Ellis County State Bank v. Keever

888 S.W.2d 790, 1994 WL 278170

• Court: Texas Supreme Court
• Decided: September 3, 1994
• Docket: D-3413
• Status: Published

Opinions

GONZALEZ, Justice,

delivered the opinion of the court in which all members of the Court join in sections I and II.

HIGHTOWER, DOGGETT, GAMMAGE and SPECTOR, JJ., join in sections III and IV. PHILLIPS, C.J., and HECHT, CORNYN and ENOCH, JJ., join in sections V and VI.

The motions for rehearing are overruled. The opinions of the Court previously issued in this case are withdrawn and the following are substituted in their place.

In this action for malicious prosecution, we determine that the ordinary burden of proof by a preponderance of the evidence remains appropriate rather than the more extraordinary burden of clear and convincing evidence; we hold that the plaintiff is not entitled to prejudgment interest on punitive damages, and we remand this cause to the court of appeals with instructions that they reconsider the Bank’s punitive damage points in light of the standards we articulated in Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex.1994). We further decline to obligate the courts of appeals to detail supportive evidence when affirming the sufficiency of the evidence underlying a trial court judgment.

This suit arises out of the indictment and arrest of Glenn Keever. In February 1987, Keever executed a 90-day note for $6,000 with First State Bank of Milford, secured by an interest in his office equipment. Shortly before the due date, Keever filed for Chapter 13 bankruptcy protection. In June 1987, Don Harris purchased all of the assets of First State Bank, including Keever’s note, and renamed the bank the Ellis County State Bank.

The parties hotly dispute the ensuing events. Keever testified that when Tracy Fletcher, a bank vice president, first called to discuss the repayment of the note, Keever informed her of the bankruptcy proceeding and provided his attorney’s name and the ease number. Fletcher nevertheless continued to telephone Keever about the note and sent him a registered letter asserting a default and making formal demand for payment in full or return of the collateral. Keever testified that he telephoned Fletcher to inform her of a creditors’ meeting scheduled for October 23, 1987. At that meeting, the bankruptcy court instructed Keever to turn over the collateral to the Bank. According to Keever, in November 1987 Fletcher failed to keep an appointment to pick up the collateral. In the summer of 1988, John A. Hastings, Jr., an attorney for the Bank, made arrangements through Keever’s bankruptcy attorney to collect the collateral; again, the Bank failed to keep the appointment.

The Bank has a significantly different version of the events in which, after failing to respond to a number of past due notices and telephone messages, Keever finally agreed to make a payment and sign a new note, but later refused. Fletcher then made a formal written demand for the collateral in August, 1987, and was not advised by Keever until October of the earlier bankruptcy filing in May. Following several unsuccessful attempts to retrieve the collateral, Hastings sought an appointment with the grand jury to seek an indictment against Keever for hindering a secured creditor. After making this appointment, Hastings continued to attempt to negotiate with Keever’s bankruptcy attorney regarding the collateral. Meanwhile, Keever relocated the collateral in violation of the security agreement and without notifying the Bank. While bringing the matter to the attention of the Ellis County grand jury in December 1987, the Bank waited until November 1988 to pursue an indictment against Keever for hindering a secured creditor.¹ Based upon the testimony of Fletcher and Hastings, Keever was indicted on November 29, 1988.² Keever turned himself into the police on December 2. Arrested and incarcerated until he made bail,³ Keever pled not guilty, and eventually had his indictment quashed by the district court. Declining to seek reindictment, the district attorney indicated that she had not learned of the bankruptcy until the arraignment, contradicting claims of Fletcher and Hastings that they had informed the grand jury of this filing.

In his subsequent malicious prosecution action against Harris, Fletcher, Hastings, and the Bank, Keever testified that as a result of the indictment and arrest he suffered from post-traumatic stress disorder and depression. Based on a jury verdict, the trial court rendered judgment for Keever against all defendants, and awarded Keever actual and punitive damages, as well as prejudgment interest.⁴ The court of appeals reversed the judgment as to prejudgment interest on the punitive damages, but otherwise affirmed. 870 S.W.2d 63.

I. Malicious Prosecution— Burden of Proof

The defendants contend that the trial court erred in instructing the jury that the plaintiff must prove the elements of malicious prosecution by a preponderance of the evidence, rather than by clear and convincing evidence. This contention conflicts with our writing that “[n]o doctrine is more firmly established than that issues of fact are resolved from a preponderance of the evidence.” Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 209 (1950) (trespass to try title). Over a century ago this Court rejected the view that

facts [must] be established by evidence with that absolute certainty ... that excludes all reasonable doubt of their existence, as if it were a case of murder or treason, [this] is not a rule applicable to this or any other civil cause.

Sparks v. Dawson, 47 Tex. 138, 145 (1877) (fraudulent conveyance). Seeking to avoid a blurring of the distinction between civil and criminal cases, we have regularly found reversible error when a trial court instructed a jury that a greater burden must be met. See Bluntzer v. Deewes, 79 Tex. 272, 15 S.W. 29, 30 (1891) (reversible error in charge requiring “a preponderance of the evidence ... with such certainty as will satisfy your minds”); Wylie v. Posey, 71 Tex. 34, 9 S.W. 87, 88-90 (1888) (reversible error in charge requiring “a sufficient preponderance of the evidence, to the extent of a reasonable certainty”). Only in extraordinary circumstances, such as when we have been mandated to impose a more onerous burden, has this Court abandoned the well established preponderance of the evidence standard.⁵

Malicious prosecution is no different. Though reference has been made to the importance of “positive, clear and satisfactory” proof⁶, all “issues of fact are resolved from a preponderance of the evidence.” Andrews v. Dewberry, 242 S.W.2d 685, 687 (Tex.Civ.App.—Fort Worth 1951, writ ref d n.r.e.) (approving a jury instruction regarding a preponderance of the evidence standard in a malicious prosecution action). Texas is certainly not alone in this regard; we have not been made aware of any other jurisdiction that has required an enhanced burden of proof in a malicious prosecution action.

This Court has explained the occasional suggestion that facts must be established by “clear and convincing evidence” as “but an admonition to the judge to exercise great caution in weighing the evidence.” Sanders, 227 S.W.2d at 209. As noted in Carl v. Settegast, 237 S.W. 238, 239-40 (Tex.Com.App.1922), admonitions of this type originate from their early usage with reference to courts of chancery:

in so far as these rules merely address themselves to the conscience of the chancellor in exercising his province to pass upon the facts or weight of the evidence, they have no place in our jurisprudence, under which ... a jury trial is given as a matter of right, and the province of the jury where the evidence is sufficient to have the issues submitted to them is absolute in determining the facts, subject only to review by the trial court and Court of Civil Appeals.

Only recently we again explained the meaning of such admonitions by relying upon Sanders to explain that a requirement of “clear and satisfactory” proof represents only

an admonition to exercise great caution in weighing the evidence and does not supplant the usual standard of proof by a preponderance of the evidence.

Rhodes v. Cahill, 802 S.W.2d 643, 645 n. 2 (Tex.1990) (adverse possession).

What we said with regard to the standard of review for malicious prosecution cases in Meadows v. Green, 524 S.W.2d 509, 510 (Tex.1975) (per curiam), is also applicable in the trial court:

The requirement of clear and convincing evidence is merely another method of stating that a cause of action must be supported by factually sufficient evidence.

Here, the trial judge correctly charged the jury to apply the traditional burden of proof by preponderance of the evidence. That burden does not change merely because trial judges are admonished to set the verdict aside and order a new trial if the judge is persuaded that the evidence is not “positive, clear and satisfactory.”

Nor need we reject our state’s well established jurisprudence in order to assure reasonable protection to citizens who report criminal activity to prosecuting authorities. This goal can be satisfied by demanding the full satisfaction of all of the elements of the malicious prosecution tort such as that the defendant lacked probable cause to initiate the prosecution and acted with malice. See, e.g., Compton v. Calabria, 811 S.W.2d 945, 949 (Tex.App.—Dallas 1991, no writ) see also Diamond Shamrock, 753 S.W.2d at 241. One accused of malicious prosecution is rightly aided by “an initial presumption that a defendant acted reasonably and in good faith and therefore had probable cause.” Akin v. Dahl, 661 S.W.2d 917, 920 (Tex.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1911, 80 L.Ed.2d 460 (1984). Protection is also afforded to one who makes a full and fair disclosure to the prosecuting attorney. See Browning-Ferris Indus., Inc. v. Zavaleta, 827 S.W.2d 336, 345 (Tex.App.—Corpus Christi 1992, writ denied); Thomas v. Cisneros, 596 S.W.2d 313, 317 (Tex.Civ.App.—Austin 1980, writ refd n.r.e.); Ada Oil Co. v. Dillaberry, 440 S.W.2d 902, 912 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ dism’d). In view of these alternative safeguards for those who honestly and in good faith report criminal activity, we believe the trial court acted properly in following the law concerning the applicable standard of proof rather than changing it.

II. Court of Appeals Detailing of Supportive Evidence—

Actual Damages

To discourage a “court of appeals [from] merely substitut[ing] its judgment for that of the jury,” we require that every opinion involving a reversal of a trial court judgment on factual insufficiency grounds must

detail the evidence relevant to the issue in consideration and clearly state why the jury’s finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias. Further, those courts, in their opinions, should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.

Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). The defendants here urge that we extend this requirement to cases in which the court of appeals upholds the trial court judgment. While an appellate court may sometimes find such an outlining of supportive evidence to be useful, we decline to mandate this. Requiring the detailing of all evidence supporting a judgment is not consistent with Pool. We perceive no other justification for imposing this additional burden on the court of appeals.

III. No Evidence

Rather than clearly presenting and briefing a no evidence point concerning their liability, the defendants have lumped a generalized sufficiency of the evidence contention together with their argument for the extension of Pool ⅛ detailing of the evidence requirement. With liberal construction,⁷ we believe this argument can be construed as urging no evidence that Harris, individually, either gave or participated in any decision to give false testimony or make an incomplete disclosure to the grand jury. In reviewing a “no evidence” point, this court “must consider only the evidence and inferences tending to support the jury’s finding, viewed most favorably in support of the finding, and disregard all contrary evidence and inferences.” Hamer v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992); State v. $11,011.00, 820 S.W.2d 783 (Tex.1991) (per curiam); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Applying this stringent standard here, we agree that there is no evidence to support the finding against Harris individually.

The more indefinite complaint urged jointly by the remaining defendants, Fletcher, Hastings, and the Bank, relates to a claim that Keever failed to establish one element of malicious prosecution — a lack of probable cause to initiate proceedings.⁸ This element may be demonstrated by proof that the defendant made material misrepresentations to the prosecuting officer. See Compton, 811 S.W.2d at 950; Fisher v. Beach, 671 S.W.2d 63, 67 (Tex.App.—Dallas 1984, no writ); Terk v. Deaton, 555 S.W.2d 154, 155 (Tex.Civ. App.—El Paso 1977, no writ); Andrews, 242 S.W.2d at 688. The jury heard testimony concerning written misrepresentations that Hastings made to the district attorney⁹ as well as to Keever and his attorney.¹⁰ Similarly, Fletcher did not tell the grand jury about appointments that Keever and his bankruptcy attorney made for the Bank to pick up the collateral.¹¹

A jury could reasonably conclude that misrepresentations by Hastings and Fletcher constituted evidence of a lack of probable cause. Accordingly, the court of appeals properly concluded that there was some evidence, both direct and circumstantial, that Fletcher and Hastings falsely testified before the grand jury and made material misrepresentations to the Ellis County District Attorney.

IV. Heightened Appellate Scrutiny

Agreeing with the Court that we should impose neither a higher burden of proof at trial nor a detailing requirement on appeal, Justice Hecht nevertheless suggests that future actions might be resolved through application of a “higher standard of evidentiary review in malicious prosecution cases.” 888 S.W.2d at 801 (Hecht, J., concurring and dissenting). This approach has apparently never been discussed by any court or commentator in the history of Texas jurisprudence, nor was it urged or even implied as a basis for reversal by the Bank. Until today’s writing, appellate review has addressed either the factual or the legal sufficiency of the evidence presented at trial.

The role of this Court is, of course, constitutionally limited. Tex. Const, art. V, § 6. As we wrote recently in Browning-Ferris v. Reyna, 865 S.W.2d 925, 927-28 (Tex.1993):

We review only to ensure the proper application of legal standards by other courts and to determine whether there is some evidence which provides a legal basis for a finding.... If more than a scintilla of such evidence exists, the claim is sufficient as a matter of law, and any challenges go merely to the weight to be accorded the evidence. Indeed, evidence that we might well have discounted, had we been serving as jurors ourselves, cannot now be judicially erased from the record. We are not empowered to convert some evidence into no evidence.

See also Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401, 410-11 (1960) (“The sufficiency of the evidence, in so far as measuring its weight and preponderance, is a question of fact; and this court has no jurisdiction over fact questions.”); Turner, 556 S.W.2d at 565; Meadows, 524 S.W.2d at 510.

Justice Hecht intimates an interest in a wholly new, unexplored standard of review. Other than a questionable inference drawn from one decision,¹² 888 S.W.2d at 800 (Hecht, J., concurring and dissenting), the sole writing advanced for this previously unknown approach consists of certain dicta from Sullivan v. O’Brien, 85 S.W.2d 1106 (Tex.Civ.App.—San Antonio 1935, writ ref d):

[Plaintiffs’] evidence raises no more than mere surmise or suspicion of the fact sought to be established by them. Actions for damages for malicious prosecution are not favored in the law, and require more satisfactory proof than is required in ordinary lawsuits; and certainly recovery in such cases cannot be had upon mere surmise and suspicion.

Id. at 1112. This general admonition is hardly a justification for this Court engaging in a heightened review of the evidence, and until today no one has suggested otherwise.

The practical significance of alerting trial judges to the important policy interests at stake in malicious prosecution cases is just that — an admonishment to be cautious in weighing the evidence while continuing to afford the trial court discretion in determining admissibility in accord with the Rules of Evidence. Though it is claimed that under a heightened level of review this Court need not weigh the evidence, Justice Hecht proceeds to suggest precisely that, thus blurring the line between factual and legal sufficiency review. 888 S.W.2d at 800-801 (Hecht, J., concurring and dissenting). Today we preserve our traditional appellate standard of review in accordance with the Texas Constitution rather than pursuing this unpreserved and unwise proposed course.

V. Prejudgment Interest

The district court awarded prejudgment interest on the punitive damages awarded to Keever. The court of appeals reversed this award. 870 S.W.2d at 74. Keever complains that the court of appeals erred.

In Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 555-56 (Tex.1985), we held that prejudgment interest should not be charged on punitive damages, reasoning as follows:

Commentators are virtually unanimous in advocating that prejudgment interest not be awarded on future damages and punitive damages.

Punitive damages are intended to punish the defendant and to set an example to others. They are assessed over- and above the amount of damages necessary to indemnify the plaintiff. The plaintiff can thus be made whole even if prejudgment interest is not awarded on punitive damages. The plaintiff is likewise unharmed by the defendant’s retention of future damages prior to trial since these damages are, by their very nature, unaecrued.

Id. (citations omitted).

Keever argues, however, that the Legislature has modified Cavnar and authorized prejudgment interest on punitive damages in certain cases by enacting Tex.Rev.Civ.Stat. art. 5069-1.05, § 6(a), which states:

Judgments in wrongful death, personal injury, and property damage cases must include prejudgment interest. Except as provided by Subsections (b), (c), and (d) of this section, prejudgment interest accrues on the amount of the judgment during the period beginning on the 180th day after the date the defendant receives written notice of a claim or on the day the suit is filed, whichever occurs first, and ending on the day preceding the date judgment is rendered.

Keever argues that since section 6(a) awards prejudgment interest “on the amount of the judgment,” and punitive damages are included in that amount, prejudgment interest must therefore accrue on punitive damages.

Section 6(a) was adopted as part of a package of tort reform legislation. John T. Montford & Will G. Barber, 1987 Texas Tort Reform: The Quest for a Fairer and More Predictable Texas Civil Justice System (pt. 1), 25 HousJL.Rev. 59,102-08 (1988). Another part of that package was chapter 41 of the Texas Civil Practice and Remedies Code, entitled “Exemplary Damages.” Section 41.006 of that chapter states: “Prejudgment interest may not be assessed or recovered on an award of exemplary damages.” Today, in C & H Nationwide, Inc. v. Thompson, 1994 WL 278167 (Tex.1994), the Court states that section 41.006 limits section 6(a), and that in all actions to which section 41.006 applies, prejudgment interest is not allowed on punitive damages, notwithstanding section 6(a). This conclusion is an integral part of the Court’s analysis in the case. The Court holds that section 6(a) requires prejudgment interest to be paid on future damages awarded in a judgment. The Court reasons, in part, that the Legislature must have intended section 6(a) to apply, to future damages, or section 41.006 prohibiting prejudgment interest on one kind of future damages, punitive damages, would be superfluous. Accordingly, the Court concludes:

Prejudgment interest on punitive damages is expressly forbidden by statute for personal injury, property damage and wrongful death actions grounded in negligence or strict tort liability, [section 41.006.] Our reading of section 6(a) would not overrule the express language of section 41.006, as both provisions were part of the same tort reform package.

At *11 (citation omitted). Thus, contrary to the assertion in Justice Doggett’s opinion, the Court did not hold in C & H that “the phrase ‘amount of the judgment’ means all of the judgment.” 888 S.W.2d at 803 (Doggett, J., concurring and dissenting). Rather, the Court specifically stated that in cases covered by section 41.006 prejudgment interest was not allowed on punitive damages.¹³

However, the Court in C & H expressly did not decide to what actions section 41.006 applies. The Court wrote:

Perhaps prejudgment interest would be available on punitive awards not covered by [section 41.006], including treble damage awards under the [DTPA]. This result would be consistent with the legislative purpose of encouraging settlements. As the issue of prejudgment interest on punitive damages outside the statute is not before the Court today, however, we do not reach this question.

At *36 n. 7 (citations omitted). The issue reserved in C & H is the very issue we must determine here. If section 41.006 covers this ease, prejudgment interest is not allowed on punitive damages.

Section 41.002(a), part of the same chapter which includes section 41.006, states: “This chapter applies to an action in which a claimant seeks exemplary damages relating to a cause of action as defined by section 33.001.” Section 33.001 does not actually “define” causes of action, but refers to actions for negligence, strict liability and breach of warranty. Section 41.002(a) does not state that chapter 41 applies only to such actions, nor does it imply an exclusive listing. Section 41.002(b) undertakes to list actions to which chapter 41 does not apply. For example, section 41.002(b)(3) lists workers compensation actions. Workers compensation actions are not based on negligence, strict liability or breach of warranty. If the listing in section 41.002(a) were exclusive, there would be no need for section 41.002(b)(3), and other sub-parts of that section.

Other provisions of chapter 41 indicate that its applicability is not limited only to those actions referred to in section 41.002(a). Section 41.001 defines terms for the chapter such as “fraud” and “malice,” which would not be necessary if the chapter applied only to negligence, strict liability and breach of warranty actions. Section 41.003 allows recovery of exemplary damages upon a showing of fraud or malice, as well as gross negligence. The causes of action referred to in section 41.002(a) do not involve fraud or malice. Also, section 41.007 limits exemplary damages to the greater of four times actual damages or $200,000, but section 41.008 states that the limitation does not apply to intentional torts. If section 41.002(a) were exclusive, and chapter 41 did not therefore apply to intentional torts, there would be no need for the provision in section 41.008. Section 41.008 expressly contemplates that section 41.007 might otherwise be applied to intentional torts.

Punitive damages, being inherently penal in character, should not be enlarged by the imposition of prejudgment interest in the absence of an express legislative intent to do so. We find no such intent expressed in section 6(a) when read with chapter 41. Rather, we think that the import of chapter 41, taken as a whole, is that section 41.006 is not limited in its application to the actions referred to in section 41.002(a). We believe section 41.006 was intended to preclude an award of prejudgment interest on punitive damages that might otherwise be required by section 6(a). Accordingly, we conclude that Keever is not entitled to prejudgment interest on punitive damages. In this respect, the judgment of the court of appeals is affirmed.

VI. Remand in Light of Moriel

After assessing actual damages of $110,600 against all defendants, the jury imposed punitive damages against the Bank of $1,000,000.¹⁴ Ellis County State Bank argues that the court of appeals erred when it failed to subject the punitive damage award to proper scrutiny. We agree.

This Court recently imposed new procedural standards for punitive damage awards to help “ensure that such awards ‘are not grossly out of proportion to the severity of the offense and have some understandable relationship to compensatory damages.’ ” Moriel, 879 S.W.2d 10, 28 (quoting Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 22, 111 S.Ct. 1032, 1045, 113 L.Ed.2d 1 (1991)). One of these standards requires courts of appeals, when upholding a punitive damage award,

to detail the relevant evidence in its opinion, explaining why that evidence either supports or does not support the punitive damages award in light of the Kraus, [616 S.W.2d 908 (Tex.1981) ] factors.

Moriel, 879 S.W.2d at 31. The “Kraus factors” are those criteria we articulated in Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981), to guide a court of appeals in determining whether a punitive damage award is excessive. They include:

(1) the nature of the wrong, (2) the character of the conduct involved, (3) the degree of culpability of the wrongdoer, (4) the situation and sensibilities of the parties concerned, and (5) the extent to which such conduct offends a public sense of justice and propriety.

Id. Although the court of appeals in this case listed the Kraus factors, it did not explain how the evidence related to each. Rather, the court of appeals simply concluded as follows:

The evidence of Ellis Bank’s malicious conduct is sufficient to support an award of punitive damages. Where the jury finds that Keever suffered actual damages of $110,600 and finds malice on the part of Ellis Bank, an award of $1,000,000 is not patently unreasonable. This Court cannot say under these facts that the award was so excessive as to indicate passion or prejudice on the part of the jury.

870 S.W.2d at 71. The Bank argues that the court of appeals focused only on the first Kraus factor, the nature of the wrong, without adequately considering the remaining factors. The court certainly did not satisfy the Moriel requirement of explaining why the evidence supports the punitive damages award in light of each of these factors.

Although Moriel was decided after the court of appeals’ decision in this case, its holding should be applied to a pending case in which a party has preserved the complaint that the court of appeals failed to properly scrutinize a punitive damage award. Here, the Bank specifically argues in its application for writ of error that the court of appeals failed to adequately consider the Kraus factors. Also, in its motion for rehearing en banc in the court of appeals, the Bank presented a point of error complaining that “the court of appeals erred in failing to order remittitur of punitive damages awarded against the Bank,” arguing under this point that the punitive damage award was “patently unreasonable” and “so excessive as to indicate passion or prejudice on the part of the jury.” Although the Bank did not specifically refer to the Kraus factors in the motion for rehearing, it adequately preserved this issue below under our practice of “con-stru[ing] liberally points of error in order to obtain a just, fair and equitable adjudication of the rights of the litigants.” Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).

In accordance with this opinion, the judgment of the court of appeals is affirmed in part, and reversed and remanded in part. The court of appeals is instructed to reconsider the punitive damage award in accordance with the standards articulated in Mor-iel.

1 . TexPenal Code § 32.33 (1989).

2 . An initial grand jury indictment on November 15, 1988 was dismissed because of a typographical error.

3 . This process took less than an hour and involved Keever being formally arrested, finger printed, booked, led handcuffed and chained across the courthouse lawn, and incarcerated.

4 . In addition to $110,600 in actual damages, the trial court imposed punitive damages of $1,000,-000 against the Bank, $25,000 against Fletcher, $260,000 against Hastings, and $250,000 against Harris.

5 . A principal example is with regard to civil commitment proceedings in which, as in other civil litigation, we applied the preponderance standard:

Some courts in other jurisdictions make a distinction between the standard of clear and convincing evidence and the usual civil standard of the preponderance of the evidence; however, Texas Courts review evidence by but two standards: factual sufficiency and legal sufficiency. The requirement of clear and convincing evidence is merely another method of requiring that a cause of action be supported by factually sufficient evidence.

State v. Turner, 556 S.W.2d 563, 565 (Tex.1977). Concerned that an "individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of evidence," the United States Supreme Court commanded us to do otherwise. Addington v. Texas, 441 U.S. 418, 427, 99 S.Ct. 1804, 1810, 60 L.Ed.2d 323 (1979). On remand, we adopted a "clear and convincing evidence” standard in such cases. See State v. Addington, 588 S.W.2d 569, 570 (Tex.1979); In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980) (relying on Addington, establishing that the clear and convincing evidence standard applies to the involuntary termination of parental rights); See also Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex.1988) (“[flor consistency,” applying legislative commands in the Family and Probate Codes that paternity must be established by clear and convincing evidence to a claim under the wrongful death statute). Apparently the only other such circumstance was this Court’s approval without discussion of the writing of a court of appeals that clear and convincing evidence is required to rebut the presumption of gift. See Bogart v. Somer, 762 S.W.2d 577 (Tex.1988) (per curiam).

6 . Diamond Shamrock Corp. v. Ortiz, 753 S.W.2d 238, 241 (Tex.App.—Corpus Christi 1988, writ denied); see also Browning-Ferris Indus., Inc. v. Lieck, 845 S.W.2d 926, 935 (Tex.App.—Corpus Christi 1992, writ granted) ("clear and convincing”); Wal-Mart Stores, Inc. v. Medina, 814 S.W.2d 71, 73 (Tex.App.—Corpus Christi 1991, writ denied) (same); Ada Oil Co. v. Dillaberry, 440 S.W.2d 902, 914 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ dism'd) ("positive, clear and satisfactory”); Montgomery Ward & Co. v. Kirkland, 225 S.W.2d 906, 909 (Tex.Civ.App.—San Antonio 1949, writ ref'd n.r.e.) (same). None of these cases, however, required any change in the jury instruction regarding burden of proof.

7 . See Pool, 715 S.W.2d at 633, (quoting Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982)):

It is our practice to liberally construe the points of error in order to obtain a just, fair and equitable adjudication of the rights of the litigants.... We look not only at the wording of the points of error, but to the argument under each point to determine as best we can the intent of the party.

8 . They also argue that probable cause was established as a matter of law by virtue of a statutory presumption:

For purposes of this section, a person is presumed to have intended to hinder enforcement of the security interest or lien if, when any part of the debt secured by the security interest or lien was due, he failed:

(1) to pay the part then due; and

(2) if the secured party had made demand, to deliver possession of the secured property to the secured party.

Tex.Penal Code § 32.33(c) (1989). Even if one assumes that this statute creates a presumption of probable cause, that presumption is rebutta-ble. If one makes a misrepresentation to the prosecuting authority in order to secure an indictment, he cannot rely on a presumption in a law known not to have been violated. In this record there is some evidence from which the jury could have concluded that Fletcher, Hastings and the Bank did not have probable cause to bring the claim to the grand jury, despite any presumption that could arguably have existed in their favor. Nor, as Justice Hecht suggests, 888 S.W.2d at 801-802 (Hecht, J., concurring and dissenting) did Keever's nondelivery of the collateral afford the Bank probable cause to believe that a penal violation had occurred. See Anzaldua v. State, 696 S.W.2d 911, 912 (Tex.Crim.App.1985) ("The mere refusal to deliver property upon demand does not constitute 'concealing.' "); Op.Tex.Att’y Gen. No. H-980 (1977)

("[M]ere refusal to deliver property to a secured party is not an offense under § 32.33 of the Penal Code.”).

9 . After advising the district attorney that Keever had "a very violent response” to a collection letter, Hastings admitted at trial that Keever had no such response and had never even received the letter.

10 . Hastings conceded at trial that the grand jury was provided letters that he had sent to Keever, which contained misrepresentations regarding the Bank’s efforts to collect the collateral.

11 . Fletcher’s testimony before the grand jury regarding attempted collection of the collateral seemingly conflicts with the trial testimony both of another Bank employee and her husband. Contrary to Justice Hecht’s contention, 888 S.W.2d at 802-803 (Hecht, J., concurring and dissenting) the jury could well have inferred from this evidence that Fletcher misled the grand jury regarding Keever’s willingness to turn over the collateral.

12 . That this Court applied a heightened standard of review mandated by the United States Supreme Court in Doubleday & Co. v. Rogers, 674 S.W.2d 751 (Tex.1984), at best indicates only that the Court felt compelled under the Supremacy Clause to engage in such an analysis.

13 . The Court also reasoned that attorney fees and costs should not be considered part of the “amount of the judgment” under section 6(a) in light of separate references to “judgment” and "costs” in Tex.Rev.Civ.Stat.Ann. art. 5069-1.05, § 2, as well as "common usage in the legal world”. 888 S.W.2d at 803. Prejudgment interest itself would also be excluded from “the judgment" for purposes of computing interest; otherwise, the result, interest on interest or compound interest, would squarely conflict with the statutory provision for simple interest. Montford & Barber, supra, at 106-07 n. 24.

14 . The jury also imposed punitive damages of $25,000 against Tracy Fletcher, $260,000 against John Hastings, and $250,000 against Don Harris. The award against Harris is vacated under the Court's judgment. Fletcher and Hastings do not complain that the punitive damages awarded against them are excessive.