Second Court of Appeals

Week of November 21, 2022

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of November 21, 2022.

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.

Upchurch v. State, No. 02-21-00084-CR (Nov. 23, 2022) (Birdwell, J., joined by Wallach and Walker, JJ.).

Held: The trial court abused its discretion when it admitted evidence, over Appellant’s Rule 403 objection, of an extraneous offense in which Appellant had poured gasoline on the complainant and set her on fire. However, such error was harmless considering the overwhelming evidence of Appellant’s guilt and because the extraneous-offense evidence would have been admissible at the trial on punishment.

Bell v. State, No. 02-21-00098-CR (Nov. 23, 2022) (Sudderth, C.J., joined by Kerr and Birdwell, JJ.).

Held: Because a protective order issued under Chapter 85 of the Family Code prohibited Appellant from going to or near her son’s child-care facility, and because the protective order itself stated that it was for the safety of both the applicant and other members of the family, Appellant’s son was “a child protected by the order” within the ordinary meaning of that undefined term. Even though the protective order used the term “Protected Person” to refer to the applicant—Appellant’s son’s father—the relevant portions of the Family Code and Penal Code differentiate between the “person protected by an order,” a “member of the [person’s] family or household,” a “child protected by the order,” and a “protected individual.” The evidence was thus sufficient to support Appellant’s conviction for violating her protective order by going to or near a child-care facility where “a child protected by the order” attends.