Goff v. State
931 S.W.2d 537
Tex. Crim. App.
1996
Check Treatment

Ex parte Oliver David CRUZ

No. 29545-01

Court of Criminal Appeals of Texas, En Banc

April 22, 1996

Michael D. Bernard, San Antonio, for appellant. Steven C. Hilbig, District Attorney, San Antonio, Matthew Paul, State‘s Atty., Austin, for State.

the jury should be instructed that the allegedly dangerous condition was the water Rodriguez claims was on the floor.

The City complains that there was no evidence that it knew of the water on the floor. However, there was evidence that the person in charge of the recreation center knew of the leaks in the roof and knew that it had been raining. Depending on the position of the leaks above the floor and the amount of rain, the jury might have inferred that the person in charge knew that there would be water on the floor. We therefore reject the City‘s no-evidence complaint.

The City also complains of error in the admission of evidence and plaintiff‘s summation. In view of our disposition of the case, we need not address these complaints.

Accordingly, the Court grants the City‘s application for writ of error and without hearing oral argument reverses the judgment of the court of appeals and remands the case to the district court for further proceedings. TEX.R.APP. P. 170.

ORDER

PER CURIAM.

On October 27, 1989, applicant was found guilty of the offense of capital murder. After the jury returned affirmative answers to the special issues submitted under Art. 37.071, V.A.C.C.P., punishment was assessed at death. This Court affirmed applicant‘s conviction on direct appeal.

.

On September 13, 1995, this Court granted applicant‘s request for a stay of his execution which had been scheduled to be carried out on September 15, 1995. Applicant sought the stay in order to afford this Court an opportunity to appoint counsel to file an initial application for writ of habeas corpus under the provisions of Art. 11.071, Sec. 2(d), V.A.C.C.P. Upon due consideration, we find no necessity for the appointment of counsel.

On December 16, 1994, applicant was appointed counsel by the trial court under the provisions of Art. 26.04, V.A.C.C.P. Such appointment took place following the denial of a petition for writ of certiorari. Counsel, Michael D. Bernard, was appointed to file a post conviction application for writ of habeas corpus on behalf of applicant. The appointment remains in effect and clearly encompasses the filing of a initial application for writ of habeas corpus. In view of applicant‘s current representation by counsel, no appointment by this Court is necessary.

The stay of execution granted by this Court on September 13, 1995, is vacated.