Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of September 4, 2023.

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.

Z.S. v. L.S., No. 02-22-00479-CV (Sept. 7, 2023) (Wallach, J., joined by Kerr and Birdwell, JJ.).

Held: L.S. filed an application for a protective order against Z.S. for the benefit of the parties’ fourteen-year-old child, A.S. Section 153.009(b) of the Family Code did not authorize the trial court to interview A.S. in chambers, and the trial court erred by interviewing A.S. in chambers. The rules of law and evidence prevent this court from giving weight to the trial court’s statement on the record concerning A.S.’s testimony in chambers. See Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). Because the trial court’s statement provided the only evidence that family violence had occurred, the evidence is legally insufficient to support the trial court’s findings that family violence had occurred and that it is likely to occur in the future.

Mayfield v. State, No. 02-22-00199-CR (Sept. 7, 2023) (Wallach, J., joined by Womack and Walker, JJ.).

Held: The allowable unit of prosecution under Texas Penal Code Section 32.51 (fraudulent use or possession of identifying information) is each separate item of identifying information, regardless of the total number of identities or persons to whom the information belonged.  Because Appellant had fraudulently obtained, possessed, transferred, or used seven separate items of identifying information from two different persons, both of whom were elderly, Appellant was properly charged with, convicted of, and punished for a second-degree felony under the statute.  His plea of true to the habitual-offender notice in the indictment increased the range of punishment for his offense to 25 to 99 years or life in prison, and his sixty-year prison sentence was therefore legal.  The trial court did not err to instruct the jury on the statutory presumption of intent to harm or defraud another under Section 32.51(b-1)(1). The omission in the jury charge of an instruction about the law on presumptions pursuant to Texas Penal Code Section 2.05(a)(2) was error, but it was unpreserved and did not cause Appellant egregious harm.