Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of October 24, 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 P.S., No. 02-16-00008-CV (Oct. 27, 2016) (Walker, J., joined by Dauphinot and Sudderth, JJ.).

Held:  Because Father did not provide sperm to a licensed physician for the purpose of artificial insemination, we hold that Father is not a donor as that term is defined in Texas Family Code section 160.102(6) and is therefore not prohibited from being named as a parent to Pamela.

Ingerson v. State, No. 02-11-00311-CR (Oct. 27, 2016) (Meier, J., joined by Dauphinot, J.).

Held:  The State failed to carry its burden of proving that Appellant intentionally or knowingly caused the death of the two victims in this case.  Even viewing the evidence in a light most favorable to the jury’s verdict and taking the reasonable inferences from that evidence, the State’s evidence provided nothing more than speculation not grounded in admitted evidence.  The State went to great lengths to prove that Appellant once owned a gun that its own expert witness testified was not the murder weapon. The State also went to extraordinary lengths to prove that Appellant had a gun in his car the day after the murders that was of a different make and model than the murder weapon.  The State proved nothing more than that Appellant was last seen with the victims and that a pair of his pants containing no DNA or biological material of the victims tested positive for a very common chemical that, although tacitly consistent with gun residue, was in no manner logically linked to the murders.  Based on this record, no rational trier of fact could have found beyond a reasonable doubt that Appellant committed these murders.

Ingerson v. State, No. 02-11-00311-CR (Oct. 27, 2016) (per curiam) Opinion & Order Denying En Banc Submission (Walker, J., dissents with opinion, joined by Livingston, C.J., and Gabriel, J.).

Held:  Justice Walker’s motion to hear this case en banc is denied.

Dissent:  Because en banc submission of this appeal is unavoidable, the prudent course would have been to grant en banc submission on the court’s own motion prior to the issuance of today’s two-justice panel opinion to avoid a possible change in outcome, the possibility of an additional time delay associated with drafting a new majority opinion en banc, and the possibility of further delay due to upcoming changes in the composition of this court.  Because a majority of the court denied en banc submission of this appeal, I dissent from that denial.

Knight v. State, No. 02-15-00447-CR (Oct. 27, 2016) (Sudderth, J., joined by Gardner, J.; Walker, J. concurs without opinion).

Held:  Felony deadly conduct was not a lesser-included offense of aggravated assault by threat as it was charged in this case because the State was not required to prove that Appellant discharged a firearm, a required element of felony deadly conduct.