*1 Bank, Schultze filed suit claim- sale, the foreclosure and held the and the ing ownership of property. Febru- bank has shown that it had no actual 1986, ary the suit was Also in knowledge interest, dismissed. of Ursic’s bank son, February Ursic, purchaser Schultze’s filed was fide property, a bona present suit a and recorded deed show- subsequently and the recorded deeds were conveyance ques- a property void as to bank. Accordingly, Ursic’s from ap- tion CCDC to This point overruled, himself. of error sum- and the proximately six months mary judgment after fore- is affirmed. filing
closure of the substitute
trustee’s deed. for sum- NBC’s motion judgment
mary alleged Ursic could
not, law, as a any matter of inter- establish property
est in the prior to the substitute August
trustee’s deed to the bank dated
1985. To contest a bank’s foreclosure of INDUSTRIES, BROWNING-FERRIS trust, must, party the time deed at Meszaros, INC. and Jim foreclosure, 1) mortgagor either be the Appellants, privity under deed of trust or 2) mortgagor, or ownership property by interest affected Tony ZAVALETA, Appellee. Metropolitan foreclosure. Goswami v. No. 13-90-215-CV. Sav., (Tex.1988). However, when party prop the third has a Texas, Appeals Court of interest, erty legal equitable, whether Corpus Christi. sale,
that will be affected such Oct. 1991. party standing challenge third has such Rehearing On Motion for 1992. Feb. rights sale extent that its will be premises affected the sale. Id. Ursic Rehearing Overruled March 1992. ownership property interest in on deeds, five all of which were after recorded
the foreclosure sale. (Ver
Tex.Prop.Code 13.001 Ann. § Supp.1991), provides “a convey
non property
ance of real or an in real interest
property mortgage or a of trust is or deed subsequent as to a creditor or to a
void for a
purchaser valuable consideration notice unless the has
without instrument to, acknowledged, proved sworn required
and filed for record as law.” case, instant
In the the substitute trustee’s County was recorded in
deed San Patricio August 1985. was re
on Ursic’s deed Moreover, February
corded Wilson, Gary
affidavit of then President NBC, states
and Chief Executive Officer of lawsuit, filing the present
that until anyone he nor knew that
neither NBC prop interest or
Ursic claim Because none of deeds was
erty. Ursic’s gave until notice of
recorded after the bank
By points one, two, three, of error appellant complains that there is either no evidence, positive, clear and satisfactory evidence, or sup- insufficient evidence to port jury’s findings in special question *3 Meszaros, number acting one that without probable malice, caused, and aided or cooperated causing a criminal prosecution four, five, of Zavaleta. Issues six, seven, eight, nine deal with the trial concerning court’s failure instruct the relationship full and fair disclosure probable relating cause and the evidence probable points cause. these Because case, are dispositive interrelated and together. we will discuss them actions, prosecution Malicious because of characteristics, their inherent have never been favored in Cheney, law. Sebastian v. 497, 691, (1894);1 86 Tex. 25 694 S.W. Dia mond Corp. Ortiz, Shamrock v. 753 238, S.W.2d 241 (Tex.App. Corpus Christi — denied). writ Powell, Gurwitz, Lisa D. Gary L. Charles In order maintain a malicious Hall, McAllen, Murray, prosecution Atlas action, plaintiff C. & prove: Profes- must Powers, 1) University sor William The of Tex- of a prose commencement criminal as, Law, Austin, Roger School of against 2) cution plaintiff; Town- which has send, Jaworski, Fulbright Houston, & for caused the defendant or appellants. 3) cooperation; defendant’s aid 4) plaintiff’s favor; which in the terminated Black, Jeffrey Roerig, Hamilton, D. innocent; plaintiff 5) Yanez, Roerig Brownsville, & Neil Nor- there was no cause for pro quest, Keith Livesay, C. Law Office of Neil 6) malice; ceedings; that it done with Norquest, McAllen, appellee. 7) damaged plaintiff. that it Eu Valdez, (Tex. resti v. S.W.2d 769 578 1989, writ); App. Corpus Christi Ellis — Ass’n, 455 Sinton Savs. OPINION (Tex.Civ.App. Corpus Christi — SEERDEN, Justice. n.r.e.). gravamen ref’d of a malicious appeal judgment prosecution This is an improperly making from based action is upon jury finding legal appellants party subject process verdict to his Trevino, guilty prosecution of malicious and award- detriment. Martin v. appellee exemplary (Tex.Civ.App. Corpus actual and dam- Christi — n.r.e.); ages. Appellants bring twenty-eight Conrad, points writ ref’d Daniels v. error. (Tex.Civ.App. We reverse remand to the — Dallas n.r.e.). trial court. writ ref’d Sebastian, points Justice out that make the citizen to be mulcted in dam- Brown "It liable ages discharge duty important every pro- give citizen should be for an honest is to crime, prosecutions, immunity to weaken the tected malicious and it is restrain- law, ing power thereby equally important pun- crimes should be of the criminal endan- ished, law-abiding law-abiding may gering security people order that the citizen ...” life, Sebastian, liberty, property. at 694. be secure in To 25 S.W. Error, 38 Evidence Points undisputed in this case sufficient (1960). 30, 1987, appellee Texas L.Rev. January shows that grand County was indicted the Cameron one, Question which the answered charged indictment that Zavale- jury. The affirmatively, included definitions both ta, who was elected member probable cause and malice. “Probable Commission, City had unlaw- Brownsville defined as “the existence of cause” was fully Browning-Ferris Industries solicited as would ex- such facts circumstances (B.F.I.) Mesza- manager, their James mind, acting on cite in a reasonable belief ros, deposit money International actor, knowledge facts within (I.B.C.)to a ben- Bank of confer Commerce person charged guilty of the that the Silva, of I.B.C. efit on Hector an officer prosecuted.” conduct for which *4 person welfare Zavaleta and whose “Malice” defined as “intentional charged The offense is was interested. purposely wrongful willfully acts and done A under Tex.Penal Code class misdemeanor injury motive of with ill will or evil 36.08(e) (g). Ann. § disregard done in reckless of the another or as to indicted, rights of another indifferent being appellee was arrest- After or not ed, person injured is booked, and released on whether other arraigned subsequently as to to wanton and willful action amount bond. The indictment knowingly unreasonably done.” The pursuant to a motion filed dismissed proba- of appropriateness handle of the definition special prosecutor appointed to points discussed under requested The motion that the case ble cause will be case. through in- four nine. dismissed because the evidence was sufficient. The motion contains the follow- one, discussing point the no evi In Special ing handwritten statement of only we consider evidence point, dence Prosecutor: tending to the find support and inferences interviewing “After all the witnesses disregard trier facts and all cause, styled the above numbered contrary. and inferences to the evidence opinion Counsel the State Sys., Boy v. Responsive Terminal Inc. be insufficient would America, 666, 668 774 S.W.2d Scouts of prove beyond reasonable doubt the alle- (Tex.1989). gations in the indictment and context, there was evidence In this justice interest would best be served times, appellee material that at all dismissing prosecution.” College and at Texas Southmost instructor dismissed, After the criminal case was City the Brownsville an elected member of prosecution was in- this suit for malicious 1984, Commission, In Commission. appellee, Tony Dr. Zavaleta. stituted Za- large efforts of measure valeta, negotiating began exploring
The remainder of our discussion “privatize” the commercial proposals within context of evidence will be done service of the points garbage error. In and refuse collection appellants’ first three proved evidence,” companies city. Among the considering “no “insufficient ev bidding service was “against great weight and interested idence” or Browning-Ferris appellant, Industries points of the evidence” preponderance negotiating (B.F.I.). error, During the contract follow the well-established tests we Co., represented primarily B.F.I. process, set forth in Pool v. Ford Motor 715 however, Meszaros; (Tex.1989); 629, by appellant v. James Dyson 635 Olin S.W.2d em (Tex.1985); B.F.I. officials and there were other Corp., S.W.2d Co., engaged process. Dr. Za- ployees Texas Indent. v. Gen. Glover people (Tex.1981); the B.F.I. v. valeta testified that 401-02 Garza lunch, office, invite him to (Tex.1965); stop by his Alviar, Al hunting trip told him he Garza, him a offered lied Fin. Co. dur any financial worries ref’d would not “have Christi (T ex.App.—Corpus 125 n.r.e.); campaigns” if subsequent election Calvert, ing any No Evidence and In- supported proposal their Rangers, waste conjunction with the collection contract vote. The evidence indi- Cameron County District and County attor- cated that B.F.I. was the company likely to office, ney’s conducted apparently what get the contract. investigation was a broad city offices and officials. Because of his friendship giving The events rise to the criminal and association many being those indictment September occurred on investigated, and to avoid the appearance shortly before a meeting City Com- of impropriety, the elected District and which, mission at in addition to other mat- County attorney removed himself from the ters, the waste collection contract was to investigation and supervision turned be discussed. Meszaros and two other assistant, same over to his chief Mervin M. employees, B.F.I. Young Alec and Juan Mosbacker, primary Jr. The enforcement Gonzales, standing outside the Com- officers investigation connected with the mission Standing chambers. nearby was Attorney’s were the District investigator Rusteberg, Fred President of the Interna- Joe Y. Garza Ranger Rudy and Texas Rod- Silva, tional Bank of Commerce and Hector riguez. the bank’s Executive Vice-President. Dr. up Zavaleta came and introduced the two Meszaros, December James R. groups to each other. The *5 substance the employee B.F.I. who directed the bid this introduction ensuing and the conversa- for the disposal Brownsville waste con- tion formed the the basis of indictment and tract, became Rangers’ aware of the Texas this lawsuit. North, investigation. Dan a former Texas Ranger and head of B.F.I. security, con- At a meeting, City later the Commission Ranger Rodriguez. tacted Rodriguez and city instructed manager negotiate to Detective Garza went to Houston and ob- B.F.I.; however, final contract with Bob tained a written statement from Meszaros. Torres, representative company, of a new statement, given 17, 1986, This December GMS, previously who had not been involved relates meeting that the in which Torres negotiations, of the appeared at the announced the formation and interest of meeting, owned, stated locally it was could City GMS was at Hall at a time when “we City money save the some requested and (B.F.I.) getting ready were to close the re-open negotia- commission negotiations city getting with the and tions. awarding Instead of the contract to approved.” contract It further related that B.F.I., the re-open commission voted to by stopped “This intervention Bob Torres process. Zavaleta concurred the vote to everything company and our did not re- re-open, which he testified would “cost ceive the contract.” (B.F.I.) several millions dollars.” He fur- vote, ther testified that after this Meszaros leading next event the chain to eye made contact with him and shook and January this suit a letter dated was wagged finger 6, 1986, his May at him. On Mosbacker, from Meszaros to Mr. Dr. Zavaleta City and the Commission ac- prosecutor charge Ranger of the investi- cepted the proposal. GMS gation. purports This letter to enclose var- proposals ious B.F.I. at the made re- The evidence further shows that quest of Brownsville officials and summa- Commission, City Brownsville at some time dealings city rizes some of the between the prior appellee, to the indictment request- and B.F.I. mentioned on one Zavaleta is ed the Rangers Texas and other en- law occasion, when the letter states agencies forcement to indepen- institute an investigation city’s dent operations. of the “At a meeting Council in the Police Sta- tion, request completely date, This independent I don’t recall the Council was negotiations fact, for the contract to col- award the contract. Commis- prompted lect refuse Tony and was sioner me to television Zavaleta introduced newspaper and alleging improper gentlemen accounts in Browns- two from a bank government just opened, stating activities within the city ville that had we, BFI, garbage going Brownsville. to have the showing the was also offered Evidence in Brownsville. This bank contract re- Laredo, damages appellee Texas. as a injuries of a bank a branch prosecution. our our put if we could of his Because of Mr. Zavaleta asked sult bank, of necessary with this it is disposition, Brownsville account not detail it thought evidence; however, I I general which said his evidence have to check problem, respected but would him to be a member showed people make those decisions.” who community reputation honest with a community service and dedicated who 30, 1987, and Alec January Meszaros On embarrassment, subjected public shame Young, employee, B.F.I. met with another arrest, indictment, and criticism Mosbacker, Mr. Investigator Garza publicity attendant thereto. booking and request pursuant prosecutor’s gave subpoenas grand jury, from theory of the case that appellee’s It is statements to Garza. additional written Young Meszaros and the statements of their ver- These statements also included false, false, they they knew were were them- between sion of conversation it they made was with and that when were selves, bankers, iden- now Zavaleta and prose- getting intention of Zavaleta Silva, Rusteberg and as Hector tified Fred wagging They contend that cuted. vice-president, respectively, president finger making eye contact with Bank of Commerce International meeting at the where Zavaleta Commission (I.B.C.). negotiations re-opened the contract Zavaleta, Rusteberg, Hec- that these B.F.I. Dr. Fred of malice and evidence get” all never employees tor Silva testified were “out Zavaleta. account from B.F.I. solicited bank Viewing the recited above their Meszaros to I.B.C. substance of appellee, find light most favorable to we *6 meeting parties of the between the version support appellee’s to be some evidence gentlemen simply all these that of num- theory and contention. Point error meeting prior in the hall to the commission is overruled. ber one introduced the B.F.I. offi- Zavaleta two, appellants of contend By point error suggested they cials to bankers question one was not jury’s answer to acquainted. should become positive, by clear satisfac- supported grand jury indicted The tory evidence. them, day presented same the case was arrested, January 1987. Zavaleta was of malicious Because of the nature fingerprinted. The photographed and public policy prosecution cases and publicity to his gave media extensive news feel free furnish for citizens to need indictment and arrest. possible illegal ac relating information authorities, and to law enforcement tivities Thereafter, attorney, again to the district policy free general of the of re- because “appearance impropriety,” insure no ideas, exchange free it has speech and from his entire staff the case moved prosecution MacRae, County held that in malicious a former Bexar Sharon Antonio, cases, proof positive, clear and must be law San prosecutor practicing Shamrock, 753 satisfactory. Special After Diamond appointed Prosecutor. However, evidence, it is settled that on at reviewing Ms. MacRae S.W.2d only two appeals have standards 22, 1987, motion courts of filed a to dismiss April may factu evidence be reviewed: reason which for the that “Counsel indictment sufficiency legal sufficiency. Mead opinion is that the evidence al the State of the (Tex.1975). Green, 509 524 S.W.2d prove beyond ows be insufficient would third appeals apply cannot allegations in- A court of reasonable doubt evidence, the reviewing the justice the interest of standard and that dictment convincing” standard. Id. by dismissing the “clear and served best be would required the charge case in this judge granted this mo- court’s prosecution.” preponder- on “a its to base answers day jury it was filed. the same tion Alviar, evidence,” which term was Garza v. anee (Tex. 395 S.W.2d properly 1965). defined the court. There was objection no to this instruction. Had the We previously have discussed the trier of facts been instructed to base its evidence jury favorable to the verdict. convincing” on answers a “clear and stan Other evidence shows that the district at dard, we legal could review the and factual torney procured the indictment of Zavaleta sufficiency light See of that standard. independently instigation at the Dept. Servs., Williams v. Texas Human B.F.I. its employees. While appellant 926 (Tex.App. — Houston the original appel initiated contact between In re writ); no [1st Dist.] investigators, undisputed lant and the it is (Tex.App. Worth — Fort giving no mention of the events rise to writ). Since there objection was no the indictment or this suit were made charge
the court’s bur fact, meeting. Zavaleta’s name proof, den of appellants we hold was not even meeting. mentioned at that complained point waived matters employees pri B.F.I.’s testified that their of error number two. mary purpose contacting Rangers point
We
now consider
error was
if they
to determine
were involved
sufficiency
three —the factual
of the evi
way
investigation.
It was not
insufficiency
In reviewing
dence.
an
until Meszaros
was contacted
the Dis
challenge,
consider,
Attorney
investigator
evidence
we must first
trict
or his
weigh, and examine all of the
subject
meeting
and conversation
supports
contrary
which
and which is
to made the basis
suit was mentioned.
Plas-Tex,
Inc. v. Zavaleta’s own
jury’s
witness,
determination.
investigator
Corp.,
United States
Steel
442, Garza,
testimony
as well as the
of Mesza-
(Tex.1989).
so,
Having done
we will
ros
Young
they
indicate that
were not
only
set aside the
verdict
the evidence
aware that
the matter
result
standing
is too
support
alone
weak to
indictment. While the letter
from Mesza-
finding, or
is
the answer
ros
attorney
January
to the district
dated
overwhelming weight
19, 1987,
Zavaleta,
of the evidence that
mentioned
such refer
unjust
manifestly
clearly wrong.
major
ence was not the
focus of the letter.2
*7
election,
complete
2. text of
letter
the
is as follows:
Prior to the
we
told
were
that BFI was
responsible
the best bidder and most
bidder.
January
during
period May
Sometime
the
of
1985 and
Mr. Mosbacker
Campanaro
October
Mr. Lieck or Mr.
vis-
Attorney’s
District
Office
ited the various facilities of the
When
bidders.
974 E. Harrison Street
Brownsville,
that election was finalized Mr. Lieck asked that
Texas 78520
proposals, copies
we submit new
of which are
Mr.
Dear
Mosbacker:
up
February
attached. The bidders
to
past
years,
the
to 6
I
talked
Over
have
to
BFI,
Disposal
were
Commercial
Gar-
waste
City
regarding
privatization
the
various
officials
bage Cobbler of San Antonio.
City
of refuse collection in the
of Brownsville.
January
February
Sometime between
25, 1986,
1986 and
IWhile
have visited with Ken Lieck and Ed-
Torres,
meeting,
Mr.
Council
Bob
at a
Campanaro very
nego-
frequently,
ward
serious
got up
repre-
before Council and stated that he
City's request
pro-
tiations started after the
for
group
a
sented
of local
investors that had
posals May
you
on
1985. As
look
the
company
formed a
gerial
called Governmental Mana-
proposals,
many
enclosed
and there are
of
time,
them,
pro-
this
he
you
Services. At
made the
responded
City
will find that I
to the
posal
company
keep
Manager's
that his
would
rates in
requests on numerous occasions for
they
participate
service as
as
as
types
proposals
are
well
in
different
of
whether it be com-
commercial,
clean-up projects
City,
only,
no
the
a
at
cost to
advertiz-
mercial
or
combination of
ing programs promoting
City throughout
sweeping
the
the
residential and street
services. Our
Texas,
place pedestrian
proposal
May
State of
sidewalk trash
initial
was dated
1985 al-
though
request
proposals
throughout
City
many
for
a due
containers
the
other
indicated
Campanaro
you
get
copy
tape
May
of
16th. Mr.
items.
If
were to
a
of
date
extended
meeting
give you exactly
date for all bidders.
that
it would
Council
received,
proposals
City
proposed
the initial
were
servic-
After
vari-
what Mr. Torres
for
meetings
provided
ous
were set to discuss still
alter-
es to
GMS.
other
Station,
awarding
delayed
meeting in
Police
I
natives. The initial
was
be-
At a Council
date,
of
was to
Commissioners’ election.
don’t recall at
Council
award
addition,
Zavaleta
should have
Attorney Euresti
still believed that
In
both District
that
and Assistant Mosbacker
testified
prosecuted
for
offense for which
to seek the indictment was that of
decision
he
indicted.
was
alone and that he relied on facts
Mosbacker
and denied that he
Meszaros
testified
appellant’s
of
statements
in
independent
at
finger
Zavaleta after the
pointed
had
fact,
In
in
making
decision.
his testi-
meeting.
he affirmed that
council
While
case,
Mosbacker
testified he
mony
this
fact,
very
Tony
for
deadlines of
we
In
Commissioner
asked
on
short
which
contract.
gentlemen
by sending
always
to
bank
me
two
from a
introduced
met the deadline when
just opened, stating
Express
flying
that had
proposals by
Brownsville
Federal
them
BFI,
we,
going
garbage
to
contract
personally.
down
bank
This
branch
in Brownsville.
every
where GMS was asked to submit a
In
case
Laredo, Texas.
asked
were,
bank in
Mr. Zavaleta
if
proposal
we
were never sub-
theirs
when
put
could
our Brownsville account with this
we
on
was told to me Mr.
mitted
time. This
bank,
thought
I said I
it would not be a
occasions,
which
they would
Lieck.
In fact on some
problem,
I
to
with
but would have
check
gener-
proposals
GMS’s
come a week or
late.
people
make those decisions.
who
ally
patterned
BFI
were
after what
submitted.
February
contract on
BFI was awarded the
8, 1985, Young,
general
On October
A1
man-
Freed,
February Mr. Richard
our
On
district,
my
ager
of our
Grande
called me
Rio
met
Mr.
counsel and I
with
Ken Lieck
in-house
Mayor
to tell me that
Hernandez
Houston office
Kip Hodge,
us
introduced
to Mr.
who
turn
requested
to
a cash contribution Mr. Jesse
had
City Attorney and asked us to work out the
reelection.
I later found out from A1
Slosse’s
that we had
details
the contract
submitted.
request
Mayor
actual
was for
that
$3,000.00
Hernandez's
Hodge,
I
Mr.
Mr. Freed and worked out
After
told Mr.
for Mr. Slosse’s reelection.
I
details, we went back to Mr. Lieck’s office
Young
BFI
under no circumstances would
changes,
they
asked
and told him the
if
any employee
make a
of BFI be authorized to
changes
satisfactory
he
to
said make
$1,000.00.
in the amount of
I
cash contribution
and send it back to
At that
the contract
him.
Young
give
Mr.
that we could not
Mr.
told
time,
accomplished
we
what
felt
we
$1,000.00
in a Com-
Slosse even a
contribution
fact,
put
asked Mr.
we
Council had
Lieck.
generally
We
would donate
missioner's race.
suppliers
our
on notice so we could start imme-
$200-$300; however, in
the fact that the
view of
diately upon
execution
the contract. This
much,
Mayor
felt
had asked for so
I
there must
important by
City
felt to be
us as well as
a real
I then told A1 that I
have been
need.
management
deteriating
because of the
condi-
ask
from Texans for Political
would
for
check
City’s equipment.
tion
$500.00
Action fund
the amount
on,
change
point
things
From that
seemed
brought it
was cut on
9 and I
check
October
weekly
visiting
basis. Mr. Torres was
My purpose
to be delivered.
Brownsville
Lieck,
Mr.
some members of Council as well as
check,
personally delivering the
with Juan and
Mayor making
proposals.
Mr.
different
attendance,
explain
we
A1 in
was to
do
way
Lieck still assured me that there
$1,000
political
was out
make
contributions but
City would do business with Mr. Torres.
In fact
question
type
election and that
this
Mayor
stated
Council and
generally supported
we have
incumbents.
GMS,
quit my job.”
“I
On March
award
will
we
Slosse’s house to deliver
When
went Mr.
its
the Commission rescinded
authorization
door, proceed-
check
he answered the
City Manager
negotiate
the contract
*8
He
to tell him what we were there for.
ed
BFI,
although
already
with
and in
it was
done
upset that we were
shocked and was
looked
taking
turn, gave
negotiate
authority
GMS.
to
with
nothing
check
he knew
about.
him a
that
swing
vote
this situation was Ms. Susan
Mayor
requested
had
told him
Hernandez
We
Austin,
up
point
I felt
to this
Austin. Ms.
money
his
conversations
behalf. Our
not,
bordering
privatize
to
I
on whether
or
very
Mr.
short because he
with
Slosse were
one
our sideloader containers delivered
had
of
the door and ended the discussions.
closed
type
equip-
and showed her the
of
to her office
Mayor
check
Hernandez’s used
We took the
to
We,
proposed
we
to use.
in fact after
ment
showing
gone
we
to deliver
car lot and told him that
her,
and
took a ride to a school
she
Mr.
he had refused
the check to
Slosse
that
type
container would
asked me how that
Mayor Hernan-
her,
then
the check to
it. I
offered
I
at that
location. When
left
she
work
dez,
and told him
but he also refused
check
put
as
I had
her mind at ease
to
indicated that
take
check back to Houston
that I would
type
equipment,
going
use.
we
to
I
were
changed
a
he
hold it for week
case
period,
a
a week
understand that within
short
two,
mind.
Sincerely,
by
Laredo
that Ms. Austin was flown to
or
private
plane
to visit with Mr. Trevino.
taking
attorney
rep-
gentlemen
that
s/-
her was an
R. Meszaros
James
GMS.
resented
Marketing,
say
proposals
Southwest
Director
Region
would like to
further that the
many
Vice President
we had submitted in
cases
that
he
suggesting
Special
MacRae,
understood
to
he
relying
be
Prosecutor
on
bank,
put money in
Mosbacker,
I.B.C.
there was no the same evidence relied on by
any
evidence that he
aware of
relation-
opinion
was of the
that there was insuffi-
ship
bank,
any
between Zavaleta and the
justify
cient
prosecution.
of its officers. He
refer-
Euresti,
testified
county
Ben
the elected district and
January
ence to Zavaleta in the
attorney,
letter
conceding
while
there
only
help
fix the time and
legitimate
opinion,
room for a
difference
place
particular
of that
meeting.
council
testified that he concurred
Ms.
with
Mac-
surprise
expressed
He
that Zavaleta had
analysis.
Rae’s
special prosecu-
been indicted. He told the
(Second)
The Restatement
of Torts
tor MacRae that
didn’t think Zavaleta
(a) 1977, quoted favorably
comment
§
anything wrong.
had done
Cisneros,
in Thomas v.
Mosbacker,
(Tex.Civ.App.
Mervin
Jr. was the assistant
ref’d
— Austin
n.r.e.)
procured
attorney
district
who
the indict-
states:
He
ment of Zavaleta.
testified that in his
charge
private person
In order to
a
opinion
he had
cause to believe
responsibilities
with
for the initiation of
crime had been committed based
official,
proceedings by
public
it must
upon
the evidence
the case.
It is ob-
appear
therefore
that his desire to have
present
people
served that there were six
initiated,
proceedings
expressed
subject
when the conduct
is the
direction,
pressure
request or
specifically
indictment occurred. Meszaros
kind,
determining
was the
factor in the
recalled that Zavaleta
solici-
made district
prose-
official’s decision
commence
tation for the B.F.I. bank account for the
cution,
or the
furnished
information
represented Mr.
bank
Silva and Ruste-
upon
him
which
official acted was
berg. Young’s recollection was the same.
known
be false.
Gonzales,
employee
the other B.F.I.
did not
“probable
under
Even
the definition of
specifically recall the substance of the con-
jury
cause” submitted to the
in connection
indictment,
versation. Prior to the
the oth-
one,
Question
we believe the evidence
participants
repre-
er
had also talked to the
is insufficient
to show that B.F.I. Mes-
Zavaleta, Silva,
sentatives of the state.
zaros desired to have Zavaleta indicted in
Rusteberg
all denied that Zavaleta had
this instance and that the answer of the
specifically solicited B.F.I.’s bank account.
great weight
sowas
They
introduced the
stated that Zavaleta
preponderance of
as to
the evidence
bankers,
people
B.F.I.
stated that
pressure
incorrect. Whatever direction
get
B.F.I. was
the contract and that the
they may
prosecutor’s
have exerted on the
groups
get
anoth-
two
should
to know one
staff,
support
not
the evidence does
testimony,
Attorney
er.
In his
District
determining
it was
conclusion that
factor
repeatedly
Mosbacker
stated that he was
bring
the decision to
the indictment.
impression
not interested in
Meszaros’
However,
need
base our
we
ultimate
only
but
the evidence
Zavaleta’s intention
solely
insuffi-
decision
this case
He
firm in his belief
presented.
remained
ciency
Appellants’ points
of the evidence.
justify
was sufficient to
that the evidence
four, five, six, seven, eight,
of error
the indictment.
complain
“prob-
*9
nine
the definition
about
There was also evidence that Zavaleta's
jury Question
able
one
cause” contained in
to Mr. Silva. There
girlfriend
related
and the failure of the trial court to instruct
this information was
was no evidence that
jury concerning
the
“full and fair disclo-
representatives,
B.F.I. or its
but
known to
part
appellant.
sure” on the
attorney.
This
it was known
the district
“probable
significant in
information would be
show-
definition
trial
is
an essential element
the indict- cause” submitted
the
court
es
in
in
sentially
interest
Silva’s wel-
the
as that used Akin v.
ment—Zavaleta’s
same
Dahl,
(Tex.1983),
MacRae,
special prosecutor,
in
criminal,
Dr.
that
Zavaleta’s conduct was
charge
prosecuting
Dr. Zavaleta. The
gave
statement,
Meszaros
leaving
a sworn
Hon. Benjamin Euresti
some
testified that
out some relevant information. This is the
indicted,
months after Dr. Zavaleta was
necessary
evidence
to show that Meszaros
Meszaros told the Hon. Sharon MacRae misrepresented facts to the district attor-
(Meszaros)
that he
thought Dr. Zavaleta ney’s office.
misrepresentations
These
anwas
man”
“honest
and that
did not
he
material in determining
whether Dr.
compelled,
feel
as a result of the conversa-
prosecuted.
Zavaleta should
been
have
Zavaleta,
tion with
deposit
Dr.
BFI’s
supports
finding
This evidence
that Mes-
money with IBC. The Hon.
Mac-
Sharon
zaros acted with
In re King’s
malice.
Es-
Rae considered this information
be im-
tate,
662,
660,
150 Tex.
244 S.W.2d
661-62
portant
showing
in
a lack of criminal intent
(1951).
part
on Dr.
necessary
Zavaleta’s
Viewing the
light
evidence
most
support the indictment.
did not
Meszaros
verdict,
to the
favorable
would hold that
convey this information to the
at-
district
all of
evidence introduced at trial was
torney’s
prior
office
to the time that the
support
jury’s
sufficient to
finding
Hon. Mervyn
sought
indict-
Mosbacker
Meszaros, acting
probable
without
cause
According
ment.
Benjamin
the Hon.
malice, caused,
and with
cooper-
aided or
Euresti,
Mervyn
if the Hon.
Mosbacker
in causing,
prosecution
ated
a criminal
apprised
information,
of this
he would
commenced
Dr. Zavaleta.
not
sought
have
the indictment. This is
majority
also
this
reversed
case on
ample evidence to show that Meszaros did
grounds
that the trial court submitted
not make a
fair
full and
disclosure of the
improper
probable
definition
facts and circumstances to the
at-
district
and did not instruct the
on full and
torney’s office. Meszaros did not make a
fair disclosure. The trial court submitted
requires
full
fair disclosure as the law
probable
the same definition of
cause as
misrepresentation
in such a situation. This
Dahl,
used Akin v.
661 S.W.2d
(failure
of the facts
to make a full and fair
(Tex.1983)
Arrott,
921
Ramsey
v.
64
disclosure), upon
prosecution
which the
(Akin
(Tex.1885)
Tex.
Ramsey
based,
probable
indicates
lack of
cases.).
prosecution
were malicious
cause.
when,
majority concluded
as
this
Malice can be inferred from
want
case, the indictment is caused indirectly
probable
wrongful
cause and from
conduct
through the aid
cooperation
per
disregard
rights
reckless
anoth-
charged
prosecution,
son
malicious
the-
er, even when
proof
there
no direct
definition
cause should have
the same. Gulf, C. &
v.
Ry.
S.F.
Co.
inquired
actually
whether Meszaros
be
James,
(1889);
73 Tex.
S.W.
statements,
lieved Dr. Zavaleta made the
(Tex.
v. Metzger,
Bass
they
regardless of
were actually
whether
App. Corpus Christi
writ
ref’d
—
The majority
Coniglio
made.
cited
Sny
v.
n.r.e.). Here,
actively sought
BFI
Dr. Za-
der,
(Tex.App. Corpus
Lumbermans Mut. v.Co. Gar rehearing The motions for should be cia, 893, 758 (Tex.App. Corpus S.W.2d — granted. denied); Christi writ Home Ins. Co. Gillum, v. (Tex.App.— HINOJOSA, J., GILBERTO joins in this Corpus n.r.e.). Christi writ ref d dissent. Whether Meszaros’ sworn statement attorney’s the district office was untrue is evidentiary Evidentiary issue. issues
need not jury. be submitted to the Clark McFerrin, (Tex.
v. App. Corpus denied); Christi — Estate Lee v. Trailways, Continental MILT FERGUSON MOTOR COMPANY (Tex.Civ.App. — Dallas Corporation, and General Motors n.r.e.). writ ref’d I would find no Appellants, abuse discretion. judgment of the trial court should be Jerry Norbert ZERETZKE and affirmed. Zeretzke, Appellees. A. HINOJOSA, J., joins GILBERTO No. 04-91-00038-CV. dissent. Texas, Appeals Court OPINION ON MOTIONS Antonio. San FOR REHEARING Dec. SEERDEN, Justice. Appellee appellants filed motions for
rehearing granted in the instant case. We permitted argument
the motions and oral
en banc.
Appellee’s points first two of error deal propriety rendering
with the of this Court’s original opinion
its en banc when the case originally by three-judge
had been heard
panel, disagreed two whom with the
opinion. Because the case has now been Court, points
submitted to the entire these
are now moot.