Shamark Smith Limited Partnership, Sharon D. Marcus, and Paul J. Smith v. Martin M. Longoria

ACCEPTED

03-14-00698-CV

5573168

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/5/2015 10:24:41 PM

JEFFREY D. KYLE

CLERK

NO. 03-14-00698-CV

IN THE FILED IN

3rd COURT OF APPEALS

THIRD COURT OF APPEALS AUSTIN, TEXAS

AT AUSTIN, TEXAS 6/5/2015 10:24:41 PM

JEFFREY D. KYLE

Clerk

SHAMARK SMITH LIMITED PARTNERSHIP, ET AL.,

Appellants,

v.

MARTIN M. LONGORIA,

Appellee

APPELLEE’S BRIEF

JAMES DAVID WALKER

P. O. Box 41

Milano, Texas 76556

SBOT 20706000

Phone: (512) 636-9520

Fax: (512) 455-7922

Email: walker@2appeal.com

ATTORNEY FOR

APPELLEE MARTIN M. LONGORIA

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Trial counsel W. W. Torrey enters an appearance as appellate co-counsel for

Appellee Martin M. Longoria. Torrey now serves as the duly elected County and

District Attorney for Milam County, Texas. This case is a holdover from his

private practice.

James D. Walker continues to serve as Appellee’s lead appellate counsel.

i

TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Appellants’ Brief contains numerous complaints which are supported by neither

argument nor authority and Appellants consequently have waived any error

thereby raised. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

I. EVIDENCE SUPPORTING DAMAGES. . . . . . . . . . . . . . . . . . . . . . . . . 15

I-A. Theories of Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Appellants’ liability-theory complaints are not preserved.. . . 15

The complaints lack merit. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

I-B. Defamation Damages Presumed. . . . . . . . . . . . . . . . . . . . . . . . . 17

Under Texas defamation law, Longoria's general damages

(reputation damages and mental anguish damages) are

presumed and need not be shown supported by evidence

because: (1) Appellants' theft accusation was defamatory

per se; and (2) in some instances the theft accusation

constituted statutory libel.. . . . . . . . . . . . . . . . . . . . . . . 17

The Texas Constitution restricts judicial power to change

common law and statutory principles governing

defamation. Texas courts must apply Texas defamation

law if such application is not clearly prohibited by the

federal constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Longoria’s recovery of presumed defamation damages is not

barred by the federal constitution. . . . . . . . . . . . . . . . . 22

ii

I-C. Any Review of Damages Should Be Limited. . . . . . . . . . . . . . . 26

If a review of general damages is required, then such a review

should be limited to the issues of whether damages are

either excessive or the product of improper influences

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

I-D. Reputation Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Although Longoria's reputation damages are presumed and

need not be shown supported by evidence, Longoria’s

reputation damages are nevertheless supported by

evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

I-E. Mental Anguish Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Although Longoria's mental anguish damages are presumed

and need not be shown supported by evidence,

Longoria's mental anguish damages are nevertheless

supported by evidence... . . . . . . . . . . . . . . . . . . . . . . . . 37

I-F. Exemplary Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Because Appellants’ only complaint about exemplary damages

is that they cannot be recovered without an award of

actual damages, it follows that Longoria should recover

the exemplary damages awarded if he recovers any

amount of actual damages. . . . . . . . . . . . . . . . . . . . . . . 46

II. EVIDENCE SUPPORTING ATTORNEY’S FEES. . . . . . . . . . . . . . . . 47

Longoria recovered damages, but his attorney’s fee award is not dependent

on a recovery of damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Longoria is entitled to attorney’s fees and costs under the Uniform

Declaratory Judgments Act, which authorizes “the court” to

award attorney’s fees that are equitable and just. . . . . . . . . . . 47

Additionally and alternatively, Longoria is entitled to attorney’s fees

and costs under CPRC Chapter 134, the Texas Theft Liability

Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

iii

Longoria’s attorney’s fee award is supported by evidence. . . . . . . . 51

Any failure to apportion attorney’s fees does not require reversal. . 55

Any failure to condition appellate attorney’s fees on success does not

require reversal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

III. CHALLENGE FOR CAUSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

III-A. Complaint Not Preserved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Appellants failed to preserve complaint about the trial court’s

ruling on their challenge for cause.. . . . . . . . . . . . . . . . 59

Appellants failed to identify (either by name or number)

specific objectionable veniremembers that would

remain on the jury list. . . . . . . . . . . . . . . . . . . . . 60

If Appellants are deemed to have identified specific

objectionable veniremembers, it was not shown to

have been timely done. . . . . . . . . . . . . . . . . . . . . 61

Appellants failed to exhaust their peremptory challenges

on veniremembers who were challenged for cause

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Appellants secured an undue advantage by using one of

their peremptory challenges on a Hispanic-

surnamed veniremember who was not challenged

for cause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

III-B. No Abuse Of Discretion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Even if complaint had been preserved, the court did not abuse

its discretion by overruling Appellants’ challenge for

cause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

The error assigned in this Court differs from the

complaint made at trial. . . . . . . . . . . . . . . . . . . . 66

In any event, the challenged veniremembers did not

exhibit a bias. . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

The challenged veniremembers exhibited (at worst)

confusion, misunderstanding, and ignorance of the

law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

iv

Any confusion was dispelled (rehabilitated) by

Longoria's counsel and the trial court. . . . . . . . . 70

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

1. Longoria’s Affidavit

2. Longoria’s Voluntary Statement Given to Deputy Ivy

3. Marcus’ Handwritten Statement

4. Marcus’ Typed Statement

5. List of Property Values Submitted to Sheriff

6. Deputy Ivy’s Investigative Report

7. Deputy Ivy’s Probable Cause Affidavit

8. Smith’s Grand Jury Submission (Direct File)

9. Grand Jury No Bill

10. Smith’s Sworn Proof of Loss Submitted to Insurance Company

11. Notice of Insurance Claim Reported 3/3/2008

12. Insurance Claim Red Flagged

13. Insurance Claim Paid

14. Jury Charge

v

INDEX OF AUTHORITIES

Cases

Air Routing Int'l Corp. v. Britannia Airways, Ltd., 150 S.W.3d 682

(Tex.App.–Hou. [14th Dist.] 2004, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Arrow Marble, LLC v. Killion, 441 S.W.3d 702 (Tex.App.–Hou. [1st Dist.] 2014,

no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997). . . . 52

Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . 22-24

Britton v. Tex. Dep't of Crim. Justice, 95 S.W.3d 676 (Tex.App.–Hou. [1st Dist.]

2002, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Burbage v. Burbage, 447 S.W.3d 249 (Tex. 2014). . . . . . . . . . . . . . . 24, 25, 35-37

Capps v. Nexion Health at Southwood Inc., 349 S.W.3d 849 (Tex.App.–Tyler

2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Carey v. Piphus, 435 U.S. 247 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). . . . . . . . . . . . . . . . . . . 33, 41

City of San Antonio v. Heim, 932 S.W.2d 287 (Tex.App.–Austin 1996, pet. den.)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Cortez ex rel. Estate of Puentes v. HCCI-San Antonio, Inc., 159 S.W.3d 87 (Tex.

2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 61, 62, 67, 70

Daniels v. Empty Eye, Inc., 368 S.W.3d 743 (Tex.App.–Hou. [14th Dist.] 2012, pet

den.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Downing v. Burns, 348 S.W.3d 415 (Tex.App.–Hou. [14th Dist.] 2011, no pet.)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

vi

Ford v. Premier Installation & Design Group, Inc., 2013 WL 4680513

(Tex.App.–Hou. [14th Dist.] 2013, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Gertz v. Robert Welch, 418 U.S. 323 (U.S. 1974). . . . . . . . . . . . . . . . . . . . . . . . . 22

Guillaume v. City of Greenville, 247 S.W.3d 457 (Tex.App.–Dallas 2008, no pet.)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Guisti v. Galveston Tribune, 105 Tex. 497 (Tex. 1912).. . . . . . . . . . . . . . . . . . . . 19

Hallett v. Houston Northwest Medical Center, 689 S.W.2d 888 (Tex. 1985). . . 59,

61, 65

Hancock v. Variyam, 400 S.W.3d 59 (Tex. 2013). . . . . . . 18, 22, 24-26, 32, 34, 35

Holland v. Wal-Mart Stores, 1 S.W.3d 91 (Tex. 1999). . . . . . . . . . . . . . . . . . . . . 47

In re Corral-Lerma, 451 S.W.3d 385 (Tex. 2014). . . . . . . . . . . . . . . . . . . . . . . . . 49

In re Lipsky, 2015 Tex. LEXIS 350 (Tex. 2015). . . . . . . . . . . . . . . . . 19, 30, 36, 71

In re Reese, 402 B.R. 43 (Bankr. M.D. Fla. 2008). . . . . . . . . . . . . . . . . . . . . . . . . 34

Knoll v. Neblett, 966 S.W.2d 622 (Tex.App.–Hou. [14th Dist.] 1998, pet. den.)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Larson v. Cactus Utility Co., 730 S.W.2d 640 (Tex. 1987). . . . . . . . . . . . . . . . . . 28

Leyendecker & Associates, Inc. v. Wechter, 683 S.W.2d 369 (Tex. 1984). . . . . . 20

Matthews v. Candlewood Builders, Inc., 685 S.W.2d 649 (Tex. 1985). . . . . . . . . 56

McCluskey v. Randall's Food Mkts., Inc., 2004 WL 2340278 (Tex.App.–Hou. [14th

Dist.] 2004, pet. den.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

McCullough v. Scarbrough, Medlin & Assocs., 435 S.W.3d 871 (Tex.App.–Dallas

2014, pet. den.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

vii

McGregor v. Vela, 2002 WL 220072 (Tex.App.–Austin 2002, no pet.). . . . . . . . 33

McMillin v. State Farm Lloyds, 180 S.W.3d 183 (Tex.App.–Austin 2005, pet.

den.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Medical v. Wikle, 2013 WL 2390103 (Tex.App.–Amarillo 2013, no pet.). . . . . . 36

Miranda v. Byles, 390 S.W.3d 543 (Tex.App.–Hou. [1st Dist.] 2012, pet. den.)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 56

Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Murff v. Pass, 249 S.W.3d 407 (Tex. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Northeast Texas Motor Lines, Inc. v. Hodges, 158 S.W.2d 487 (Tex. 1942). . . . 73

Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995). . . . . . . . . . . 38, 40, 42, 44

R & R Res. Corp. v. Echelon Oil & Gas, 2011 Tex. App. LEXIS 295

(Tex.App.–Austin 2011, pet. den.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Rogers v. City of Fort Worth, 89 S.W.3d 265 (Tex.App.–Fort Worth 2002, no pet.)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

SEC v. Singer, 786 F. Supp. 1158 (S.D.N.Y. 1992). . . . . . . . . . . . . . . . . . . . . . . . 34

Simon & Schuster v. Dove Audio, 970 F. Supp. 279 (S.D.N.Y. 1997).. . . . . . . . . 33

Smirl v. Globe Laboratories, Inc., 188 S.W.2d 676 (Tex. 1945). . . . . . . . . . . . . . 65

Smith v. Dean, 232 S.W.3d 181 (Tex.App.–Fort Worth 2007, pet. den.). . . . 68, 73

South Tex. Freightliner, Inc. v. Muniz, 288 S.W.3d 123 (Tex. App. Corpus Christi

2009, pet. den.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Southwest Grain Co. v. Garza, 2007 WL 1087179 (Tex.App.–Corpus Christi

2007, pet. den.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

viii

Southwestern Tel. & Tel. Co. v. Long, 183 S.W. 421 (Tex.Civ.App.–Austin 1915,

no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 40

Strong v. Nicholson, 580 So. 2d 1288 (Miss. 1991). . . . . . . . . . . . . . . . . . . . . . . . 45

Texas Farm Bureau Ins. Cos. v. Sears, 54 S.W.3d 361 (Tex.App.–Waco 2001),

rev’d, 84 S.W.3d 604 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Thrift v. Hubbard, 974 S.W.2d 70 (Tex.App.–San Antonio 1998, pet. den.). . . . 28

Tom Benson Chevrolet, Inc. v. Alvarado, 636 S.W.2d 815 (Tex.App.–San Antonio

1982, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006). . . . . . . . . . . . 57

Tony Houseman Assocs. v. Couch, 1996 WL 125529 (Tex.App.–Beaumont 1996,

no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Tranum v. Broadway, 283 S.W.3d 403 (Tex.App.–Waco 2008, pet. den.). . 16, 18,

27, 28

Turner v. KTRK TV, Inc., 38 S.W.3d 103 (Tex. 2000). . . . . . . . . . . . . . . . . . . 21, 24

Union Pac. R.R. v. Legg, 2009 WL 2476636 (Tex.App.–Austin 2009, no pet.)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Valley Nissan, Inc. v. Davila, 133 S.W.3d 702 (Tex.App.–Corpus Christi 2003, no

pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Waste Management of Texas, Inc. v. Texas Disposal System Landfill, Inc., 434

S.W.3d 142 (Tex. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 35, 36, 39

Williams v. Skelton, 2007 WL 899907 (Tex.App.–Waco 2007, pet. den.).. . . . . . 64

Williamson v. New Times, Inc., 980 S.W.2d 706 (Tex.App.–Fort Worth 1998, no

writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

ix

Wyler Indus. Works v. Garcia, 999 S.W.2d 494 (Tex.App.–El Paso 1999, no pet.)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Zeliff v. Jennings, 61 Tex. 458 (Tex. 1884). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

x

Constitution, Statutes, and Rules

Texas Civil Practice And Remedies Code § 134.003. . . . . . . . . . . . . . . . . . . . . . . 48

Texas Civil Practice And Remedies Code § 134.005. . . . . . . . . . . . . . . . . . . . . . . 48

Texas Civil Practice And Remedies Code § 37.009. . . . . . . . . . . . . . . . . . . . . . . . 47

Texas Civil Practice And Remedies Code § 73.001. . . . . . . . . . . . . . . . . . . . . 19, 20

Texas Penal Code § 31.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Texas Rules of Appellate Procedure, Rule 33.1. . . . . . . . . . . . . . . . . . 15, 56, 58, 73

Texas Rules of Appellate Procedure, Rule 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Texas Rules of Civil Procedure, Rule 274. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 56

Texas Rules of Civil Procedure, Rule 286. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

xi

STATEMENT OF THE CASE

Appellants’ statement of the case fails to note that Appellants also sought

relief under the Uniform Declaratory Judgments Act and the Texas Theft Liability

Act.

xii

STATEMENT OF FACTS

Appellee Martin M. Longoria owns and operates a business which has

employed as many as sixteen people.1 He owns harvesting equipment plus

substantial real property in Mexico.2 He has negotiated many contracts.3 He pays

taxes and supports a family.4

Longoria was born in Mexico but has been in the United States on a

permanent visa for 34 years.5 He employs both U.S. and Mexican citizens.6 His

foreign employees are brought to the U.S. through work visas.7

Longoria has succeeded despite many challenges. He has a third grade

education.8 He cannot read the English language.9 He has difficulty understanding

the nuances of certain English language words.10

1

(RR8:225,228,260)

2

(RR6:173; RR8:215)

3

(RR8:218)

4

(RR8:278)

5

(RR8:259-260,277; Appendix2 / PlExh8B-2,p.4)

6

(RR8:222)

7

(RR8:224,260)

8

(Appendix2 / PlExh8B-2,p.5)

9

(Appendix2 / PlExh8B-2,p.5)

10

(RR8:237-242; RR9:17-18)

1

Longoria had for at least six years had provided contract labor (ranch work)

for Appellant Paul Smith (a criminal-defense attorney) and Appellant Sharon

Marcus (then Smith’s wife).11 Smith and Marcus then made Longoria the fall guy

in a scheme to collect insurance proceeds.

The insurance scheme concerned the deconstruction of, and alleged theft of

property from, a rural vacant farm house (herein the House).12 The House was

owned by Appellant Shamark Smith Limited Partnership.13 Smith managed the

Partnership but he allowed Marcus to make decisions and representations about

the House.14 Marcus was the limited partner and thus had the economic benefit.15

The tax appraisal district appraised the House as having no value.16 A

neighbor described the House as a “buzzard roost.”17

Longoria and Smith discussed deconstructing the House.18 Smith told

11

(7RR:145; 8RR:102,181; PlExh8B-2,p.6; Appendix1 / PlExh14A-15)

12

(5RR:13; RR6:130; RR7:45-46; Appendix6 / PlExh7A)

13

(DefExh7A; 7RR:92-93)

14

(RR6:267; RR7:56-62,67,91-94; RR8:244,278-279; Appendix3 / PlExh6B; Appendix8 /

PlExh29,p.2)

15

(RR5:73)

16

(RR7:99-101)

17

(RR6:154,177-178)

18

(PlExh8B-2,p.8)

2

Longoria that he would need to discuss it with Marcus to see what she wants to

do.19

About six months later, Marcus and Longoria discussed the House.20

Longoria testified that Marcus said she might doze it down.21 Longoria contends,

but Appellants deny, that he and Marcus reached the following agreement:

Longoria would deconstruct the House; Longoria would keep the roof tin; and,

Marcus would keep the lumber.22

The evidence does not leave any room for a misunderstanding. For example,

Longoria testified that only he and Marcus were present during the discussion.23 In

contrast, Smith and Marcus testified that they both were present – and insisted that

they had declined Longoria’s offer to deconstruct the house, telling Longoria that

they planned to turn the House into a bed and breakfast.24

About three days after Marcus and Longoria made the agreement,

19

(RR8:244,278-279,299-300)

20

(PlExh8B-2,pp.8-9; Appendix1 / PlExh14A-15; RR8:244-245)

21

(RR8:245)

22

(Appendix2 / PlExh8B-2,pp.8-9; Appendix1 / PlExh14A-15; RR8:244-246)

23

(RR8:219,245)

24

(RR7:124-126,215-217)

3

Longoria’s employees began deconstructing the House.25 Per the agreement, they

removed the tin and began storing it at Longoria’s headquarters but left the lumber

stacked in place.26

Over the course of about a week Longoria’s employees made enough noise

to be heard by several neighbors - hammering, crinkling, banging, beating,

“tearing something down.”27 Smith and Marcus admitted to having heard the

hammering.28

Smith conceded that Longoria knew where Smith and Marcus lived (just a

few hundred yards across the road from the House) and, additionally, that

Longoria knew Smith and Marcus drove by the House on a daily basis.29 The

House was on top of a hill and was visible from two county roads.30

On March 2, 2008, about a week after the work had commenced, Smith

purported to “discover” the House’s condition (being partially deconstructed).31

25

(RR8:188; Appendix2 / PlExh8B-2,pp.8-9)

26

(PlExh8B-2,pp.10-14)

27

(RR6:129-130,133-136,163,179-180)

28

(RR7:174-175,217-218)

29

(RR7:138,218; RR8:244-245; Appendix1 / PlExh14A-15,par.6)

30

(RR6:185-186; RR8:273-274)

31

(Appendix6 / PlExh7A; RR7:217–219)

4

Smith and Marcus called the sheriff and reported a burglary committed by persons

unknown.32 They complained that both personalty and building materials had been

stolen.33

The next day, Smith notified his insurance company about the “theft.”34

Smith posted ads in seven different newspapers offering a reward for information

related to the “theft.”35

Thereafter, Marcus and a neighbor visited Longoria’s headquarters and

recognized the stored tin (decoratively painted) as having come from the House.36

They passed Longoria on the way back but did not stop.37 Although Smith was

aware of this tin “discovery,” and although the neighbor repeatedly encouraged

Marcus to call Longoria, neither Marcus nor Smith contacted Longoria and

likewise neither notified law enforcement about the tin “discovery.”38

Some days after this “discovery” of the tin Marcus, on March 11, 2008,

32

(Appendix6 / PlExh7A)

33

(Appendix6 / PlExh7A)

34

(Appendix10 / DefExh1)

35

(DefExh5A-thru-5G; RR7:28,187)

36

(RR6:154,182,188-189; RR7:134,249-250; RR8:109-110)

37

(RR6:169-170,189-190; RR8:253-254)

38

(RR6:154,169-170,183,186-187,190; RR7:134,249-250; RR8:111)

5

purported to “discover” Longoria’s employees drive to the House.39 These

employees are the same people who Longoria had sent to work on Marcus’

property for the past six years.40 Sheriff West and Deputy Ivy went to the scene

after Marcus “called and stated that the suspects who had stolen the items from the

farmhouse had returned.”41

Marcus and Smith told Sheriff West that Longoria "did it."42

Longoria arrived at the House to find his employees being detained with their

hands in the air “like criminals.”43 This occurred in the presence of at least one of

Marcus’ neighbors.44

Longoria gave a voluntary statement and was released.45 He confirmed that

he had instructed his employees to deconstruct the house, admitted to taking the

tin, and explained the agreement he had with Marcus.46 He offered to take a lie

39

(Appendix6 / PlExh7A; Appendix4 / PlExh6A; RR7:249-250)

40

(RR8:181-182,242-243)

41

(Appendix6 / PlExh7A; Appendix4 / PlExh6A)

42

(RR6:208,226-227; RR8:255)

43

(RR8:252; Appendix6 / PlExh7A)

44

(Appendix6 / PlExh7A)

45

(Appendix2 / PlExh8B-2; Appendix6 / PlExh7A; RR8:198-99,256)

46

(PlExh8B-2; RR8:199,253,256-257; Appendix6 / PlExh7A)

6

detector test.47

Marcus and Smith told law enforcement that Longoria did not have

permission to deconstruct the house.48 Marcus also gave the sheriff two different

written statements (the first handwritten and the second typed) wherein she denied

having made the agreement with Longoria.49 Appellants gave the sheriff a

document which valued the property alleged to have been stolen.50

However, other than the tin, no property had been removed from the

House.51 Longoria testified: that he had walked through the House before his

workers started;52 that when he walked through the House with the sheriff on

March 11th the building materials which had been deconstructed were still in the

house - except for the tin stored on Longoria's property;53 and, that the personalty

which had been in the house when the job began was still there.54 This was

47

(RR8:257-258; PlExh8B-2,p.14)

48

(RR8:255; Appendix6 / PlExh7A; Appendix7 / PlExh7B)

49

(Appendix4 / PlExh6A; Appendix3 / PlExh6B; Appendix6 / PlExh7A; RR6:267)

50

(Appendix6 / PlExh7A; Appendix5 / PlExh24; RR7:66-67)

51

(Appendix1 / PlExh14A-15,par.11)

52

(PlExh8B-2,pp.10-11; RR8:246-247)

53

(RR8:258,272)

54

(RR8:246; RR9:11-14; RR9:15)

7

confirmed by Marcus’ neighbor, who testified that he had at first assumed there

was a misunderstanding - because he had observed that only the tin was gone and

he was aware that it was the tin that Longoria had requested in exchange for

deconstructing the House.55

Relying on information provided by Appellants, the district attorney caused

a warrant to be issued for Longoria's arrest.56 In support of the warrant, Deputy Ivy

filed a probable cause affidavit expressing a belief that Longoria had unlawfully

appropriated property, in violation of Texas Penal Code § 31.03 (Theft - which

provides that an appropriation of property is unlawful if it is without the owner’s

effective consent).57 The affidavit reflects that Ivy’s belief is based on the fact that

Longoria admitted some of the property was stored in his yard and the fact that

Smith and Marcus stated the property was removed from the House without

permission.58

On March 25, 2008, Longoria turned himself in, was arrested, and posted

bail.59 Smith and Marcus told people in the community that Longoria had been

55

(RR6:154,183-184)

56

(Appendix6 / PlExh7A; Appendix7 / PlExh7B; RR6:224-227; RR7:74,107,185-187)

57

(Appendix7 / PlExh7B; RR7:185-187)

58

(Appendix7 / PlExh7B; RR8:255)

59

(Appendix6 / PlExh7A; RR7:107; RR8:202,262)

8

accused of theft and arrested.60

Smith gave his insurance company a sworn proof of claim which included

the following statement: “Martin Longoria stole our property.”61 The values listed

in the insurance claim far exceeded the $93,600 property theft reported to law

enforcement.62

The insurance claim included $55,260 for personalty.63 Significantly,

although the insurance policy covered only Smith’s and Marcus’ property (and not

the Partnership’s), Smith also included a claim of $250,000 for the no-tax-value

House (which belonged to the Partnership).64

The insurance company red-flagged the claim as being "suspicious,"

because it appeared that the materials alleged to be stolen were removed during a

week time span during daylight hours, because neighbors reported hearing

hammering, and because it looked like the house was being prepared for

destruction.65 Eventually the claim was processed but, because the bulk of the

60

(RR7:145-146; RR8:262,280)

61

(Appendix11 / PlExh25; 7RR:77)

62

(Appendix5 / PlExh24; Appendix11 / PlExh25; PlExh26)

63

(Appendix11 / PlExh25)

64

(Appendix11 / PlExh25; RR7:77,90-96,101-102;114-118)

65

(Appendix12/ DefExh1; RR7:85-90)

9

claim related to Partnership property not covered by the policy, the company paid

only $27,810 of the $305,260 requested.66

Longoria’s theory is that Smith and Marcus needed money but, in planning

the insurance scheme, they simply failed to account for the fact that the

Partnership House was not covered by their personal insurance policy.67

During the trial underlying this appeal, Smith testified that he understood, at

the time he filed the claim, that the Partnership’s property was not covered by the

insurance policy.68 He also testified that if the insurance company had sent a check

for the $250,000 Partnership-property claim, he “would have probably wanted to

cash it.”69

At some point Smith submitted a report to the grand jury (a direct file),

wherein he accused Longoria of theft.70 On November 21, 2008, about eight

months after Longoria was arrested, the grand jury issued a no bill.71

In the underlying civil proceeding Appellants complained that Longoria had

66

(RR7:29-31,95-96; Appendix13 / DefExh1; PlExh12)

67

(CR:338-339; RR5:40,57-66; RR8:261-262; RR9:173-175; Appendix10 / DefExh1)

68

(RR7:96)

69

(RR7:96)

70

(Appendix8 / PlExh29; RR7:73-75,110-111,148-150)

71

(Appendix6 / PlExh7A; Appendix9 / DefExh1)

10

committed conversion, trespass, and statutory theft (violation of the Texas Theft

Liability Act).72 Longoria counterclaimed, complaining of defamation, malicious

prosecution, and intentional infliction of emotional harm.73

During the trial, Marcus called several people liars, including Smith.74

Marcus testified that Sheriff West "did a lot of lying on the stand."75 Ultimately,

Marcus admitted that she herself had sworn to false statements under oath in at

least two different documents.76

The jury unanimously failed to find that Longoria had committed

conversion, trespass, and statutory theft.77 The jury unanimously found for

Longoria on defamation, malicious prosecution, and intentional infliction.78

Because Appellants challenge only the evidentiary support for damages and

attorney’s fees (not liability), this discussion has been limited to facts which put

Longoria’s damages in perspective. Additional facts and clarifications will be

72

(CR:8,116)

73

(CR:335)

74

(RR7:205,227; RR8:116-118,128,144-147)

75

(RR8:118)

76

(RR8:130-137)

77

(CR:1031)

78

(CR:1031)

11

discussed in context with the argument.

12

SUMMARY OF ARGUMENT

Because Appellants' theft accusation was defamatory per se, and because in

some instances it constituted statutory libel, Longoria's actual damages are

presumed and need not be shown supported by evidence. Nevertheless, the

damages are supported by evidence - as is Longoria’s attorney’s fee award.

Appellants failed to preserve any error in the trial court's ruling on their

challenge for cause. In any event, the court did not abuse its discretion by

overruling Appellants' challenge for cause.

13

ARGUMENT

Appellants’ Brief contains numerous complaints which are supported

by neither argument nor authority and Appellants consequently have waived

any error thereby raised. The failure to adequately brief an issue by failing to

specifically argue and analyze one's position waives any error on appeal.

McCullough v. Scarbrough, Medlin & Assocs., 435 S.W.3d 871, 911-912

(Tex.App.–Dallas 2014, pet. den.); see TRAP 38.1(i) (brief must contain argument

for contentions made, with citation to authorities). Longoria will try not to belabor

this issue, but asks the Court to apply these principles where appropriate.

14

I. EVIDENCE SUPPORTING DAMAGES

I-A. Theories of Liability

Although Appellants do not challenge the evidentiary basis for liability,

Appellants complain about the manner in which Jury Question 19 (damages) is

linked to the liability theories. Appellants argue that Longoria thereby waived the

right to recover damages under the jury’s malicious prosecution finding (Question

12) and under the jury’s intentional infliction finding (Question 13). Appellants

also complain that the intentional infliction claim is a gap filler and further

complain that, as such, it is not an available cause of action.

Appellants’ liability-theory complaints are not preserved. Appellants

have not demonstrated that the complaints were preserved. See TRAP 33.1

(preservation requires objection and ruling).

Significantly, Appellants did not object to the manner by which Question 19

(damages) is linked to liability theories. Thus, the liability-theory complaints are

not preserved. See TRCP 274 (no objection may be adopted by reference); Tom

Benson Chevrolet, Inc. v. Alvarado, 636 S.W.2d 815, 823 (Tex.App.–San Antonio

1982, writ ref’d n.r.e.) (party cannot complain that jury was permitted to find

damages based upon an improper, a wrong or an immaterial instruction, where no

complaint was made to the charge on this basis).

15

The complaints lack merit. At the very least, the jury’s malicious

prosecution finding and the jury’s defamation finding each independently provide

a liability basis for the jury’s damages findings. Appellants rely on an unduly

narrow construction of the jury’s findings. The jury charge is attached

(Appendix14).

In Question 19 the jury was asked to find damages caused by the Question

14 theft accusation (Appellants’ published statement that Longoria had stolen).

(CR1052) As pleaded, the theft accusation was an integral part of both Longoria’s

malicious prosecution claim and Longoria’s defamation claim. See e.g. CR:337

(malicious prosecution - alleging that theft accusation resulted in a criminal

investigation, criminal charges, and grand jury consideration) & CR:339

(defamation - alleging that theft accusation was defamatory). Indeed, Appellants

concede that the theft accusation is an issue common to both malicious

prosecution and defamation.” (Brief,p.17 - theft accusation central to all claims)

The theft accusation caused Longoria’s injury - not just the injury arising

out of defamation but, additionally, the injury arising out of malicious prosecution.

See e.g. Tranum v. Broadway, 283 S.W.3d 403, 422 (Tex.App.–Waco 2008, pet.

den.) (in malicious prosecution action, claimant may recover damage to reputation

resulting from accusation brought against claimant).

16

Thus, when the Question 14 theft accusation finding is considered with the

Question 12 malicious prosecution finding (that Appellants initiated or procured

the prosecution with malice and without probable cause), Question 14 supports

damages for malicious prosecution. And, when the Question 14 theft accusation is

considered with the Questions 15-18 defamation findings (defamatory, false, and

with requisite knowledge), Question 14 supports damages for defamation.

Question 19 (damages) is conditioned to allow the jury to award damages -

proximately caused by the Question 14 theft accusation - if the jury answers “yes”

to either the Question 12 malicious prosecution finding or the Question 18

defamation finding. Each of these theories independently support damages.

I-B. Defamation Damages Presumed

Under Texas defamation law, Longoria's general damages (reputation

damages and mental anguish damages) are presumed and need not be shown

supported by evidence because: (1) Appellants' theft accusation was

defamatory per se; and (2) in some instances the theft accusation constituted

statutory libel.

In the context of defamation, there is a distinction between general damages

(which can be presumed) and special damages (which cannot be presumed).

Actual or compensatory damages compensate a plaintiff for the injury incurred

17

and include general damages (which are non-economic damages such as for loss

of reputation or mental anguish) and special damages (which are economic

damages such as for lost income). Hancock v. Variyam, 400 S.W.3d 59, 65 (Tex.

2013).

Historically, defamation per se has involved statements that are so

obviously hurtful to a plaintiff's reputation that the jury may presume general

damages, including for loss of reputation and mental anguish. Hancock, 400

S.W.3d at 63-64. Historically, defamation per se claims allow the jury to presume

the existence of general damages without proof of actual injury. Id. at 65. In

contrast, special damages are never presumed. See id. at 66 (plaintiff must always

prove special damages).

Thus, under Texas common law a defendant is liable to a plaintiff for

statements that are defamatory per se even in the absence of any evidence of harm.

Miranda v. Byles, 390 S.W.3d 543, 555-56 (Tex.App.–Hou. [1st Dist.] 2012, pet.

den.); see Tranum, 283 S.W.3d at 422 (because statements were slanderous per se,

plaintiff was not required to present independent proof of mental anguish). At a

minimum, the plaintiff is entitled to a nominal sum, but is not limited to that

amount, and the jury may choose to award substantial damages. Miranda, 390

S.W.3d at 555-56.

18

The amount to award for the presumed harm to the plaintiff's reputation lies

within the jury's discretion. Downing v. Burns, 348 S.W.3d 415, 425

(Tex.App.–Hou. [14th Dist.] 2011, no pet.). Even if the jury is not instructed that it

can presume damages, on appeal general damages can be presumed to flow from

defamation per se. Id. at 425-26.

Whether a statement qualifies as defamation per se is generally a question of

law. In re Lipsky, 2015 Tex. LEXIS 350, at *32 (Tex. 2015). Here, Appellants’

theft accusation (CR1047 - that Longoria had stolen) was defamatory per se. See

Downing, 348 S.W.3d at 424 (statement that defendant stole is defamatory per se);

In re Lipsky, 2015 Tex. LEXIS 350, at *32 (accusation of crime is example of

defamation per se); Zeliff v. Jennings, 61 Tex. 458, 466-467 (Tex. 1884) (words

imputing moral turpitude are actionable per se).

Libel (as contrasted with slander) has a statutory basis. The Texas libel

statute defines libel. See CPRC § 73.001 (herein “statutory libel”).

“[I]n the enactment of [the predecessor to Section 73.001] the purpose was

not only to make definite what constitutes actionable libel in this State, but to

materially modify the doctrine of the common law upon that subject.” Guisti v.

Galveston Tribune, 105 Tex. 497, 504 (Tex. 1912).

Construing the predecessor to Section 73.001 (Art. 5430), the Supreme

19

Court has held that “a person defamed by a writing libelous per se may recover by

bringing an action at common law without proof of injury.” Leyendecker &

Associates, Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984).

In Leyendecker, the court reviewed Mrs. Wechter's mental anguish damages

for evidentiary support–because the statements directed toward her were not

libelous per se–and the court reversed her award for want of evidence. 683 S.W.2d

at 374. However, the court concluded that the statements directed toward Mr.

Wechter were libelous per se–and thus affirmed his award of mental anguish

damages without reviewing the evidence. Id. Proof of damages was inferred from

the libelous statement.

To the extent that Appellants’ theft accusation was published through a

writing it constituted statutory libel per se. See CPRC § 73.001 (defining libel),

Jury Question 15 (definition of “defamatory,” which incorporates statutory

definition of libel), Jury Question 14 (recognizing that statement can be published

through a writing). As was noted, the sheriff was given at least two written

statements denying that Longoria had permission to deconstruct the House along

with a list valuing the “stolen” property; the reward ads alleged theft; and, the

grand jury submission and the sworn proof of insurance loss both contained

allegations that Longoria committed theft. (Supra,pp.7-10)

20

The Texas Constitution restricts judicial power to change common law

and statutory principles governing defamation. Texas courts must apply

Texas defamation law if such application is not clearly prohibited by the

federal constitution.

The Texas Supreme Court has recognized state constitutional restrictions on

judicial power to alter common law and statutory principles governing defamation,

as follows:

Although we have recognized that the Texas Constitution’s free

speech guarantee is in some cases broader than the federal guarantee,

we have also recognized that broader protection, if any, cannot come

at the expense of a defamation claimant’s right to redress. Unlike the

United States Constitution, the Texas Constitution expressly

guarantees the right to bring reputational torts. The Texas

Constitution's free speech provision guarantees everyone the right to

"speak, write or publish his opinions on any subject, being

responsible for abuse of that privilege." TEX. CONST. art. I, § 8

(emphasis in original). Likewise, the Texas Constitution's open courts

provision guarantees that "all courts shall be open, and every person

for an injury done him, in his lands, goods, person or reputation, shall

have remedy by due course of law." TEX. CONST. art. 1, § 13.

Turner v. KTRK TV, Inc., 38 S.W.3d 103, 116-117 (Tex. 2000) (emphasis in

original - authority omitted).

Unless the defamation principles previously outlined have been limited by

federal constitutional law, Longoria’s damages are presumed and he is entitled to

recover his general damages without proof of injury - without an independent

21

evidentiary basis. See Hancock, 400 S.W.3d at 71 (recognizing need to reconcile

federal and state constitutional rights of free speech and the Texas constitutional

right to recover for reputational torts).

Longoria’s recovery of presumed defamation damages is not barred by

the federal constitution. Although the federal constitution limits a state’s power

to presume defamation damages, in Hancock the Texas Supreme Court identified

the circumstances under which the federal constitution permits defamation

damages to be presumed: “[T]he [U.S.] Constitution only allows juries to presume

the existence of general damages in defamation per se cases where: (1) the speech

is not public, or (2) the plaintiff proves actual malice.” 400 S.W.3d at 65-66,

citing Gertz v. Robert Welch, 418 U.S. 323 (U.S. 1974).

If these are the only federal constitutional limitations on a state’s power to

presume damages in defamation cases, then there is no federal constitutional bar to

such a presumption in Longoria’s case. Longoria’s case does not involve public

speech. Moreover, the jury found that Appellants’ theft accusation was made with

actual malice.

In the constitutional sense, “actual malice means knowledge of, or reckless

disregard for, the falsity of a statement.” Bentley v. Bunton, 94 S.W.3d 561, 591

(Tex. 2002). Reckless disregard is satisfied by evidence that the defendant in fact

22

entertained serious doubts as to the truth of his publication or evidence that the

defendant actually had a high degree of awareness of the probable falsity of his

statements. Id.

By the answer to Jury Question 18 the jury found that Appellants made the

theft accusation with actual malice: that Appellants made the theft accusation with

knowledge that it was false or with a high degree of awareness that it was false,

such that they had serious doubts as to its truth. (CR:1051) Thus, there being no

federal constitutional bar to presumed damages, under Texas defamation law

Longoria's general damages (mental anguish damages and reputation damages) are

presumed and need not be shown supported by evidence.

Appellants argue that there must be an evidentiary review of the amount of

Longoria’s general damages. However, it is the federal constitution which as a

general rule requires such a review. See Bentley, 94 S.W.3d at 605 (the First

Amendment requires appellate review of amounts awarded for non-economic

damages in defamation cases to ensure that any recovery only compensates the

plaintiff for actual injuries and is not a disguised disapproval of the defendant).

As demonstrated, the federal constitution does not require a review of the

amount of Longoria’s general damages - because Longoria’s case falls within the

exception to the rule: the speech at issue is not public and, in any event, Longoria

23

proved actual malice. See Hancock, 400 S.W.3d at 65-66 (Gertz allows juries to

presume existence of general damages where speech is not public or where

plaintiff proves actual malice); Bentley, 94 S.W.3d at 608 (Baker, J., dissent)

(Gertz requires a reviewing court to review damage awards, and limit a defamed

plaintiff's damages to those reflecting "actual injury," only when the culpability

standard is less than actual malice).

Appellants argue that only nominal damages can be presumed. In this

regard, the Burbage court held as follows:

Texas law presumes that defamatory per se statements cause

reputational harm and entitle a plaintiff to general damages such as

loss of reputation and mental anguish. But this presumption yields

only nominal damages. Beyond nominal damages, we review

presumed damages for evidentiary support.

Burbage v. Burbage, 447 S.W.3d 249, 259 (Tex. 2014) (authority omitted).

On the surface, this holding seems inconsistent with state law defamation

principles previously outlined. Unless the holding is based on federal

constitutional limitations, it conflicts with the Texas Constitution’s express

guarantee of the right to bring reputational torts and the Texas libel statute. See

Turner, 38 S.W.3d at 116-117 (broader protection of speech cannot come at the

expense of a defamation claimant's right to redress).

The Burbage court signaled that its holding is based on federal

24

constitutional limitations and, at the same time, recognized (but did not have

occasion to apply) the malice exception to those limitations, as follows:

[J]udicial review of jury discretion remains important to protect free

speech. See id. We must ensure that noneconomic damages

compensate for actual injuries and are not simply "a disguised

disapproval of the defendant." Id .; see also Gertz v. Robert Welch,

Inc ., 418 U.S. 323, 350, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974)

("[T]he private defamation plaintiff who establishes liability under a

less demanding standard than [knowledge of falsity or reckless

disregard for the truth] may recover only such damages as are

sufficient to compensate him for actual injury.").

Burbage, 447 S.W.3d at 259 (emphasis added).

The Hancock court likewise recognized (but did not have occasion to apply)

the malice exception to federal constitutional limitations on presumed damages. In

Hancock, the jury found that the defendant had acted with actual malice.

400 S.W.3d at 71. However, because the court found the statement at issue was

not defamatory per se, the court conducted a review of the evidence supporting

damages. Id. at 68.

But, the Hancock court made it clear that it would not have conducted an

evidentiary review (made it clear that supporting evidence would not have been

required) had the statement at issue been defamatory per se. For example, the court

held: "Because Hancock's statements were not defamatory per se, loss of

reputation may not be presumed, and there must be competent evidence to support

25

this award of reputation damages." 400 S.W.3d at 70 (emphasis added). Similarly,

the court observed: "For statements not so injurious as to constitute defamation

per se, the plaintiff may only recover the damages she proves the statements

actually caused (as well as exemplary damages if applicable).” Id. at 71 (emphasis

added).

Longoria’s reputation and mental anguish damages are presumed. Cf. Carey

v. Piphus, 435 U.S. 247, 262-263 (1978) (statements that are defamatory per se by

their very nature are likely to cause mental and emotional distress, as well as

injury to reputation, so there arguably is little reason to require proof of this kind

of injury).

I-C. Any Review of Damages Should Be Limited

If a review of general damages is required, then such a review should

be limited to the issues of whether damages are either excessive or the

product of improper influences. Because injury is presumed from the nature of

the defamatory statement, an award of presumed general damages should not be

subjected to the evidentiary review applicable to an award of special damages

(which are not presumed). Consider the following:

Because Tranum's statements were slanderous per se,

Broadway was not required to present "independent proof" of mental

anguish,"as the slander itself gives rise to a presumption of these

damages. The amount of damages in a defamation case is peculiarly

26

within the province of the fact-finder, and an appellate court will not

disturb the verdict or award unless it appears from the record to be

excessive or the result of passion, prejudice, or other improper

influences.

***

The record in this case does not indicate that the jury's award of

past mental anguish damages in the amount of $ 250,000 is either

excessive or the result of passion, prejudice, or other improper

influence. The amount was within the jury's discretion and we will

not substitute our judgment for that of the jury even if we might have

reached a different result.

***

As a result of Tranum's malicious prosecution, Broadway was

charged with committing the crime of theft. The jury could

reasonably conclude that his reputation was subsequently damaged

and that $ 75,000 is a reasonable amount to compensate for this

damage. See Thrift, 974 S.W.2d at 80-81 ($ 275,000 in reputation

damages for malicious prosecution "reasonable in light of the gross

social stigma attached to criminal charges that Hubbard will be

burdened with both professionally and socially as long as the

indictment remains on her record"). The evidence is legally and

factually sufficient to support the jury's award of damages for injury

to Broadway's reputation.

Tranum, 283 S.W.3d at 422 (emphasis added).

Appellants have provided neither argument nor authority to demonstrate

that Longoria’s general damages award is excessive. Although Appellants assert

that there must be evidence to justify the amount awarded, their analysis is

confined to the argument that there is no evidence of injury to reputation and

mental anguish. However, as noted, injury is presumed.

In any event, Longoria’s damages are not excessive. General damages do

27

not require certainty of actual monetized loss. Waste Management of Texas, Inc. v.

Texas Disposal System Landfill, Inc., 434 S.W.3d 142, 153 (Tex. 2014).

The Tranum court affirmed a $250,000 award of mental anguish damages.

283 S.W.3d at 422. Additionally, in Thrift the defendant was indicted, but the

criminal case was subsequently dismissed, and the court affirmed an award of

$275,000 reputation damages and $150,000 mental anguish damages. See Thrift v.

Hubbard, 974 S.W.2d 70, 76, 81 (Tex.App.–San Antonio 1998, pet. den.).

If part of a damage verdict lacks sufficient evidentiary support, the proper

course is to suggest a remittitur of that part of the verdict. Larson v. Cactus Utility

Co., 730 S.W.2d 640, 641 (Tex. 1987). However, Appellants neither requested nor

proved a basis for remittitur.

I-D. Reputation Damages

Although Longoria's reputation damages are presumed and need not be

shown supported by evidence, Longoria’s reputation damages are

nevertheless supported by evidence.

First, a clarification. Contrary to Appellants’ assertion (Brief,p.6), Longoria

did not say that he was not arrested. Although he testified that he turned himself in

(RR8:202), he did so after being informed of the warrant for his arrest (Appendix6

28

/ PlExh7A). Longoria was arrested and posted bail.79

Indeed, Smith and Marcos told people in the community that Longoria had

been arrested. (RR7:146; RR8:280) They should not now be heard to argue that

Longoria was not arrested.

There is evidence of reputation injury. Appellants themselves introduced

Longoria's affidavit, which provides: "I have suffered humiliation and damage to

my reputation as to those who have learned of the criminal charges brought by

[Appellants]. This damage has hurt my ability to access property and work for

various farmers and ranchers." (Appendix1 / PlExh14A-15) This unchallenged

affidavit alone constitutes some evidence of reputation injury.

Appellants argue that Longoria cannot identify anyone who has refused to

hire him as a result of the theft accusation. They observe that nobody told him his

reputation has been damaged.

However, life doesn’t work that way. Common sense says that people are

not motivated to tell a person: “Your reputation has tanked as a result of those

theft accusations.” Common sense says that people aren’t going to tell someone, “I

was thinking about hiring you but have decided not to because of those theft

accusations.” Cf. Southwestern Tel. & Tel. Co. v. Long, 183 S.W. 421, 428

79

(Appendix6 / PlExh7A; RR7:107; RR8:202,262)

29

(Tex.Civ.App.–Austin 1915, no writ) (any person with sufficient intelligence to be

guilty of slander ought, in the light of common experience, to anticipate the

repetition of such slander, and the injurious consequence thereof). Consequently,

damage to reputation must to a great extent be proved circumstantially. Cf. In re

Lipsky, 2015 Tex. LEXIS 350, at *14 (all evidentiary standards recognize the

relevance of circumstantial evidence).

The evidence shows that Longoria lost business as a result of reputation

injury. Marcus' neighbor, who had known Longoria for 20-25 years, testified that

as of the time of the deconstruction Longoria had done a lot of work for

Appellants "as well as surrounding folks for a long, long time."80 The neighbor

knew Longoria to be a "good worker." (RR6:191)

Longoria arrived at the House on March 11th to find his workers being

detained with their hands in the air. (RR8:252-253; Appendix6 / PlExh7A) This

occurred in the presence of at least one of Marcus’ neighbors. (Appendix6 /

PlExh7A)

Appellants accused Longoria of theft and as a result Longoria was arrested.

(Supra pp.7-8) Smith also submitted a report to the grand jury and a claim to the

80

(RR6:154,168-169,183-184)

30

insurance company - accusing Longoria of theft.81

People who knew Longoria could connect him to Appellants’ reward ads

(which alleged a theft). For example, one person showed Longoria the ads and

said, "Look what's going on over there, what they're trying to do." (RR8:241-242;

RR9:18)

Smith and Marcus told people in the community that Longoria had been

accused of theft and arrested.82 Smith did not deny that Longoria, up to that point,

had a “great reputation.” (RR7:145-146)

Longoria testified that he became aware that other people were treating him

differently. (RR8:262) Longoria further testified:

Q. You claim to have lost jobs that were lined up as a result of your

arrest, true?

A. That's true. My -- my work went down significantly, yes.

(RR8:202)

Q. Going back to your reputation, you can't identify anyone who says

or who has told you that your reputation has been damaged in any

way whatsoever, true?

A. Nobody have to come and tell me, Mr. Garcia. I can feel it.

Q. No one has told you that your reputation has been damaged, true?

A. No, not -- no.

(Appendix11 / PlExh25; Appendix8 / PlExh29;

81

RR7:73-75,110-111,148-150)

82

(RR7:145-146; RR8:280)

31

Q. Who has -- I'm going to page 96 [of Longoria’s deposition].

Question: "Who says that your reputation has been damaged? Can

you give us the name of someone that says your reputation has been

damaged?" "I mean, if anybody would come and tell me, I would tell

you, but ain't nobody going to come and tell me."

No one has told you, true?

A. It's -- this is what happened, no. But, you know, like -- like -- like I

tell you, ain't nobody going to come and tell me this is what happened

with me. That's why you don't get the work I've been getting.

(RR8:213-214)

Most significantly, when asked whether there could be other reasons,

reasons other than the theft accusation and arrest, as to why people might not want

to hire him, he answered: “Yes. The thing is, all of a sudden it's happened and

never happened before so, you know.” (RR8:202-204) Later, he clarified that he is

not aware of any reason, other than the theft accusation and arrest, that he would

not be hired. (RR8:202-205)

The inference that Longoria lost business as a result of reputation injury

does not violate the equal inference rule. That rule provides that a jury may not

reasonably infer an ultimate fact from meager circumstantial evidence which could

give rise to any number of inferences, none more probable than another. Hancock,

400 S.W.3d at 70-71.

Here, the inference is supported by strong circumstantial evidence. Longoria

had done business in the rural community for a long time, he was known to be a

32

good worker with a good reputation, the theft accusation and arrest was publicized

within the community, and thereafter he suddenly lost jobs that had been lined up.

Longoria lost business as a result of reputation injury. See McGregor v. Vela, 2002

WL 220072, *13-14 (Tex.App.–Austin 2002, no pet.) (though some evidence

supports view that plaintiff's business losses were due to market conditions and

not to damage to his reputation, the record contains legally and factually sufficient

evidence to support the jury's award).

The timing of Longoria's business loss is significant. Longoria testified that

the business loss happened all of a sudden - and that it had never happened before.

(RR8:202-204) See City of Keller v. Wilson, 168 S.W.3d 802, 821 (Tex. 2005)

(even if evidence is undisputed, it is the province of the jury to draw from it

whatever inferences they wish, so long as more than one is possible and the jury

must not simply guess - thus, in product liability cases jurors may find evidence of

a defect from subsequent modifications, even if there were plenty of other reasons

for the changes).

Within the realm of circumstantial evidence, timing is huge. Cf. Guillaume

v. City of Greenville, 247 S.W.3d 457, 464 (Tex.App.–Dallas 2008, no pet.) (in

whistleblower case, the timing of defendant's conduct in relation to plaintiff's

speech can be circumstantial evidence of a retaliatory motive); Simon &

33

Schuster v. Dove Audio, 970 F. Supp. 279, 295 (S.D.N.Y. 1997) (the timing of

defendant's publications in relation to plaintiffs' publications strongly supports an

inference of deliberate plagiarism); SEC v. Singer, 786 F. Supp. 1158, 1164

(S.D.N.Y. 1992) (in context of insider trading claim, circumstantial evidence such

as suspicious timing of trades is a factor relevant to proving that tipping activity

has occurred); In re Reese, 402 B.R. 43, 51 (Bankr. M.D. Fla. 2008) (the timing of

debtor's filing can evidence an intent to delay or frustrate the efforts of secured

creditors to enforce their rights).

In Hancock, the timing factor was less clear. Moreover, the Hancock court

was procedurally precluded from considering Variyam’s demotion as evidence of

reputation injury. 400 S.W.3d at 70.

Regarding Variyam’s denial of accreditation for a fellowship, the Hancock

court observed that Variyam offered no evidence that the inference regarding the

defamatory letter was more probable than other possible inferences. Id. at 70-71.

However, Variyam was not shown to have had any right to the accreditation. In

contrast, Longoria “lost jobs that were lined up." (RR8:202)

Other cases cited by Appellants can be distinguished on the basis that

Longoria (unlike plaintiffs in the other cases) sought only general (non-economic)

damages and consequently was not required to present evidence of a specific

34

dollar loss. Actual or compensatory damages are intended to compensate a

plaintiff for the injury incurred and include general damages (which are

non-economic damages such as for loss of reputation or mental anguish) and

special damages (which are economic damages such as for lost income). Hancock,

400 S.W.3d at 65.

Longoria sought and the jury found general / non-economic damages

(reputation and mental anguish damages). (RR8:203; CR:1052-1053) These

damages do not require certainty of actual monetized loss. In Waste Management,

the Supreme Court observed:

Non-pecuniary harm includes damages awarded for bodily

harm or emotional distress. Similar to general damages, these

non-pecuniary damages do not require certainty of actual monetized

loss. Instead, they are measured by an amount that a reasonable

person could possibly estimate as fair compensation. Conversely,

damages for pecuniary harm do require proof of pecuniary loss for

either harm to property, harm to earning capacity, or the creation of

liabilities.

434 S.W.3d at 153 (footnotes and punctuation omitted).

The Burbage case (relied on by Appellants) can be distinguished because in

Burbage the court was reviewing an award of economic damages and,

consequently, the court was looking for evidence which supported an award of a

specific dollar loss. See Burbage, 447 S.W.3d at 261 n.6 (Kirk seeks economic

damages, being the business’ lost value, which are distinct from the noneconomic

35

damages that are presumed in a defamation per se case - Kirk did not plead these

special damages and certainly has not proven them).

Appellants also rely on Waste Management, but the Burbage court observed

that the Waste Management court had likewise reviewed economic damages.

Burbage, 447 S.W.3d at 260-61 (therein, plaintiff sought lost profits and a

decrease in base business, which are not the sort of general damages that

necessarily flow from a defamatory publication).

Thus, Burbage and Waste Management are not analogous. Because

Longoria obtained general (non-economic) damages, he did not have to produce

evidence of actual monetized loss. See Waste Managment, 434 S.W.3d at 153

(quoted above).

Although Longoria relies on business loss to prove that his reputation had

been injured (people being reluctant to deal with him because he had been accused

of theft), Longoria nevertheless proved general (non-economic) damages because

the injury (reputation damages caused by theft accusation) was personal to

Longoria and was not particularized to Longoria’s economic interest. See Medical

v. Wikle, 2013 WL 2390103, *11-12 (Tex.App.–Amarillo 2013, no pet.) (lost

business opportunities and other business-related injury held to constitute some

evidence of non-economic damages recompensing an injured reputation); cf. In re

36

Lipsky, 2015 Tex. LEXIS 350, at *19-20 (defamation action chiefly serves to

protect the personal reputation of an injured party while business disparagement or

injurious falsehood applies to derogatory publications about the plaintiff's

economic or commercial interests); Williamson v. New Times, Inc., 980 S.W.2d

706, 710-711 (Tex.App.–Fort Worth 1998, no writ) (if damages alleged are

primarily personal and general--e.g., injury to personal reputation, humiliation, or

mental anguish--then cause of action is one for libel or slander, even though

incidental or consequential professional losses are also proved).

I-E. Mental Anguish Damages

Although Longoria's mental anguish damages are presumed and need

not be shown supported by evidence, Longoria's mental anguish damages are

nevertheless supported by evidence.

If for no other reason, the mental anguish damages award should be

affirmed because Appellants have neither argued nor demonstrated that the

evidence fails to meet the standard which was submitted to the jury. The jury

charge sets the standard by which the evidence is measured. Burbage, 447 S.W.3d

at 260. It is the court's charge, not some other unidentified law, that measures the

sufficiency of the evidence when the opposing party fails to object to the charge.

Id.

37

Appellants argue the Parkway standard of review:

[A]n award of mental anguish damages will survive a legal

sufficiency challenge when the plaintiffs have introduced direct

evidence of the nature, duration, and severity of their mental anguish,

thus establishing a substantial disruption in the plaintiffs' daily

routine.

Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995).

However, the Parkway court applied this standard expressly because it was

deemed to give effect to a definition of mental anguish with which juries were

commonly charged. See 901 S.W.2d at 444 (observing that the definition is the

only guidance given by trial courts to juries).

The Parkway court identified the definition as follows:

The term "mental anguish" implies a relatively high degree of

mental pain and distress. It is more than mere disappointment, anger,

resentment or embarrassment, although it may include all of these. It

includes a mental sensation of pain resulting from such painful

emotions as grief, severe disappointment, indignation, wounded

pride, shame, despair and/or public humiliation.

Id. The court characterized this as “a confounding definition of mental anguish”

and “an admittedly nebulous definition.” Id.

Here, Longoria’s jury was not charged with this “confounding” and

“nebulous” Parkway definition. Longoria’s jury was not given any definition of

the term “mental anguish.” (CR:1052-1053)

Because the jury was not given the Parkway definition, Appellants’ only

38

argument (being that the evidence fails to meet the Parkway standard of review -

which is based on the Parkway definition) cannot establish reversible error. For

that reason alone, Appellants’ evidentiary challenge should be overruled. See Ford

v. Premier Installation & Design Group, Inc., 2013 WL 4680513, at *25-26

(Tex.App.–Hou. [14th Dist.] 2013, no pet.) (overruling evidentiary complaint

because Ford does not argue that the evidence is legally or factually insufficient to

support the damage finding under the measure of damages submitted to the jury).

Moreover, Appellants have not demonstrated that the evidence is legally or

factually insufficient to support the mental anguish standard which was actually

submitted to the jury. Parkway’s confounding and nebulous “relatively high

degree of mental pain and distress” standard is neither commonly understood nor

universally applied and, consequently, in Longoria’s case the term “mental

anguish” should be construed to encompass mental pain or distress of any degree.

Cf. Moore v. Lillebo, 722 S.W.2d 683, 688 (Tex. 1986) (in context of wrongful

death claim, jury should be instructed that mental anguish is “the emotional pain,

torment, and suffering that the named plaintiff would, in reasonable probability,

experience from the death of the family member”). Damages awarded for mental

anguish do not require certainty of actual monetized loss. Waste Management, 434

S.W.3d at 153.

39

In any event, the evidence meets the Parkway standard. Appellants

themselves introduced Longoria's affidavit, which provides: "I have suffered

humiliation and damage to my reputation as to those who have learned of the

criminal charges brought by [Appellants]." (Appendix1 / PlExh14A-15/emphasis

added) By definition, this statement alone constitutes some evidence of mental

anguish. See Parkway, 901 S.W.2d at 444 (mental anguish includes sensation of

pain resulting from public humiliation).

Additionally, the mere anticipation that slander will be repeated causes

mental suffering. Southwestern Tel., 183 S.W. at 428. Such anticipation is

evidenced by Longoria’s testimony about reputation damage: “Nobody have to

come and tell me, Mr. Garcia. I can feel it. ” (RR8:213-214/emphasis added)

And there is more - but first another clarification. The following assertion is

not supported by the record: “[Longoria] testified that he is in a bad mood

sometimes, but he can still get up and do his daily activities and it did not disrupt

those daily activities.” (Brief,pp.6,24-25)

Contrary to this representation, at trial Longoria testified as follows:

Q. This alleged emotional distress never caused you any kind of illness or physical sympto

A. Ask my wife, I stay in a bad mood.

Q. The emotional distress never caused you any kind of illness or physical symptoms, true

A. True.

Q. It did not disrupt your daily activties, true?

A. It did disrupt my daily activities.

40

(RR8:215/emphasis added)

Although Longoria agreed that this trial testimony differed in some respects

from his deposition testimony (RR8:215-216), it is presumed that the jury

accepted Longoria’s trial testimony. See City of Keller, 168 S.W.3d at 821

(reviewing courts presume jurors resolved conflicting evidence in favor of

prevailing party).

Furthermore, the foregoing reference to “ask my wife” raises an inference

that Longoria’s emotional distress created marital discord. “[E]vidence of marital

discord, even if brief in nature, can be sufficient to show a substantial disruption

in daily routine over and above mere worry, anxiety, vexation, embarrassment, or

anger.” Wyler Indus. Works v. Garcia, 999 S.W.2d 494, 509 (Tex.App.–El Paso

1999, no pet.) (emphasis added).

Thus, so far, applying the Parkway standard, there is direct evidence of:

-Nature of mental anguish: bad mood coupled with humiliation and

anticipation that the slander will be repeated.

-Duration of mental anguish: all the time (stays in a bad mood).

-Severity of mental anguish: bad enough to be noticed by Longoria’s

wife, create marital discord, and disrupt Longoria’s daily activities.

And, the duration of Longoria’s mental anguish is further evidenced by

other testimony. For example, Longoria testified: “Carry something you didn't do

41

for six-and-a-half years and see how you feel” and "it's something that stays with

you even if you did it or not." (RR8:214/emphasis added)

This testimony also infers deep pain and despair. See Parkway, 901 S.W.2d

at 444 (mental anguish includes mental sensation of pain resulting from such

painful emotions as despair). Longoria also testified, “It's not fair what they done

to me.” (RR8:201)

In this regard, the court reporter didn’t capture the look on Longoria’s face

or the emotion in his voice. The jury saw and heard Longoria testify. The jury’s

mental anguish damages are due deference.

It is within the jury's province to judge the credibility of

witnesses and the weight to be given their testimony. This is

especially true regarding claims for mental anguish, which are

necessarily speculative claims and, thus, should be left to a jury for

determination. Part of the proof in a case includes the witnesses

themselves, their demeanor, their voice modulation, and the gut

feeling they project to the jurors. These are aspects of a case to which

an appellate judge has no access.

Texas Farm Bureau Ins. Cos. v. Sears, 54 S.W.3d 361, 376 (Tex.App.–Waco

2001) (deleting authority and punctuation, adding emphasis), rev’d o.g., 84

S.W.3d 604, 613 (Tex. 2002) (finding no evidence that defendant's conduct was

extreme and outrageous and thus finding no basis for intentional infliction of

emotional harm claim); see City of San Antonio v. Heim, 932 S.W.2d 287, 296

(Tex.App.–Austin 1996, pet. den.) (jurors are best positioned to determine from

42

their own experience the extent to which a defendant's conduct caused

compensable mental anguish).

This Court can get only a small inkling of Longoria's emotions, the tension

in his voice, by listening to the audio recording of his voluntary statement

(PlExh8B-1) - given to Deputy Ivy on the day that Longoria’s workers were

detained at the House. (transcribed statement is in PlExh8B-1) Note in particular

Longoria’s exasperation when he underscores the fact that he had no idea that

Marcus was going to "change her mind," given the fact that she had voiced no

complaint when she examined the tin in Longoria’s yard. An employee had told

Longoria about Marcus’ visit. (RR8:253-254)

Similarly, Longoria’s testimony about arriving at the House on March 11th

evidences humiliation and indignation:

Q. What did you find when you got there?

A. All of my guys with their hands up in the air like they could kill

somebody, like criminals. And I was mad. And I told the sheriff, I

said, look, these people work for me.

(RR8:252-253) Regarding indignation, in responding to Smith’s trial questions

Longoria stated, “I used to call you amigo, but I ain't going to call you that no

more.” (RR8:295)

The Parkway court recognized that mental anguish can be proved

circumstantially:

43

When claimants fail to present direct evidence of the nature,

duration, or severity of their anguish, we apply traditional "no

evidence" standards to determine whether the record reveals any

evidence of "a high degree of mental pain and distress" that is "more

than mere worry, anxiety, vexation, embarrassment, or anger" to

support any award of damages.

901 S.W.2d at 444.

And, the Parkway standard need not be met in a certain category of cases in

which mental anguish damages are presumed - including those involving events

which pose a threat to reputation:

[S]ome types of disturbing or shocking injuries have been found

sufficient to support an inference that the injury was accompanied by

mental anguish. As a general matter, though, qualifying events have

demonstrated a threat to one's physical safety or reputation or

involved the death of, or serious injury to, a family member.

Parkway, 901 S.W.2d at 445 (emphasis added); see Capps v. Nexion Health at

Southwood Inc., 349 S.W.3d 849, 871-872 (Tex.App.–Tyler 2011, no pet.)

(holding, in retaliatory discharge action, that wrongdoing which threatens a

person's reputation is sufficient to support an inference that the resulting injury

was accompanied by mental anguish); Rogers v. City of Fort Worth, 89 S.W.3d

265, 284 (Tex.App.–Fort Worth 2002, no pet.) (same holding, in whistleblower

action).

Here, the underlying events clearly posed a threat to Longoria’s reputation

and as such independently support an inference of mental anguish. Appellants’

44

theft accusations made Longoria the fall guy in an insurance scheme which

resulted in Longoria’s arrest.83 Almost eight months passed between Longoria’s

arrest and the grand jury’s no bill - during which time Appellants spread the word

of Longoria’s arrest.84

These circumstances alone raise an inference of mental anguish sufficient to

support the award. See Valley Nissan, Inc. v. Davila, 133 S.W.3d 702, 716

(Tex.App.–Corpus Christi 2003, no pet.) (the public humiliation of having one's

truck repossessed provides some evidence to support the jury's finding on mental

anguish); Strong v. Nicholson, 580 So. 2d 1288, 1295 (Miss. 1991) (it may be

inferred that plaintiffs suffered some damages resulting from the mental anguish

and distress associated with being arrested); cf. South Tex. Freightliner, Inc. v.

Muniz, 288 S.W.3d 123, 135 (Tex. App. Corpus Christi 2009, pet. den.) (affirming

award of mental anguish damages in malicious prosecution action where plaintiff

testified that he was tense, sad, had anger, and was embarrassed by arrest and by

weekend in jail); Appendix1 / PlExh14A-15 (Longoria suffered humiliation);

RR8:263 (Longoria was embarrassed).

One court, in affirming an award of DTPA mental anguish damages (failure

83

(Supra,pp.10-18; CR:338-339; RR5:40,57-66; RR6:182-186; RR9:173-175)

84

(Appendix6 / PlExh7A; Appendix9 / DefExh1; RR7:146; RR8:280; RR9:19)

45

to service a mobile home), held as follows:

Our cautious recommendation is that in proving up claims for

mental anguish damages, a detailing of descriptive adjectives may be

required, especially where overall facts inadequately project that

thread of human understanding and emotional feeling, by nature,

common to most. Where however, as here, those overall facts create

such an intensity of commonly shared emotions to which the

factfinder can understand and relate without benefit of prompting, we

impose no requirement for detailing.

Tony Houseman Assocs. v. Couch, 1996 WL 125529, *34-35

(Tex.App.–Beaumont 1996, no writ).

I-F. Exemplary Damages

Because Appellants’ only complaint about exemplary damages is that

they cannot be recovered without an award of actual damages, it follows that

Longoria should recover the exemplary damages awarded if he recovers any

amount of actual damages. See CR:1054-1056 (jury determined exemplary

damages).

46

II. EVIDENCE SUPPORTING ATTORNEY’S FEES

Longoria’s attorney’s fee award is supported by evidence. Longoria

recovered damages, but his attorney’s fee award is not dependent on a recovery of

damages.

“The availability of attorney's fees under a particular statute is a question of

law for the court.” Holland v. Wal-Mart Stores, 1 S.W.3d 91, 94 (Tex. 1999).

Longoria is entitled to attorney’s fees and costs under the Uniform

Declaratory Judgments Act, which authorizes “the court” to award

attorney’s fees that are equitable and just. CPRC § 37.009.

The original petition included a request for declaratory relief and Appellants

later filed a supplemental petition which incorporated the prior request for

declaratory relief. (CR:9,121-122) The court effectively ordered that Appellants

take nothing on their claim for declaratory relief (Appellants not having been

granted such relief and all requested relief not granted being denied).

(CR:1082-1085)

Longoria pleaded for UDJA attorney’s fees under CPRC § 37.009.

(CR:339) Section 37.009 does not condition an attorney’s fees award on a

recovery of damages.

Appellants’ Brief makes no mention of Section 37.009. Thus, if for no other

47

reason, Longoria’s attorney’s fee award should be affirmed because Appellants

have not attacked all independent bases for the award. See Britton v. Tex. Dep't of

Crim. Justice, 95 S.W.3d 676, 681 (Tex.App.–Hou. [1st Dist.] 2002, no pet.) (if an

appellant does not attack all independent bases or grounds supporting a

complained-of ruling or judgment, then the complaint must be overruled).

Additionally and alternatively, Longoria is entitled to attorney’s fees

and costs under CPRC Chapter 134, the Texas Theft Liability Act (TTLA).

Because Appellants’ Brief makes passing reference (one sentence) to TTLA

attorney’s fees, its application will be addressed in the context of Appellants’

arguments.

Appellants pleaded that Longoria committed theft and sought TTLA

damages. (CR:122). The TTLA provides that a person who commits theft is liable

for the damages resulting from the theft. CPRC 134.003(a).

The TTLA provides that "[e]ach person who prevails in a suit under this

chapter shall be awarded court costs and reasonable and necessary attorney's fees."

CPRC § 134.005(b). Both Longoria and Appellants sought TTLA attorney’s fees.

(CR:122,124,339; RR9:30,48)

Recovery of TTLA attorney’s fees does not depend on an award of

damages. “[T]he Texas Theft Liability Act provides for attorney's fees even

48

without an underlying damages recovery.” In re Corral-Lerma, 451 S.W.3d 385,

386 (Tex. 2014).

The TTLA requires the court to award attorney's fees to a party who

successfully defends a TTLA claim. Air Routing Int'l Corp. v. Britannia Airways,

Ltd., 150 S.W.3d 682, 686 (Tex.App.–Hou. [14th Dist.] 2004, no pet.). The award

of TTLA fees to a prevailing party is mandatory. Arrow Marble, LLC v. Killion,

441 S.W.3d 702, 705 (Tex.App.–Hou. [1st Dist.] 2014, no pet.).

Longoria prevailed on – successfully defended against – Appellants’ TTLA

claim and thus is entitled to TTLA attorney’s fees. When a TTLA claim is

resolved in a manner which precludes a plaintiff’s right to reassert the claim - such

as by application of res judicata - then the defendant has prevailed and is entitled

to recover TTLA attorney’s fees. Arrow Marble, 441 S.W.3d at 707. Res judicata

bars the relitigation of claims that have been finally adjudicated. Daniels v. Empty

Eye, Inc., 368 S.W.3d 743, 754 (Tex.App.–Hou. [14th Dist.] 2012, pet den.).

Appellants’ TTLA claim was finally adjudicated by a take nothing

judgment. Appellants sought TTLA relief, were awarded no TTLA relief, and the

court ordered that all requested relief not expressly granted was denied.

(CR:122,1085) Thus, Appellants’ TTLA claim was resolved in a manner which

precludes Appellants’ right to reassert the claim. Moreover, although not required,

49

Longoria effectively obtained a finding that he had not committed theft.

(CR:1049 - jury found theft accusation was false)

Appellants’ only reference to TTLA attorney’s fees is an argument that

Longoria’s right to TTLA attorney’s fees was waived by the jury’s failure to

answer Jury Question 8 (Appellants’ TTLA liability issue - asking whether

Longoria committed TTLA theft). However, the jury did not reach Question 8

because it was conditioned on a positive response to Appellants’ conversion

issue - which was resolved against Appellants. (CR:1034,1041) Appellants’ failure

to prove their TTLA claim does not preclude an award of TTLA attorney’s

fees - indeed, as was demonstrated, it serves as the basis for a TTLA attorney’s fee

award.

With neither argument nor authority, Appellants argue in a footnote that

there is no “legal basis” for the jury to have answered Jury Question 11

(Longoria’s attorney’s fee issue) - given that the answer was conditioned on a “no”

response to Question 8 (TTLA theft) which question, as noted, was not reached by

the jury.

The "legal basis" for the jury’s answer to Question 11 is the court's

instruction. After receiving a note from the jury, the court determined that

Question 11 was improperly predicated and thus instructed the jury to answer

50

Question 11. (RR9:194-196; SuppCR42) Appellants have not shown any abuse of

discretion in the giving of this instruction. See TRCP 286 (after having retired, the

jury may receive further instruction from the court).

Longoria’s attorney’s fee award is supported by evidence. With little

and often no argument or authority, Appellants shotgun a number of complaints

about the evidence supporting Longoria’s attorney’s fees, including complaints

about a failure to provide attorney hours worked and a general failure to provide a

basis for reasonableness.

Appellants complain that Longoria’s counsel presented no evidence

regarding attorneys’ fees other than by stating that Longoria had a one-third

contingent fee agreement. (Brief,p.26) To the contrary, counsel presented

evidence - much of it coming from the lips of Appellants’ counsel.

Longoria testified that he and his counsel had entered into a fee agreement

whereby counsel would be paid 1/3 of any recovery. (RR8:275-277) Longoria

asked the jury to add 1/3 additional as attorney’s fees on top of whatever he is

awarded. (RR8:277) Longoria testified that employing counsel at an hourly rate

was not financially feasible. (RR8:277) In this Court, Appellants have not

mentioned - much less complained about - Longoria’s testimony.

Appellants’ counsel Garcia testified that he had practiced law for 11 years,

51

that he was paid a flat fee of $7,500 up front, and that he will get 40 to 45 percent

of any recovery (with his client paying expenses). (RR9:43,48-50) Garcia testified

that an appellate fee of $30,000 to the court of appeals, and $20,000 to the

Supreme Court, would be reasonable, necessary, and customary. (RR9:47)

Garcia acknowledged: that Longoria’s counsel Blanks has practiced law for

39 years and Longoria’s counsel Torrey had practiced law for 38 years; and, that

Blanks has been board certified for 34 of those 39 years. (RR9:48-49) Garcia

agreed that during the course of the litigation “it's pretty much been an equal

process” in that one side would file a motion then the other side would respond;

“we take your depositions, you take ours.” (RR9:50)

Garcia testified that Rule 1.04 requirements (which he equated with Lone

Star requirements - perhaps a misnomer)85 are designed to determine a fair

attorney’s fee. (RR9:49) The Supreme Court has identified these Rule 1.04

requirements as being factors that a factfinder should consider when determining

the reasonableness of a fee. See Arthur Andersen & Co. v. Perry Equip. Corp., 945

S.W.2d 812, 818 (Tex. 1997) (listing requirements); PlExh16D & PlExh16E

85

It seems probable that the court reporter thought that the attorney said “Lone Star

requirements” when he actually referenced the “lodestar requirements.” See Arthur Andersen &

Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (referencing the lodestar method of

awarding attorney’s fees). In any event, from the context it is clear that record references to

“Lone Star requirements” are intended to be a shorthand reference to Rule 1.04 requirements.

(RR9:49)

52

(summarizing). These Rule 1.04 requirements correspond to the factors which the

jury was instructed to consider in determining Longoria’s attorney’s fee. See Jury

Question 11 (CR:1044).

Garcia also testified:

Q. [BLANKS] If we go down the Lone Star requirements again – and

I'll do those if we need to -- wouldn't you think that with our

experience and certifications and knowing that it's a punch/counter

punch in this case, that if you meet the Lone Star requirements, Mr.

Torrey and I would, as well?

A. [GARCIA] I would suspect so.

Q. Okay. And the only difference as far as the contingency goes, and

I'm not faulting you, but you have a 40/45 and Mr. Torrey has

testified that we have a one -- Mr. Longoria that we have a one-third

-- flat one-third, it doesn't change?

A. That's my understanding, yes.

Q. So if you're testifying at 40/45 is appropriate, and I have no

problem with that, certainly one-third would also be an appropriate

fee structure?

A. A one-third fee structure is an appropriate fee structure, yes.

Different considerations, but yes.

Q. And if it's going to cost your side 30,000 to appeal to the first level

and another 20,000 to the Supreme Court, we don't even know who

might be doing that appeal at this point, right?

A. True.

Q. So when you say appeal, that's whether you win the case and

appeal or lose the case and appeal, right? If you win the case, you

don't appeal.

A. I'm sorry, you lost me.

Q. Lose the case, you appeal, or if you win the case and have to

answer the other side, the fee remains the same, 30 and 20?

A. Generally, yes, those are customary fees.

Q. And that is, again, a goose/gander, if that's a permissible and fair

fee for you, it would be for our side, as well?

A. Yes.

53

(RR9:50-51) (emphasis added)

Appellant Smith (representing himself pro se) testified, “I'm asking for the

attorney's fees, if necessary on appeal, that Mr. Garcia and Mr. Blanks, Mr. Torrey

have talked about. I believe that those fees are reasonable and customary.”

(RR9:56) (emphasis added)

Appellants don’t mention, much less complain about, any of this testimony.

Garcia conceded that Longoria’s counsel’s one-third contingent fee “is an

appropriate fee structure.” (RR9:50) Garcia further testified that this contingent

fee and the $50,000 for appeal is a “permissible and fair fee” for Longoria’s

attorneys. (RR9:50-51) This alone supports Longoria’s attorney’s fees.

Moreover, Garcia’s Rule 1.04 concession (that the Rule 1.04 requirements

were satisfied) bolsters this evidence. See Southwest Grain Co. v. Garza, 2007 WL

1087179, at *39-40 (Tex.App.–Corpus Christi 2007, pet. den.) (affirming a

contingent fee award supported by testimony satisfying the Rule 1.04

requirements). Here, Longoria’s counsel offered to prove up the Rule 1.04

requirements, “I'll do those if we need to.” (RR9:50) However, the need to do so

was obviated when Garcia conceded that Longoria’s counsel would meet those

requirements. (RR9:50)

Appellants’ Brief makes no reference to Rule 1.04. Although they complain

54

about a failure to produce attorney time records and a failure to prove the hours

spent on each task, they offer no authority for such a requirement and ignore

Garcia’s Rule 1.04 concession. (Brief,p.26)

Although Appellants argue that “Longoria’s counsel presented no evidence

regarding attorneys’ fees other than by stating that he had a one-third contingent

fee agreement,” they do not argue that the attorney’s fee award cannot be based on

proof of such an agreement. (Brief,p.26-emphasis added)

The jury determined Longoria's trial attorney’s fees to be an amount that

totals slightly less than one-third of Longoria's damages and determined

Longoria’s appellate attorney’s fees to be the amount proved up by Garcia and

Smith. (CR:1044,1052-1053) The court awarded these amounts. (CR:1083-1084).

The award is supported by the evidence.

Any failure to apportion attorney’s fees does not require reversal. In the

middle of a compound sentence stating three complaints, without any argument or

authority, Appellants assert that Longoria’s counsel “did not apportion the fees

between the causes of action on which attorney’s fees are recoverable . . . .”

(Brief,p.26)

By Jury Question 11, the jury was broadly asked to find a fee for the

services of Longoria’s attorneys. (CR:1044) The jury was not instructed to limit

55

consideration to any particular claim or theory. If Longoria had apportioned his

attorney’s fees between claims, the jury would not have known how to apply such

an apportionment. Thus, any failure to apportion was harmless.

Additionally, the apportionment complaint was waived by Appellants’

failure to timely and specifically object to Question 11's broad scope and,

additionally, by Appellants’ failure to obtain a ruling on any such objection. See

Matthews v. Candlewood Builders, Inc., 685 S.W.2d 649, 650 (Tex. 1985)

(complaint about failure to apportion fees was waived where jury issue broadly

requested jury to find attorney’s fees for the entire case, rather than separately

allocating the fees to each claim); TRCP 274 (complaint is waived unless party

objecting to charge points out distinctly the objectionable matter and the grounds

of the objection - no objection to one part of charge may be adopted and applied to

any other part of the charge by reference); TRAP 33.1 (as prerequisite for

presenting complaint for appellate review, record must show both a timely

objection and ruling).

Absent an objection to the form of the jury question, any complaint about

the sufficiency of the evidence to support an attorney’s fee determination is based

on the determination as a whole. Miranda, 390 S.W.3d at 552. Non-apportioned

attorney's fees for the entire case are some evidence of what the apportioned

56

amount should be. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314

(Tex. 2006).

Moreover, Appellants’ counsel Garcia conceded that the one-third

contingent fee and the $50,000 for appeal is a "permissible and fair fee" for

Longoria’s attorneys. (RR9:50-51) Garcia did not draw any distinctions about

claims that will, or will not, support an award of attorney’s fees.

Furthermore, Longoria’s counsel was not required to apportion fees -

because the record shows that counsel’s services advance all claims such that they

are inextricably intertwined and cannot be apportioned. When discrete legal

services advance both a recoverable and unrecoverable claim, then the services are

so intertwined that they need not be apportioned. Tony Gullo, 212 S.W.3d at

313-314.

All of Longoria's counsel's services (both in prosecuting and defending

claims) furthered a defense of the TTLA claim. Longoria is entitled to an award of

TTLA attorney’s fees and the issue which is central to that claim - whether

Longoria committed theft - is an issue common to every other claim and defense

asserted by Longoria and Appellants.

In this regard, Appellants concede that the theft accusation is central to all

theories and defenses. (Brief,p.17) Moreover, Appellants’ counsel Garcia, in

57

proving up his own attorney’s fees, relied on the “inextricably intertwined”

argument in testifying that it was not possible to separate out attorney’s fees

attributable to one claim or the other. (RR9:48)

Any failure to condition appellate attorney’s fees on success does not

require reversal. The record does not show that the complaint (about failure to

condition appellate attorney fees on success) was preserved - does not show that

the complaint was presented to or ruled on by the trial court. See TRAP 33.1.

Even if the complaint had been preserved, any error could be cured by modifying

the award and conditioning appellate attorney’s fees on a successful outcome. See

R & R Res. Corp. v. Echelon Oil & Gas, 2011 Tex. App. LEXIS 295, at *43

(Tex.App.–Austin 2011, pet. den.).

58

III. CHALLENGE FOR CAUSE

Appellants complain that three veniremembers challenged for cause served

on the jury.

III-A. Complaint Not Preserved

Appellants failed to preserve complaint about the trial court’s ruling on

their challenge for cause. “[T]o preserve error when a challenge for cause is

denied, a party must use a peremptory challenge against the veniremember

involved, exhaust its remaining challenges, and notify the trial court that a specific

objectionable veniremember will remain on the jury list.” Cortez ex rel. Estate of

Puentes v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 90-91 (Tex. 2005), citing

Hallett v. Houston Northwest Medical Center, 689 S.W.2d 888, 890 (Tex. 1985).

The record does not show that Appellants followed this procedure (herein “the

Hallett procedure” or “the Hallett objection” or “the Hallett notice”).

Appellants’ brief does not reference the Hallett procedure. Appellants do

note that they requested additional strikes. In this regard, the record shows that

immediately after the challenge for cause was denied, there was an exchange

between Appellants’ counsel and the court:

[THE COURT]: And so I -- I'm just concerned about the confusion

created by some of the questioning, which I think you can clear up in

opening statements. But I don't think there's been a showing here of

any appropriate cause so I'm going to deny the challenges for cause

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on the basis -- on those two bases.

MR. SMITH: Your Honor, we would then request more strikes for

additional jurors.

THE COURT: Overruled.

MR. SMITH: We're put in a position where I believe the record is

pretty clear about having to accept jurors that require a higher burden

of proof and a criminal conviction.

THE COURT: I am concerned. I gave you extra time for your voir

dire, just to take this into account and to be able to explore all of

those issues and it was just confined to too short a period of time to

make it clear at the very end. So I'm going to deny the request for

extra strikes.

MR. SMITH: Would the Court at least question the jurors as a whole

before the panel is selected to see? And, of course, comfort zone,

whether or not, you know, I give you the law, this is the law, this is

what's going to happen. Can y'all follow it? Could we at least do that?

THE COURT: I'll be glad to do that.

MR. GARCIA: Are we doing that -- I'm sorry, just to clarify. Would

that be done with this group of specific jurors?

THE COURT: I'll do that right now with the entire panel and then

we'll break for you to exercise your peremptory challenges.

MR. SMITH: Thank you.

(RR4:141-143)

This exchange between Appellants’ counsel and the court will herein be

referenced as the “Exchange.” After the Exchange, the parties then discussed the

procedure by which peremptory challenges would be made, the court then gave

"the instruction as requested by [Appellants]," Appellants made no further request,

and the parties then exercised their peremptory challenges. (RR4:143-147)

Appellants failed to identify (either by name or number) specific

objectionable veniremembers that would remain on the jury list. During the

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Exchange, objectionable veniremembers were not identified. See Cortez, 159

S.W.3d at 90-91 (to preserve error, a party must notify the trial court that a specific

objectionable veniremember will remain on the jury list); Hallett, 689 S.W.2d at

889 (rejecting argument that once a veniremember has been challenged for cause,

the trial court is aware that the person is objectionable to the challenging party).

The only request overruled was a request for "more strikes for additional

jurors." (RR4:141-143) Appellants did not even specify the number of extra

strikes being requested.

If Appellants are deemed to have identified specific objectionable

veniremembers, it was not shown to have been timely done. If the record does not

clearly show that the Hallett notice was timely given, any complaint regarding the

failure to strike for cause is waived. See McCluskey v. Randall's Food Mkts., Inc.,

2004 WL 2340278, at *5 (Tex.App.–Hou. [14th Dist.] 2004, pet. den.) (complaint

waived where record did not clearly show notice was timely given).

The Hallett notice can be given only after the peremptory challenge list has

been prepared. This timing is necessarily implied by the nature of the notice to be

given (that specific objectionable veniremembers would remain on jury list after

peremptory challenges are exercised). One obvious purpose of the notice is to give

the trial court the opportunity to reconsider its ruling in the context of the impact

61

that it actually had, not the impact that the ruling might have, on the jury to be

selected.

The record does not show that the Exchange occurred after Appellants’

peremptory challenge list had been prepared. If anything, the record shows that the

Exchange occurred before Appellants’ peremptory challenge list had been

prepared. The Exchange occurred without interruption immediately after the

challenge for cause was overruled. (RR4:141-142). Additionally, it was after the

Exchange that the parties and court began discussing the procedure by which

peremptory challenges would be exercised. See e.g. RR4:142-143 – court will first

give requested instruction and “then we'll break for you to exercise your

peremptory challenges”.

Appellants failed to exhaust their peremptory challenges on veniremembers

who were challenged for cause. “[T]o preserve error when a challenge for cause

is denied, a party must use a peremptory challenge against the veniremember

involved.” Cortez, 159 S.W.3d at 90.

In this regard, Appellants selectively used one of their peremptory

challenges to strike Veniremember 20 - who was not challenged for cause.

(SuppCR:38; Appellants’ Brief, p.13) But for this peremptory challenge,

62

Veniremember 20 would have served on the jury. (SuppCR:20-28)86 Appellants

could have used, but failed to use, this peremptory challenge to strike one of the

three veniremembers challenged for cause who served on the jury.

Appellants challenged as many as sixteen veniremembers for cause, and

Appellants only had six peremptory challenges, but the Hallett rule required

Appellants to use all of those strikes on veniremembers who were challenged for

cause. See McMillin v. State Farm Lloyds, 180 S.W.3d 183, 194 (Tex.App.–Austin

2005, pet. den.) (McMillins were required to use all six remaining peremptory

challenges on veniremembers they had challenged for cause).

In McMillin, this Court found only partial waiver where a party failed to

exhaust peremptory challenges on veniremembers who were challenged for cause.

However, McMillin did not involve the special “undue advantage” consideration

discussed in the next section.

Additionally, in McMillin the party challenging for cause apparently had

informed the trial court that they would exhaust their peremptory challenges and

apparently had identified specific objectionable veniremembers that would remain

on the panel. Id. at 193-94. As noted, Appellants did not follow the Hallett

86

The conclusion that Veniremember 20 would have served on the jury, but for

Appellants’ peremptory challenge, follows from the fact that the jurors were chosen in numerical

order and from the fact that Veniremembers 21 and 22 served on the jury. (SuppCR:20-26;

Appellants’ Brief, p.15)

63

procedure. See also Williams v. Skelton, 2007 WL 899907, at *3 (Tex.App.–Waco

2007, pet. den.) (complaint not preserved where Williams failed to exhaust

peremptory challenges on veniremembers who were challenged for cause /

distinguishing McMillin on ground that Williams failed to identify specific

objectionable veniremembers that would remain on the panel).

Appellants secured an undue advantage by using one of their peremptory

challenges on a Hispanic-surnamed veniremember who was not challenged for

cause. As noted, the Hallett rule required Appellants to exhaust their peremptory

challenges on veniremembers who were challenged for cause. Appellants violated

the Hallett rule by selectively using one of their peremptory challenges to

eliminate Veniremember 20 - who was not challenged for cause. (SuppCR:38;

Appellants' Brief,p.13)

Both Veniremember 20 and Longoria have Hispanic surnames.

(SuppCR:38) By peremptorily challenging Veniremember 20, Appellants assured

that Veniremember 20 would not be empaneled. As noted, but for this peremptory

challenge, Veniremember 20 would have served on the jury. (SuppCR:20-28)

Appellants also peremptorily challenged the other two veniremembers having

64

Hispanic surnames (Veniremember 9 and Veniremember 24).87 (SuppCR:38)

Appellants repeatedly complain in this Court that the jury was “stacked

against” them. (Brief,p.16-17,31-32) However, it appears that Appellants did the

stacking.

Appellants complain that the court’s cause challenge ruling prevented them

from obtaining a jury to which they were entitled. However, by their own conduct

(in failing to follow the Hallett rule) Appellants obtained a jury to which they were

not entitled (jurors without Hispanic surnames).

Hence, as a matter of equity, Appellants should not be heard to complain

about the court’s challenge for cause ruling. Appellants cannot secure an

advantage by failing to follow the rule and then complain that the rule was not

followed. See Hallett, 689 S.W.2d at 889 (courts have developed the procedure to

be followed when challenge for cause is denied); Smirl v. Globe Laboratories,

Inc., 188 S.W.2d 676, 678 (Tex. 1945) (where courts have established a practice, it

is competent for the courts so to adapt its exercise as to prevent any particular

oppression and to make it yield to the particular circumstances of the case).

87

On their information cards, under “Race,” Veniremembers 9, 20, and 24 all listed

“Hispanic.” (SuppCR:22,26-27)

65

III-B. No Abuse Of Discretion

Even if complaint had been preserved, the court did not abuse its

discretion by overruling Appellants’ challenge for cause.

The error assigned in this Court differs from the complaint made at trial.

Objections on appeal must conform to those made at trial or they are waived.

Knoll v. Neblett, 966 S.W.2d 622, 639 (Tex.App.–Hou. [14th Dist.] 1998, pet.

den.).

When the court asked Appellants to articulate their challenge for cause,

Appellants responded that it was "based upon the . . . preponderance of the

evidence, your Honor, and based upon Mr. Smith's collective questioning when he

went back, they would hold us, I think, all parties to a higher standard."

(RR4:136 - emphasis added) In contrast, in this Court Appellants object that the

jury held only Appellants to a higher standard of proof, as follows: "The jury held

the Shamark Parties to the higher standard of proof of ‘beyond a reasonable

doubt.'" (Brief,p.7)

Having argued in the trial court that the higher standard would be applied to

all parties, Appellants should not be heard to argue in this Court that the

challenged veniremembers applied a different standard of proof to Appellants

only. The distinction is significant, given Appellants’ insistence in this Court that

66

the veniremembers were not confused and Appellants’ insistence that the jury was

stacked against them. (Brief,pp.31-32).

In any event, the challenged veniremembers did not exhibit a bias. The

veniremembers did not express an unequivocal refusal or inability to follow the

court's instructions. They instead exhibited (at worst) confusion,

misunderstanding, and ignorance of the law which ultimately was dispelled

(rehabilitated) by Longoria’s counsel and the trial court.

The Supreme Court has rejected cases holding that once a veniremember

has expressed "bias," further questioning is not permitted and the veniremember

must be excused. See Cortez, 159 S.W.3d at 91 (no such rule). Because trial judges

are actually present during voir dire, they are in a better position to evaluate the

veniremember’s sincerity and his capacity for fairness and impartiality. Id. at 93.

Therefore, trial courts exercise discretion in deciding whether to strike

veniremembers for cause when bias or prejudice is not established as a matter of

law, and there is error only if that discretion is abused. Id.

The challenged veniremembers exhibited (at worst) confusion,

misunderstanding, and ignorance of the law. Several veniremembers expressed

confusion about the standard of proof. See e.g. RR4:79 (don’t understand);

RR4:79 (having trouble understanding); RR4:80-81 - difficulty understanding

67

how “more likely than not” standard is applied; RR4:86-90 - difficulty with

concept of circumstantial evidence.

Appellants specifically complain (Brief,p.31) that after the veniremembers

were read an instruction on preponderance of the evidence, sixteen of them raised

their cards in response to the following:

Now, having given the definition that I believe the Judge will give

you, can you decide this case on preponderance of the evidence, or

are you going to require a different, higher burden of proof for us as

the people bringing the initial lawsuit? Does that help any? So can

you please raise your hand if you require a higher burden of proof, a

number.

(RR4:103)

By raising their cards in response to the question, the sixteen

veniremembers did not express an unequivocal refusal or inability to follow the

court’s instructions. Counsel expressed only a “belief” that the court would give

the instruction on preponderance and did not condition the response on an

assumption that the instruction would in fact be given. Counsel did not ask: “If the

court gives that instruction on preponderance, would you refuse to apply it?”

Thus, at worst the veniremembers’ response indicates a mere preference as

to how the law should be applied. More likely they were just confused.

Veniremembers do not express bias as a matter of law merely by raising their

hands in response to a question. See e.g. Smith v. Dean, 232 S.W.3d 181, 191-92

68

(Tex.App.–Fort Worth 2007, pet. den.) (by raising hands to show agreement with

another veniremember, veniremembers did not show bias as a matter of law).

Also, the question’s reference to “a higher burden of proof, a number” lacks

clarity. The response does not require disqualification as a matter of law. See

Union Pac. R.R. v. Legg, 2009 WL 2476636, at *19 (Tex.App.–Austin 2009, no

pet.) (question had potential to be misconstrued and, therefore, was insufficient to

result in disqualification as a matter of law for a group of veniremembers who

simply raised their hands in response).

Appellants also complain (Brief,p.31) that eight veniremembers held up

their cards in response to the following

MR. SMITH: Let me ask this, the last question I have. Would

everyone or anyone require a criminal conviction in order to award

money in a civil case for theft? Can I see the numbers of those

people? Eight, 9, 12, 13, 31, 26 and 24 and 49.

THE COURT: Thank you, Mr. Smith.

MR. SMITH: Thank you all for sharing.

(RR4:108)

The eight veniremembers did not thereby express an unequivocal refusal or

inability to follow the court’s instructions. Nothing was said about the court’s

instructions. The question was not even particularized to the facts of the case, the

reference being to “a civil case for theft.” The response does not require

disqualification as a matter of law.

69

Any confusion was dispelled (rehabilitated) by Longoria's counsel and the

trial court. See Cortez, 159 S.W.3d at 93 (if a veniremember expresses what

appears to be bias, we see no reason to categorically prohibit further questioning

that might show just the opposite or at least clarify the statement).

Mr. Blanks, Longoria’s counsel, explained that this is a civil case, not a

criminal case: “The standard is different.” (RR4:113) Blanks explained that both

sides are claiming that the other did something wrong and seeking money

damages. (RR4:113-114) Blanks explained that both sides rely on a “more likely

than not” civil standard. (RR4:114)

Blanks then obtained the veniremembers’ commitment to apply the civil

standard of proof, as follows:

The question is -- here we go: Can you listen to the evidence without

prejudging either side, understanding that both sides are saying the

other side did something wrong? And can you use your life's

experiences, your common sense? Can you use those things to sift

through the evidence and simply make a decision about what is more

likely than not to have happened? And that is really the standard,

more likely than not. How can we resolve disputes between people in

this county? That's the standard, by what is more likely than not. And

if you can't reach that decision, if you can't do that, then you say

there's not enough evidence one way or the other, I'm not going to do

it. Burden of proof is your common sense applied to the facts of this

case and you say it's more likely than not Martin or these folks are

telling the truth. When you head out of here, you're going to do that in

every other venue and every other place in your life. Is there a reason

you can't do it here? If you can't do it here, raise your card.

(No response.)

70

(RR4:127-128)

Appellants do not argue that Blanks misstated the law. He did not. See In re

Lipsky, 2015 Tex. LEXIS 350, at *12 (civil cases typically apply the

preponderance-of-the-evidence standard, that is, a fact-finder's determination that

the plaintiff's version of the events is more likely than not true).

Appellants argue that Blanks' rehabilitation “was not specific to the issue of

applying the proper burden of proof to the issue of theft.” (Brief,p.13) However,

Blanks explained that both sides are claiming that the other did something wrong,

explained that both sides rely on a "more likely than not" civil standard, and

explained that the veniremembers would be asked to apply that standard to

determine who is telling the truth. (RR4:113-114,127-128)

Later, in overruling Appellants’ challenge for cause, the court expressed

concern that Appellants’ questioning had confused the veniremembers, observed

that Blanks’ questioning had remedied that confusion, determined that there was

no basis to strike veniremembers for cause, and denied a global nonspecific

request for additional strikes. (RR4:138-141)

Thereafter, Appellants asked the court to further question the

veniremembers “as a whole.” (RR4:142) The court did - and thereby obtained the

veniremembers' commitment to apply the civil standard of proof, as follows:

71

THE COURT: All right. One last question for you before we take our

final break, which is not a lunch break yet, is: You have heard

discussion and questions concerning both civil and criminal cases,

and as I advised you at the beginning of this case, this is a civil case,

and I will advise you at the conclusion of the case and the lawyers

would -- may argue between now and then about the preponderance

of the evidence, which is the standard of proof in a civil case. You

will also hear some testimony about a criminal matter in this case,

which has a different burden of proof and you've also heard some

questioning about that during the voir dire. Is there anyone here who

has an understanding of either a civil or criminal law that will not

allow them to follow the instructions that I as the Court give you

concerning preponderance of the evidence, how that burden of proof

is allocated between the parties and how it is shown? You are the

judges of the facts and you will follow the law as I gave it to you. Is

there anyone here who has -- who thinks they will be unable to follow

the law as I will give it to you at the conclusion of this case?

(No response.)

THE COURT: Absolutely anyone for any reason?

(No response.)

(RR4:145-146)

After this instruction was given, Appellants made no further objection and

the parties exercised their peremptory challenges. (RR4:146-147) As far as the

trial court knew, Appellants were satisfied that the instruction cured any error.

Appellants should not now be heard to argue that the instruction did not cure error

(if any).

Appellants complain without argument or authority that “[t]here was no

individual voir dire of any juror to undermine [SIC] their purported understanding

of the issues.” (Brief,p.31) However, Appellants failed to preserve complaint

72

about a failure to conduct individual voir dire. The record does not show that

Appellants asked the court to individually question the veniremembers and does

not show that any such request was overruled. Thus, complaint was not preserved.

See TRAP 33.1.

More to the point, Appellants are estopped from complaining about a failure

to conduct individual voir dire. The record shows that Appellants got that which

they requested - they asked the court to question the veniremembers “as a whole.”

(RR4:142) See Northeast Texas Motor Lines, Inc. v. Hodges, 158 S.W.2d 487, 488

(Tex. 1942) (a litigant cannot ask something of a court and then complain that the

court committed error in giving it - the litigant is estopped).

Moreover, because the veniremembers’ responses were given as a group

(raised cards), the responses can be rehabilitated in the same manner. See Smith,

232 S.W.3d at 192 (veniremembers who previously had raised their hands in

response to a question could be rehabilitated in the same manner). There was no

abuse of discretion. See Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (trial

judges are given wide latitude both in conducting voir dire proceedings and in

determining whether a panel member is impermissibly partial).

73

PRAYER

Longoria prays:

1. That the judgment be in all matters affirmed.

2. That Longoria recover his damages, attorney fees, and costs.

3. That Longoria have such other relief as to which he has shown himself entitled.

Respectfully submitted,

JAMES DAVID WALKER

P. O. Box 41

Milano, Texas 76556

SBOT 20706000

Phone: (512) 636-9520

Fax: (512) 455-7922

Email: walker@2appeal.com

COUNSEL FOR

MARTIN M. LONGORIA

W.W. TORREY

P.O. Drawer 752

Cameron, Texas 76520

SBOT 20144700

Phone: (254) 697-7013

Email: wwtorrey@torreylaw.net

COUNSEL FOR

MARTIN M. LONGORIA

74

CERTIFICATE OF WORD COUNT

I certify that this document contains 14,923 words (per WordPerfect X6).

CERTIFICATE OF SERVICE

I certify that on June 5, 2015, this document was electronically served on Counsel

for Appellants:

Tracy J. Willi

twilli@willi.com

75

APPENDIX

to

Appellee’s Brief

The Reporter’s Record document volumes are not consecutively numbered.

Reporter’s Record (RR) document references are to PDF page numbers.

Example: RR10:261 is the 261st page in Reporter’s Record Volume 10.

1. Longoria’s Affidavit

PlExh14A-15

RR10:261

2. Longoria’s Voluntary Statement Given to Deputy Ivy

Transcribed

(PlExh8B-2)

RR10:145

The record also contains the Audio recording of this statement, being PlExh8B-1

3. Marcus’ Handwritten Statement

PlExh6B

RR10:134

4. Marcus’ Typed Statement

(differs from handwritten statement)

PlExh6A

RR10:132

5. List of Property Values Submitted to Sheriff

PlEx24

RR11:53

6. Deputy Ivy’s Investigative Report

PlExh7A

RR10:135

7. Deputy Ivy’s Probable Cause Affidavit

PlExh7B

RR10:140

8. Smith’s Grand Jury Submission (Direct File)

PlExh29

RR11:70

9. Grand Jury No Bill

DefExh1

RR12:137

10. Smith’s Sworn Proof of Loss Submitted to Insurance Company

PlExh25

RR11:54

11. Notice of Insurance Claim Reported 3/3/2008

DefExh1

RR12:14

12. Insurance Claim Red Flagged

DefExh1

RR12:64

13. Insurance Claim Paid

DefExh1

RR12:39

14. Jury Charge

CR1031

1. Longoria's Affidavit

PlExh14A-15

RR10:261

Appendix1

CAUSE NO. 32,515

SHAMARK SMITH LIMITED, Partnership IN THE 20TH JUDICIAL

Plaintiff

vs. DISTRICT COURT OF

MARTIN M. LONGORIA

Defendant MILAM COUNTY, TEXAS

AFFIDAVIT

STATE OF TEXAS §

COUNTY OF™- §

rnir.tvh

BEFORE ME, the undersigned authority, on this day personally appeared Martin

M. Longoria, who, being by me duly sworn 1 stated on his oath as follows:

(

My Name Is Martin M. Longoria. I am the Defendant/Counter-Plaintiff in the

above numbered and styled cause. I am over the age of 18 years and am competent to

testify in this matter. I offer the following sworn testimony:

1. l performed contract labor for Sharon Marcus and Paul Smith for several

years before March of 2008, including planting grass, fencing, working

cattle and trapping hogs.

2. I had talked with Paul Smith sometime in 2007 about the old plantation

house. Paul and I were driving by the house and he asked me what I

thought should be done with the house, either tear it down or just burn it.

Then he said that we should talk to his wife, Sharon Marcus, about what to

do with the house. I think that conversation took place around December

of 2007.

3. I had been in the old plantation house a number of times. I used to store

corn for my hog traps inside. About a month after my conversation with

Paul, probably in January of 2008, I w.ent Inside the house to get corn out.

The house was unlocked and there was nothing in the house. All interior

doors were open.

4. In late February 2008, I asked Sharon Marcus what she was going'to do

with the old plantation house. She first told me that the house had no

value and she was going to bulldoze It but then in the same conversation

lj PLAINTIFF'S

ij EXHIBIT ,

~ 14 f.[15 J

I

CL

. ·, ..

she offered to let me have the tin off the house if I would save the lumber

for her. We agreed that I would demoffsh the house on this basis.

5. During the week of February 24. 2008, I ran out of work for my employees

so I sent them to the old plantation house to tear it down. My employees

worked several days that week, generally from around eight In the

moming until around five In the afternoon during which time they removed

the roof and transported the tin from the house to my property located

outside Calvert, Texas. After the roof was removed my employees

continued dismantling the house and as lumber was removed they pulled

the nails out and stacked ft fnsfde and outside the house in plies according

to the kind of lumber that was being removed.

6. The old plantation house sits on an elevated site Just a few hundred feet

off County Road 270 and Is in plain view of the road from several vantage

points. Sharon Marcus's house Is just across the road and only a few

hundred yards from the Plantation House. The two houses are close

enough that sounds such as hammering would clearly carry from one

house to the other.

7. Sometime between March 2, 2008, and March 11, 2008, Ms. Marcus

drove by my home and looked at the tin. She didn't say anything about a

burglary at the old plantation house or that she wanted the tin back.

8. I understand that Ms. Marcus called the sheriffs department out to the old

plantation house on March 2. That was a Sunday and my crew was not

working that day. The roof had been removed from the house and mov~

to my place In Calvert before then.

9. On March 11, 2008, I got a call from one of my workers to come to the

plantation house because the sheriff was there saying that we did not

have permission to tear down the house. I went theie and the deputy

quesUoned me about what was gotng on and I told him about my

agreement with Ms. Marcus. I told him where the tin was and showed him

the piles of stacked lumber which were clearly visible at that time.

10.0lle Ivy, the sheriff's deputy, asked me to go to the Sheriff's office and

while there I gave him a statement and offered to take a polygraph test to

prove my Innocence.

11.At the time we started the demo11tlon. there were no items of personality in

the house other than a couple of old furniture Items which were still inside

the house when the sheriff's office came to the scene on March 11, 2008.

Neither I nor my workers removed anything from the house except for the

tin. Everything other than the tin was still on site on March 11, 2008.

SSL-00818

. .

\ ~

12. The tin I removed from the house Is stlll stacked on my property. No one

has ever claimed the tin or tried to remove It.

13.As a result of the clafms made by all three Counter-Defendants. I have

suffered significant damages. I had to retain Mr. Torrey and pay him to

represent me In the criminal charges the Counter-Defendants had filed

and as well In this lawsuit I then had to retain Mr. Blanks to assist Mr.

Torrey with the defense of this suit as well as the Counter-Claim which is

the subject of this motion. I have missed considerable work in conjunction

with the criminal charges as well as those associated with this case which

has cost me significant Income. I have also suffered humilfatlon and

damage to my reputation as to those who have learned of the crtmlnal

charges brought by Counter-Defendants. This damage has hurt my ablllty

to access property and work for various farmers and ranchers.

Further, afflant sayeth not.

BEFORE ME, the undersigned authority, on this day personally appeared Martin

M. Longoria, known to me to be the person whose name is subscribed to the foregoing

Affidavit. who being by me first duly swom, upon oath stated that the statements

contained therein are true and correct.

SUBSCRIBED AND SWORN T before me this ~ y of October, 2012.

SSL-00819

2. Longoria's Voluntary Statement Given to Deputy Ivy

Transcribed

(PlExh8B-2)

RR10:145

Appendix2

The record also contains the Audio recording

of this statement, being PlExh8B-1

m PLAINTIFF'S

I EXHIBIT

~ 1(B}{-z)

I 1

1 NO. 32,515

2 SHAMARK SMITH LIMITED } IN THE DISTRICT COURT

PARTNERSHIP, )

3 )

Plaintiff. )

4 ) MILAM COUNTY, TEXAS

VS. )

5 )

)

6 MARTIN M. LONGORIA, )

)

7 Defendant ) 20TH JUDICIAL DISTRICT

)

8

9

10

---------------------------------~-------------------~

11

12

13 TRANSCRIPTION OF AUDIO STATEMENT OF

14 MARTIN LONGORIA

15 ON

16 MARCH 11, 2008

17

18

--------------------------------------------------------

19

20

21

22

23

24

25

DAVIDSON REPORTING, INC.

(210) 340-3656

2

1 MR. OLARI: Today's date is March 11th,

2 2008. Current time is 11: 18 a.m. We're at the Milam

3 County Sheriff's Office in Cameron, Texas. Present is

4 Investigator Olari of the Milam County Sheriff's Office

5 and Mr. Martin Longoria.

6 EXAMINATION

7 BY MR. OLARI:

8 Q. And your birth date, Mr. Longoria?

9 A. 8-6-64.

10 Q. 8-6-64?

11 A. Yes, sir.

12 Q. Before we begin I am going to read you your

13 Miranda rights. You're not under arrest, but that way

14 you understand your rights.

15 A. Yes, sir. Yes, sir.

16 Q. Okay. Okay. First off, you have the right to

17 remain silent and not make any statement at all and that

18 any statement you make may be used against you in trial.

19 Do you understand that?

20 A. Yes.

21 Q. Any statement you make may be used as evidence

22 against you in court. Do you understand that?

23 A. Yes.

24 Q. You have the right to have a lawyer present to

25 advise you prior to and during any questioning. You

DAVIDSON REPORTING, INC.

(210) 340-3656

3

1 understand that?

2 A. Yes, sir.

3 Q. If you are unable to employ a lawyer you have

4 the right to have a lawyer appointed to advise you prior

5 to and during any questioning. Do you understand that?

6 A. Yes.

7 Q. You have the right to terminate the interview

8 at any time, and prior to and during the making of this

9 statement you knowingly and intelligently and

1O voluntarily waive the rights set out in this warning.

11 Do you understand that?

12 A. Uh-huh.

13 Q. Okay. What I want you to do right now is take

14 and initial those six spots saying that you understand

15 each and every one of your rights.

16 A. Okay. Okay.

17 MR. OLARI: Note that Mr. Longoria is --

18 Q. (BY MR. OLAR!) I'm -- I'm just talking.

19 A. Uh-huh.

20 MR. OLAR!: Mr. Longoria is initialing.

21 Q. (BY MR. OLARI) Okay. Now, this is a

22 handwritten form, but since we are doing an audio

23 statement I am just going to write on here see attached

24 audio statement because your handwriting isn't that

25 good --

DAVIDSON REPORTING, INC.

(210) 340-3656

4

1 A. Uh-huh.

2 Q. -- not that good and neither is mine.

3 A. Right.

4 Q. How old are you, Mr. Longoria?

5 A. Forty-three.

6 Q. And where were you born at?

7 A. I was born --

8 Q. Well, I am sorry. What's your birth date

9 again?

10 A. 8-8-64.

11 Q. Where were you born at?

12 A. In Acapulco, Mexico.

13 Q. What is your current address?

14 A. It is a P.O. Box --

15 Q. Now, you don't live in a P.O. Box. What's your

16 address?

17 A. It's -- I think I got my glasses -- 204 West

18 Tindall I think. Let me see. Yeah. 105 West Tindall.

19 Q. 105?

20 A. Uh-huh.

21 Q. West Tindall?

22 A. Uh-huh.

23 Q. Calvert?

24 A. Yes, sir.

25 Q. What is your phone number?

DAVIDSON REPORTING, INC.

(210) 340-3656

5

1 A. It's 979 --

2 Q. Uh-huh.

3 A. -- 364 --

4 Q. Uh-huh.

5 A. -- 2056.

6 Q. Okay. And how far did you get in school?

7 A. Well, the third grade, man.

8 Q. Third grade?

9 A. Third grade.

1O Q. And can you read and write the English -- and

11 understand the English language?

12 A. I understand English, but I can't write.

13 can't write.

14 Q. Okay. Sign right there that the statement you

15 are about to give me is true and correct.

16 A. Right here?

17 Q. Yes. Because normally you would be writing it

18 out, but we are just going to do an audio statement.

19 A. Okay.

20 Q. Okay. All right. The address in question is

21 6209 County Road 270. That's the old Snead Plantation,

22 correct?

23 A. Correct.

24 Q. Who owns that property?

25 A. That's Michelle -- Michelle Marcus in my

DAVIDSON REPORTING, INC.

(210) 340-3656

6

1 knowledge.

2 Q. Okay. Do you understand who her husband is?

3 A. Yes. Her husband is Paul Snead.

4 Q. Do you know how long they have owned that

5 property?

6 A. No, sir. I don't have no idea.

7 Q. No? Okay. As far as you've known them you

8 know that they have owned that property though?

9 A. Yes.

10 Q. Okay. All right. What --what -- how long

11 have you been going out to that property?

12 A. Probably for the last 12 years.

13 Q. Twelve years?

14 A. Yeah.

15 Q. Okay. What do you do out at that property?

16 A. I fix fence for him. I fix, I mean, gates.

17 I -- I -- I fix whatever they need --

18 Q. Okay.

19 A. -- over at that ranch. I plant -- plant grass

20 for them. I mean, I worked with him when all this --

21 you know, every once in a while. Not all the time, but

22 every once in a while.

23 Q. Do you trap hogs out there?

24 A. Yeah. I trap hogs out there. Yeah. They gave

25 me permission to trap there.

DAVIDSON REPORTING, INC.

(210) 340-3656

7

1 Q. How -- how - how often do you trap hogs out

2 there?

3 A. Well, that's about - like I said, about three

4 months out of the year.

5 Q. Three months out of the year?

6 A. Yeah.

7 Q. Okay. Where do you normally trap the hogs at

8 on their property?

9 A. In that -- that property we are talking about

1O and across by her house.

11 Q. Do you normal -- on that property there by

12 that -- by the old house do you normally steer clear of

13 the house and stay over by the cemetery or do you go --

14 A. Yeah. By the -- by the house and by the

15 cemetery. Yeah, both there.

16 Q. All right. Tell me about the conversation you

17 said you had with her about the house.

18 A. Oh, by the old house the first conversation I

19 had, I had it with --with her husband.

20 Q. When was that?

21 A. Oh, it's been -- it's -- it's been probably --

22 I don't know. It's been a while. I don't know how long

23 I could use, but it's probably been, I don't know, six

24 months ago, seven months ago.

25 Q. Uh-huh.

DAVIDSON REPORTING, INC.

(210) 340-3656

8

1 A. But about two -- about three weeks ago -- two

2 weeks ago I went to Mrs. -- her house, Mrs. Marcus'

3 house, and I ask her, I said, "Mrs. Mar -- Mrs. Marcus

4 what's you going to do with the -- with the old houses

5 you got out there?" And she said, "Nothing. I am going

6 to doze it down."

7 I said , "Ma'am" -- I said , "Ma'am , well ' if

8 you going to doze it down, you know, why don't you let

9 me take it apart, and I --you know, maybe we can save

10 some - some" -- and she said -- before I say anything,

11 she said - before I make any deal with her she said,

12 "Well, look. This is what I'll do. You just take the

13 tin and you - and let me keep the lumber."

14 Q. She said this to you?

15 A. Yeah. She said that to me. It was an

16 agreement--

17 a. Uh-huh.

18 A. -- that we had. So, you know, I pursued doing

19 that. When I didn't have nothing for the boys to do I

20 told them, you know, "Just go ahead and start taking the

21 tin off, and the lumber leave it right there because it

22 belongs to" -

23 Q. When did she tell -- when did she tell you that

24 you can take the house apart, just give her the lumber?

25 A. That's been about -- like I said about -- I

DAVIDSON REPORTING, INC.

(210) 340-3656

9

(

1 don't remember exactly, but it was about -- it was about

2 two weeks ago.

3 Q. Two weeks ago?

4 A. Yeah.

5 Q. How long after she told you that did you start

6 taking the house down?

7 A. Probably about -- about three days later.

8 Q. Three days later?

9 A. Yeah.

10 Q. Okay. Did -- did you actually take any of the

11 house down yourself or did you just hire people to do it

12 for you?

13 A. No. I just -- sometimes I do, but most of the

14 time, you know, I get those boys to do it.

15 Q. Okay. Those boys all work for you, right?

16 A. Yeah. They work for me.

17 Q. You -- you direct their actions?

18 A. Yes. Yes.

19 Q. Okay. And you tell them what to do?

20 A. Yes.

21 Q. Okay. How much do you pay those boys?

22 A. Eight dollars an hour.

23 Q. Eight dollars an hour?

24 A. Right.

25 Q. Each one of them?

DAVIDSON REPORTING, INC.

(210) 340-3656

10

(

1 A. Right.

2 Q. Okay. Have you gotten any money out of that

3 house yet?

4 A. No.

5 Q. No?

6 A. No, nothing.

7 Q. Okay. What all did you take off that house?

8 A. Just the tin.

9 Q. Just the tin?

1O A. Just the tin. The - the lumber that we

11 take - took out, we left it right there.

12 Q. You left right it?

13 A. Right beside it. We didn't take nothing else.

14 Q. Okay. What about the -- the moldings and --

15 A. No. No. No, nothing like that. No. We

16 didn't take no doors. We didn't take no moldings. We

17 didn't take nothing but the tin. That's all we took.

18 Q. Okay. All right.

19 A. And, you know; if you go inside and look at the

20 house, I mean, you can see what is fresh and what is

21 old, you know --

22 Q. Yeah.

23 A. -- if you know --

24 Q. Wait. Wait. Had you been in the house before

25 you started tearing it down?

DAVIDSON REPORTING, INC.

(210) 340-3656

11

1 A. Oh, yeah. Yeah.

2 Q. Was the molding still there?

3 A. Part of it was still there. Some --

4 Q. Part of it?

5 A. -- of it was -- is rotten out and -- and, you

6 know.

7 Q. Uh-huh.

8 A. So I don't -- I don't know how much it -- it

9 was still there because I didn't pay no attention, you

1O know. I just -- you know, but I know some is there, but

11 like I said, if you -- if you look at the house you --

12 you know, you can see what is fresh and what is, you

13 know--

14 Q. Yeah.

15 A. -- been take off. But it is the agreement that

16 we have and I didn't know she was going to change her

17 mind, and the reason why I didn't know and the reason

18 why I didn't know she change her mind, okay, because

19 she's -- last week, you know, she went by my -- by

20 where -- by my -- by where I got my -- my company

21 because my -- the ranch, and she look at the tin, you

22 know, and she didn't say nothing.

23 She didn't say -- I met her and -- I met

24 her in Calvert. She wave at me. Her and Mr. Lonnie

25 Dodge went over there and look at the tin, but they

DAVIDSON REPORTING, INC.

(210) 340-3656

12

(

1 didn't say nothing. She didn't say -- he didn't tell me

2 nothing. He didn't say nothing. I wasn't there, but I

3 met him and I didn't know. I didn't know she was going

4 to change her mind.

5 Q. Okay. So to the best of your knowledge she

6 told you you could take the tin off the house?

7 A. Yes. Yes.

8 Q. Okay.

9 A. But-

1O Q. But you didn't touch any of the doors --

11 A. No.

12 Q. -- or tile or --

13 A. No.

14 Q. -- anything like that?

15 A. None of that. None of that.

16 Q. Think any of your guys took it?

17 A. No. No. No. No. No. No.

18 Q. Did you see them when they brought the stuff

19 back?

20 A. Yeah. I saw them when they bought -- when they

21 brought the stuff back.

22 Q. All they had was the tin?

23 A. All they had was the tin.

24 Q. Where is the tin at now?

25 A. It's over at the ranch. It's over there where

DAVIDSON REPORTING, INC.

(210) 340-3656

13

(

1 I got those -- where I -- by the gin.

2 Q. In --

3 A. By the gin.

4 Q. In Calvert?

5 A. In Calvert.

6 Q. Okay.

7 A. I've got more -- more -- I have got some doors

8 over there that -- that took off in the -- another

9 house.

1O Q. Another house?

11 A. Yeah, another house. But that house we didn't

12 take nothing. I mean, if she can -- she can go out

13 there and recognize a door knob or whatever, she needs

14 to tell it to me because --

15 Q. Well, did you watch them, physically watch

16 them, bring that stuff back?

17 A. I watch because I was there when they got there

18 with the tin.

19 Q. And you're going to sit there and tell me that

20 they didn't have anything on that truck?

21 A. They didn't have anything.

22 Q. Besides --

23 A. I swear --

24 Q. --tin?

25 A. I swear to you and I swear to God.

DAVIDSON REPORTING, INC.

(210) 340-3656

14

(

1 Q. Then how would they -- what's the possible --

2 then what's the possibility of some of their -- her

3 doors being at your place?

4 A. None.

5 Q. None?

6 A. No. I -- I swear none because if -- if those

7 boys would --

8 Q. Okay.

9 A. -- or -- or -- or I would have take that, I

10 would have said, "Yes. Look, this is what I took." But

11 no. I am telling you the truth. All I took is the tin.

12 So if she come out with all of that, that's -- I don't

13 knowwhy.

14 Q. Okay. So --

15 A. But that's -- I mean -- I mean, I don't -- I

16 don't --

17 Q. So let me ask you this. If the DA says, Well,

11

18 we don't know who to believe and they ask you to take a

19 polygraph," would you pass the polygraph?

20 A. I -- I will take it, yeah. I will take it.

21 Q. Okay. Well, I'm not saying she's going to.

22 I'm just saying --

23 A. Yeah.

24 Q. -- if she did.

25 A. Yeah. I mean, but she need to take one too,

DAVIDSON REPORTING, INC.

(210) 340-3656

15

1 wouldn't you think?

2 Q. Well, that's -- that's -- like I said, I am

3 just throwing that out there.

4 A. Yeah.

5 Q. I don't know if that's what that DA is going to

6 say.

7 A. Yeah.

8 Q. Anyway, so you are -- are you saying that the

9 only thing that you took was what you was told you could

10 take?

11 A. Yes, sir. Yes, sir.

12 Q. Okay.

13 A. The only thing --that's why today those boys

14 didn't take no trailers, didn't pick nothing up because

15 I said, "Leave everything there." I said, "Pull the

16 nails out and stack it neat and leave it there -- right

17 there."

18 Q. Okay. All right. All right. So that -

19 that's it then. You have still got the -- you have

20 still got --

21 A. Yeah.

22 Q. -- all the material you took?

23 A. Yeah. It's still there where she saw it.

24 MR. CLARI: Okay. All right. All right.

25 The current time is 11 :29 p.m. End of statement.

DAVIDSON REPORTING, INC.

(210) 340-3656

16

1 THE STATE OF TEXAS )

2 COUNTY OF BEXAR

3 I, DEBORAH A.G. DAVIDSON, a

4 Certified Shorthand Reporter in and for the State of

5 Texas and Registered Professional Reporter, do hereby

6 certify that the foregoing transcript was transcribed

7 from a CD furnished to me by the Law Offices of Israel

8 Garcia through hand delivery; that the CD was

9 transcribed truthfully and accurately, to the best of my

10 ability, and completed on July 7, 2014;

11 WITNESS MY HAND, this the 7th day

12 of July, A.O. 2014.

13

14

15

Deborah A.G. Davidson, Texas CSR_..

16 Expiration Date: 12/31/15

Firm Registration No. 253

17 Davidson Reporting, Inc.

926 Chulie Drive

18 San Antonio, Texas 78216

Phone: (210) 340-3656

19

20

21

22

23

24

25

DAVIDSON REPORTING, INC.

(210) 340-3656

3. Marcus' Handwritten Statement

PlExh6B

RR10:134

Appendix3

• PLAINTJFPS

I EXHJBIT~{3 Milam· County She·riff's· Department

Cameron, Texas·

..J [<a·YI

.J[/,l

1

.re V.OLUNTARYSTATEMENT

(Mot Under Amlsl)

'©©~

Name: 1A. "-Co "'-· 1"'1lqre,., r- fn.,,~( oos: 1 i / 1 Irv oL: 1i' o 11, rt Pf ·

Address:

•

2.Y' 1G, f fl1 1..~"'l..-1 Cfty: W~ ""\ S~telZIP f >61 !" )2 6

Phone: (S7q) ;:,l.c'(-. ) /~ t Alt. Phone: ( °I 1 f / 'f 9 2. - / ..l. ~ .-, .

I understand my rights and knowing what they are, I freely and voluntarily, without being !forced or compelled

by promises, threats, or persuasion, and without promise of enumeration or award, make the following state- ·

ment In writing: · .kJ, . _ . . .

This statement was taken this f{ day of (;{_" rv ( 20 o I by S: l f1.rt. ,, f>'\...o.J·i.v t-J---:t!

~t -e. r 'i' ~ ;::;rt '"<..P '-1 ...., <.. s~ '1. 1 , - ) <. 'i - ,t <. I

STATEMENT

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;Jl..'t.± .k @2'4-kd ~ Ao 1 "''~ ·?y /u;,v>-L-·£ct-rv>i & kfl(I ·(l. 7~. t!,ri. .l-

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This text is long and has been trimmed here. Open the source document for the complete record.