Wal-Mart Stores, Inc. and Wayne Cruickshank v. Ignacio Aguilera-Sanchez, Individually and as Surviving Spouse/Heir of Irene Aguilera and as Next Friend of Marina Aguilera and Ignacio Aguilera, Children and Statutory Heirs of Mrs. Irene Aguilera--Appeal from 229th Judicial District Court of Starr County

DISSENTING OPINION
No. 04-02-00458-CV
WAL-MART STORES, INC. & Wayne Cruickshank,
Appellants
v.
Ignacio AGUILERA-SANCHEZ, et al.,
Appellees
From the 229th Judicial District Court, Starr County, Texas
Trial Court No. DC-95-61
Honorable Alex W. Gabert, Judge Presiding

Opinion by: Karen Angelini, Justice

Dissenting opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis Speedlin, Justice

Delivered and Filed: June 11, 2003

In finding that the evidence is legally insufficient to support the probable cause element of the appellees' malicious prosecution claim, I believe the majority misapplies the applicable standard of review. For this reason, I respectfully dissent.

In conducting a legal sufficiency review, we review the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). If more than a scintilla of evidence exists, the evidence is legally sufficient. Id. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence. Id. at 782-83. Because a court of appeals is not a fact finder, we may not pass upon a witness's credibility or substitute our judgment for that of the jury, even if the evidence would

clearly support a different result. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998).

During oral argument, counsel for the appellants repeatedly stated that the issue of probable cause was a question of law. "Whether probable cause is a question of law or a mixed question of law and fact depends on whether the parties dispute the underlying facts." Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 518 (Tex. 1997). "When the facts underlying the defendant's decision to prosecute are disputed, the trier of fact must weigh the evidence and resolve conflicts to determine if probable cause exists, as a mixed question of law and fact." Id. The facts in this case could not be more clearly in dispute. Cruickshank identified Aguilera as being involved in a theft offense. Aguilera testified that she was not present at the scene and had an alibi to support her testimony.

"Once [the] opposing parties have entered into a factual contest on the issue of probable cause, a factual issue is created for resolution by the trier of fact." Akin v. Dahl, 661 S.W.2d 917, 920 (Tex. 1983). "This is the cornerstone of our judicial system." Id. "'When the facts are in controversy the question of probable cause must necessarily go to the jury, and then the court must give such instruction as will enable them to draw the correct conclusion from the facts as they may find them and the law thus given.'" Id. (quoting Landa v. Obert, 45 Tex. 539, 543 (Tex. 1876)) (citations omitted).

In the context of a malicious prosecution cause of action, probable cause is defined as the existence of facts and circumstances that would excite a belief in a reasonable person, acting on the facts within his knowledge, that the person charged is guilty of a crime. Richey, 952 S.W.2d at 517. "The probable cause inquiry asks only whether the complainant reasonably believed that the elements of a crime had been committed based on the information available to the complainant before criminal proceedings begin." Id. at 519.

The key to the jury affirmatively finding no probable cause in this case is based on the facts it determined to be within Cruickshank's knowledge. Cruickshank testified that a videotape existed that showed every person involved in the offense. (1) Cruickshank testified that he gave that videotape to Officer Abbott, but Officer Abbott did not recall receiving the videotape. No evidence was introduced to prove that Cruickshank completed a log showing that he had given Officer Abbott the videotape in accordance with company policy. Furthermore, neither the evidence receipt Cruickshank allegedly received from Officer Abbott nor the videotape was produced at trial. From this evidence, the jury could make a credibility determination that Cruickshank did not give Officer Abbott the videotape.

Cruickshank testified that he did not watch the videotape, but he also knew that his job performance was based upon the number of apprehensions he made and the dollar value of the prevented theft. (2) From this evidence, the jury could make a credibility determination that Cruickshank had watched the videotape and infer that the videotape would not have supported Cruickshank's identification of Aguilera. This inference is bolstered by the evidence that Cruickshank identified at least one other individual as being involved in the offense who was not prosecuted based on alibi testimony. Based on the evidence as a whole, the jury could have disbelieved that the true facts within the knowledge of Cruickshank would excite a belief in a reasonable person that Aguilera was guilty of a crime. See Akin, 661 S.W.3d at 921 (holding evidence supported jury finding of no probable cause where conflicting evidence was presented with regard to whether a reasonable basis in the known facts supported a belief that plaintiff was mentally incompetent even though physician records supported finding of mental incompetency); San Antonio Credit Union v. O'Connor, No. 04-00-00714-CV, 2002 WL 31662054, at *7-8 (Tex. App.--San Antonio Nov. 27, 2002, no pet. h.) (holding jury could have found that complainant's belief that plaintiff misappropriated loan funds was unreasonable based on conflicting evidence); First Valley Bank of Los Fresnos v. Martin, 55 S.W.3d 172, 184 (Tex. App.--Corpus Christi 2001, pet. filed) (holding evidence supported no probable cause finding where evidence was presented that defendant could not have reasonably believed that plaintiff committed crime); King v. Graham, 47 S.W.3d 595, 607-08 (Tex. App.--San Antonio 2001, no pet.) (holding more than a scintilla of evidence existed to support finding of no probable cause where evidence was offered to show that defendant's version of the facts was inaccurate). "While the jury was not required to believe [Aguilera's] story and could have rejected it, it was certainly within the jury's province to accept it." Richey, 952 S.W.2d at 521 (Cornyn, J., dissenting).

The reason the jury could have chosen to simply disbelieve that Cruickshank honestly and reasonably believed that Aguilera was present during the offense could not be more heavily documented in the record. Cruickshank lied at his deposition about graduating from high school. Cruickshank lied at his deposition about receiving certain awards and medals while serving in the Navy. Cruickshank lied about needing authorization from the President of the United States before disclosing the reason for receiving one of those awards. Cruickshank admitted that he lied on his Wal-Mart application. Cruickshank's initial statement to the police identified only one other female assisting two juveniles with the theft by placing clothes on top of merchandise in a shopping cart. Cruickshank did not identify Aguilera's alleged role in acting as a lookout until his second statement was taken two days later. The jury could have questioned whether Cruickshank honestly believed that the additional individuals identified in his second statement were present given Cruickshank's failure to initially mention them and given that Cruickshank's performance was evaluated in part based on the number of apprehensions he made. Finally, the jury could have believed that Cruickshank lied about giving Officer Abbott the videotape and about not viewing the videotape. In sum, the jury had every reason to find that Cruickshank's testimony about the facts within his knowledge was false and that the facts that were within Cruickshank's knowledge would not excite a belief in a reasonable person that Aguilera was guilty of a crime.

Because I believe the majority passes upon the witnesses' credibility and substitutes its judgment for that of the jury, I respectfully dissent.

Alma L. L pez, Chief Justice

1. Q: So, there's no question but had you looked at the videotape you could have compared it because you know you're positively sure of your photo identifications, they would have jibed.

Yes, sir.

2. Interestingly, Cruickshank received a commendation letter and a raise for his actions relating to the theft offense.