Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of September 26, 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.

Savering v. City of Mansfield, No. 02-15-00034-CV (Sept. 29, 2016) (op. on reconsideration en banc) (Meier, J., joined by Livingston, C.J., and Walker and Gabriel, JJ.; Sudderth, J., dissents with opinion, joined by Dauphinot and Gardner, JJ.).

Held:  The trial court abused its discretion by denying Appellants’ amended application for a temporary injunction, as Appellants established both a probable right to relief on their trespass claim and a probable, irreparable injury absent an injunction.

Dissent:  The trial court did not abuse its discretion by denying Appellants’ amended application for a temporary injunction when it had the discretion to believe or disbelieve any of the parties’ conflicting evidence and from which evidence it had the discretion to determine that Appellants did not make the clear and compelling presentation of the extreme necessity or hardship required to impose the mandatory injunction requested by Appellants or the related, tangential prohibitive injunctions that they sought.  Further, Appellants have no standing for their trespass claim, which relies on ownership of the lots at issue by their homeowners’ association (HOA).  The record shows that the HOA did not exist when the developer filed the declaration that the HOA “will hold” record fee simple title to the “Common Properties.”  Assuming that the declaration attempted to convey the lots at issue to the HOA, a conveyance cannot be made to a nonexistent legal entity.

Kamanga v. State, No. 02-15-00413-CR (Sept. 29, 2016) (Dauphinot, J., joined by Livingston, C.J., and Gardner, J.).

Held:  The trial court erred by excluding impeachment evidence regarding a verbal threat the complainant had allegedly made to Appellant before her outcry.  Appellant did not connect the error to a violation of his right to confrontation or to any other constitutional violation.  The error in excluding the evidence was harmless because the jury heard the challenges to the complainant’s credibility and heard enough to glean the gist of the alleged threat, even though they did not hear any confirmation of the threat.  There was no evidence that the jury heard material misrepresentations that Appellant was prevented from challenging.