Second Court of Appeals
Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of July 11, 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.
In re T.B., No. 02-16-00006-CV (July 14, 2016) (Walker, J., joined by Meier and Sudderth, JJ.).
Held: Under the unique facts presented here, we hold that the Florida court’s failure to communicate with the trial court in Texas and failure to rule on Father’s motion requesting that the Florida court assert its continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act constituted an implied determination by the Florida court to decline to exercise its home-state jurisdiction and an implied determination that Texas is a more convenient forum for litigation of Mother’s modification suit affecting the parent-child relationship. And because the Florida court’s initial child-custody order does not constitute a child-support order under the Uniform Interstate Family Support Act and because no prior child-support order exists concerning Mother and Father’s children, the Texas trial court possessed jurisdiction under the UIFSA to issue a child-support order concerning Mother and Father’s children.
Clement v. State, No. 02-14-00267-CR (July 14, 2016) (Walker, J., joined by Gabriel, J.; Dauphinot, J., dissents with opinion).
Held: The trial court did not abuse its discretion when it allowed Officer McCoy to test Clement in court for resting nystagmus because the testing did not elicit testimonial communications and therefore did not implicate Clement’s rights under the Fifth Amendment to the United States Constitution or article 1, section 10 of the Texas constitution. Because Clement’s performance during the resting nystagmus testing was not testimonial in nature, the trial court also did not abuse its discretion by admitting Officer McCoy’s testimony regarding the HGN results. Moreover, after reviewing the entire record, we have fair assurance that the alleged error—in admitting the prosecutor’s statement in front of the jury that “if she [Clement] had resting nystagmus three years ago, she absolutely would have it today” and Officer McCoy’s comment that if Clement had resting nystagmus in 2011, then “[r]ight now she would have resting nystagmus”—did not influence the jury or had but a slight effect. And because Clement’s right to a fair trial was not substantially affected by the admission of the nontestimonial in-court nystagmus testing, the results of that testing, or Officer McCoy’s comment concerning resting nystagmus, the trial court did not abuse its discretion in denying Clement’s motion for new trial based solely on these grounds.
Dissent: The visiting trial judge reversibly erred by allowing the prosecutor and officer to make scientific statements regarding the presence or absence of resting nystagmus in Appellant’s eyes at the time of her arrest and at the time of trial when neither the prosecutor nor the officer had been designated or qualified as an expert on resting nystagmus. The trial court abused its discretion by denying Appellant’s motion for new trial. The evidence here was hotly contested, and therein lies the harm. The harm was exacerbated by the trial court’s denial of a continuance to respond to a Brady notice dated the same date as voir dire regarding the first officer at the scene and another denial of a continuance to allow defense counsel to retain an expert to rebut the surprise testimony that contradicted the testifying officer’s offense report.
Reed v. State, No. 02-15-00225-CR (July 14, 2016) (Dauphinot, J., joined by Livingston, C.J., and Gardner, J.).
Held: The testimony of the three witnesses identified as outcry witnesses was properly admitted on other grounds. Appellant impeached the complainant. Her statements to two of the challenged witnesses, who testified after her, were therefore admissible as prior consistent statements under rule 801(e)(1)(B). The complainant’s statements to the medical professional who performed the sexual assault exam were admissible as statements made for medical diagnosis or treatment under rule 803(4).
The trial court did not abuse its discretion by denying Appellant’s motion for mistrial after the State played a video excerpt of a police officer asking Appellant if he would be willing to submit to a polygraph exam when the trial court found that the excerpt was published to the jury inadvertently.