money represented by the cashier’s check made out to the funeral home or that he was guilty as a party.  The evidence is insufficient to support his conviction on Count Two because no evidence showed that he intended not to perform when he took the complainants’ money.

Dissent:  Under a proper application of evidentiary sufficiency principles, the evidence is sufficient to sustain Appellant’s convictions for theft.  Viewing the circumstantial evidence in the light most favorable to the jury’s findings of Appellant’s guilt and deferring to the jury’s implicit resolution of conflicting inferences, the jury could have reasonably determined that he unlawfully appropriated a cashier’s check and the money it represented by exercising control over it either for his own benefit or for the benefit of a business he substantially managed and controlled.  The jury could have also reasonably found that Appellant intended to unlawfully deprive the complainants of their property at the moment he received it.

 

Lindemann Props., Ltd. v. Campbell, No. 02-15-00392-CV (Dec. 8, 2016) (Meier, J., joined by Sudderth, J.; Walker, J., dissents with opinion).

Held:  Campbell’s easement for a radio transmission tower did not terminate when he removed the original tower and replaced it with a new one because the term “maintaining,” as expressly used in the easement contract, is broad enough to include the right to replace the tower when necessary, and the evidence is sufficient to show that replacement was necessary, and because the new tower did not exceed the easement’s scope.

Dissent:  By its express terms, the easement authorized the installation of a single radio transmission tower and terminated if the tower was abandoned or removed.  Because a second bigger, taller, and wider radio transmission tower was installed, and the original tower was dismantled and destroyed, the trial court erred by declaring that the easement had not terminated.  The construction of the second radio transmission tower cannot be construed as maintenance of the original destroyed tower.

 

King v. State, No. 02-15-00472-CR (Dec. 8, 2016) (Walker, J., joined by Meier, J.; Sudderth, J., concurs without opinion).

Held:  The traffic stop was not improperly extended when the officer asked for, and was given, King’s consent to the pat-down.  While the driver had been placed under arrest at the time that King, a passenger, consented to the pat-down, the officers were waiting for a tow truck to impound the vehicle.  The impoundment of the vehicle was a task tied to the traffic infraction, and as the officers still had need to control the scene until the tow truck arrived, the stop was not improperly extended when the officer asked King for his consent to the pat-down.