Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of October 29, 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.

Jackson v. Kindred Hosps. Ltd. P’ship, No. 02-18-00027-CV (Nov. 1, 2018) (Sudderth, C.J., joined by Gabriel and Pittman, JJ.).

Held:  The trial court abused its discretion by dismissing Appellee Kindred Hospitals Limited Partnership d/b/a Kindred Hospital Fort Worth (Kindred) after Kindred objected to Appellants Misty Jackson’s, Individually and on Behalf of the Estate of Roger J. Young, Deceased and Roger Jackson’s Tex. Civ. Prac. & Rem. Ann. § 74.351 expert report.  Limiting our review to the allegations in the four corners of Appellants’ expert report directed to Kindred, Appellants satisfied the statutory requirements to provide Kindred with notice of duty, breach, and causation.  To the extent the trial court sustained Kindred’s objections by comparing the factual allegations in Appellants’ expert report to the allegations in a separate expert report as to the attending physician, the trial court abused its discretion.  Although a trial court may “stack” multiple expert reports in order to determine if the plaintiff has provided defendants with fair notice of the alleged duty, breach, and causation, a trial court may not juxtapose the factual allegations in multiple expert reports in order to make factual determinations.  Accordingly, we reverse the trial court’s order dismissing Kindred and remand the case for further consistent proceedings.

Tyler v. State, No. 02-17-00255-CR (Nov. 1, 2018) (Meier, J., joined by Pittman and Birdwell, JJ.).

Held:  Code of criminal procedure article 102.008(a), which assesses a $25 “district attorney” fee on a defendant convicted of a misdemeanor or a gambling offense, is not an unconstitutional tax because an interconnected series of statutes directs that fee to be deposited into a fund in the county treasury and used to pay the prosecuting attorney’s salary, which is a legitimate criminal justice purpose.  The evidence is sufficient to support the “bodily injury” element of Appellant’s misdemeanor assault conviction because the penal code’s definition of that element encompasses even relatively minor physical contact that constitutes more than mere offensive touching, and the jury was entitled to believe the arresting officer’s testimony about Appellant’s physical contact with the complainant and to infer that pain was the result of that contact.  The trial court did not abuse its discretion when it overruled Appellant’s objection to speculation when the officer’s testimony, while phrased as a hypothetical applied to himself, was merely an elaboration of his earlier testimony.