Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of November 5, 2018.

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.

Lumsden v. State, No. 02-16-00366-CR (Nov. 8, 2018) (Meier, J., joined by Walker and Birdwell, JJ.).

Held:  Appellant raised fourteen issues challenging his convictions and sentences for aggravated sexual assault of a child, indecency with a child, and criminal solicitation of a minor, for which the trial court assessed his punishment at confinement for life for each offense.  Even considering the evidentiary errors we deemed harmless—admitting the video of the forensic interview, admitting the testimony about Appellant’s tampering with government records, and sustaining the State’s “nonresponsive” objections to Appellant’s testimony—we hold that the cumulative effect of the admission of this evidence does not require reversal because Appellant has not shown that the evidentiary errors “synergistically achieve the critical mass necessary to cast a shadow upon the integrity of the verdict.”

Old Am. Ins. Co. v. Lincoln Factoring, LLC, No. 02-17-00186-CV (Nov. 8, 2018) (Birdwell, J., joined by Gabriel and Kerr, JJ.).

Held:  The trial court signed a judgment in which it awarded Appellee Lincoln Factoring treble damages, attorney’s fees, and interest—but no actual damages—for Appellant Old American Insurance Company’s failure to promptly pay life-insurance benefits. As a matter of law, Appellee is not entitled to relief on the claims it pleaded. Appellee’s claim under chapter 541 of the Texas Insurance Code and its claim for a breach of the common law duty of good faith and fair dealing fail because the trial court did not award actual damages; under the evidence in this case, the trial court could not award actual damages; and without an award of actual damages, the trial court could not award treble damages or attorney’s fees. Appellee’s claims under chapter 542 of the Texas Insurance Code fail because Appellee lacks standing to assert them. Finally, Appellee cannot succeed on its breach of contract claim because Appellant eventually paid all of the benefits under the decedent’s policy.