Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00565-CV
Kelly WALLS, Appellant
v. Daniel Daniel KLEIN, Appellee
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-11285 Honorable Dick Alcala, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice
Delivered and Filed: July 9, 2014
AFFIRMED
Kelly Walls appeals the trial court’s judgment granting a permanent injunction in favor of
Daniel Klein and awarding him damages for his breach of contract and defamation claims. On
appeal, Walls contends: (1) Klein’s attorney engaged in incurable improper jury argument; (2) the
trial court erred in admitting an exhibit that was not properly authenticated; (3) the injunction is
unsupported by the jury’s findings and constitutes an unconstitutional prior restraint on speech;
and (4) the trial court erred in failing to rule on Walls’s affirmative defenses. We affirm the trial
court’s judgment. 04-13-00565-CV
BACKGROUND
The factual and procedural background regarding the dispute between Walls and Klein is
set forth in detail in this court’s prior opinion modifying and affirming a temporary injunction in
Klein’s favor. See Walls v. Klein, No. 04-12-00615-CV, 2013 WL 988179, at *1-2 (Tex. App.—
San Antonio Mar. 13, 2013, no pet.) (mem. op.). After this court affirmed the temporary
injunction, a jury trial was held, and the jury answered questions relating to the permanent
injunction and Klein’s counter-claims for breach of contract, defamation, and invasion of privacy.
The trial court entered judgment based on the jury’s findings, and Walls appeals.
IMPROPER JURY ARGUMENT
In her first issue, Walls asserts “Klein’s jury arguments were so extreme and unsupported
as to represent incurable error.” “To prevail on a claim that improper argument was incurable, the
complaining party generally must show that the argument by its nature, degree, and extent
constituted such error that an instruction from the court or retraction of the argument could not
remove its effects.” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680-81 (Tex. 2008).
“Examples of incurable improper jury arguments can include appeals to racial prejudice,
unsupported accusations of witness tampering by the opposing party, and unsupported, extreme,
and personal attacks on opposing parties and witnesses.” PopCap Games, Inc. v. MumboJumbo,
LLC, 350 S.W.3d 699, 721 (Tex. App.—Dallas 2011, pet. denied). “Reasonable inferences and
deductions from the evidence, by contrast, are permissible in closing argument.” Id. at 721.
“Hyperbole is also generally a permissible rhetorical technique in closing argument.” Id.
-2- 04-13-00565-CV
Having reviewed the closing argument made by Klein’s attorney, we overrule Walls’s
issue. Several of the arguments Walls cites in her brief were supported by direct evidence. 1 Other
arguments Walls cites were supported by the attorney’s inferences and deductions from the direct
evidence 2 and his use of hyperbole. 3 More importantly, however, we hold that none of the cited
arguments rises to the level of incurable improper jury argument as asserted by Walls in her brief.
Accordingly, Walls’s first issue is overruled.
AUTHENTICATION
In her second issue, Walls contends the trial court erred in admitting into evidence an
exhibit that was not properly authenticated. 4 The requirement of authentication “is satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent claims.”
TEX. R. EVID. 901(a). One method of authenticating a document is by testimony of a witness with
knowledge “that a matter is what it is claimed to be.” Id. at 901(b)(1). “We review a trial court’s
decision to admit or exclude evidence for an abuse of discretion.” In re J.P.B., 180 S.W.3d 570,
575 (Tex. 2005).
With regard to the exhibit in question, Klein testified that it was a page from Walls’s
Facebook page which he had seen may times. Klein further testified that he printed off the page
at a time when he had access to Walls’s Facebook page. The trial court did not abuse its discretion
in determining that this testimony was sufficient to satisfy the authentication requirement. See id.
1 For example, in response to whether Walls was cited with a criminal trespass warning by Temple Beth-El, Walls testified that she was issued a letter and asked not to return there. Klein testified that he was aware that Walls had been given a criminal trespass warning. 2 For example, Klein’s attorney was permitted to draw inferences about the validity of the criminal complaints reported by Walls from the authorities’ failure to pursue criminal charges against Klein. 3 The reference by Klein’s attorney to Klein’s desire to avoid a “nuclear bomb” is a permissible use of hyperbole. 4 Although Walls makes reference in her brief to Klein’s attorney suborning perjury by introducing two additional exhibits, her brief refers only to Defendant’s Exhibit 2 as not being properly authenticated. Since Walls’s second issue asserts the trial court erred in admitting evidence that was not properly authenticated, we only address the admissibility of Defendant’s Exhibit 2. See Hamilton v. Williams, 298 S.W.3d 334, 338 n.3 (Tex. App.—Fort Worth 2009, pet. denied) (noting appellate court can disregard any assignment of error that is multifarious).
-3- 04-13-00565-CV
Although Walls asserted in her objection that Klein had been blocked from accessing her Facebook
page prior to the date the page was printed, the trial court, in overruling her objection, responded
that Walls could impeach Klein about her contention. See In re J.A.S., No. 11-09-00176-CV, 2011
WL 704390, at *3 (Tex. App.—Eastland Jan. 13, 2011, no pet.) (noting testimony that document
is what it purports to be is sufficient to authenticate, “while the accuracy of the testimony is for
the factfinder”). Walls’s second issue is overruled.
INJUNCTION
In her third issue, Walls contends the trial court erred in granting the permanent injunction
in favor of Klein because it was unsupported by the jury’s findings and constituted an
unconstitutional prior restraint on speech. This court previously rejected Walls’s constitutionality
argument in our prior opinion affirming the trial court’s temporary injunction. Walls, 2013 WL
988179, at *2-5. Moreover, the jury found that Walls was liable for defamation and invasion of
privacy and committed acts with the intent to harass, annoy, intimidate, humiliate, or threaten
Klein. These findings are sufficient to support the permanent injunction. See Memon v. Shaikh,
401 S.W.3d 407, 423 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding jury’s defamation
finding supported permanent injunction); Bostow v. Bank of America, No. 14-04-00256-CV, 2006
WL 89446, at *6 (Tex. App.—Houston [14th Dist.] Jan. 17, 2006, no pet.) (holding jury’s finding
that party engaged in harassing behavior supported permanent injunction) (mem.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00565-CV
Kelly WALLS, Appellant
v. Daniel Daniel KLEIN, Appellee
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-11285 Honorable Dick Alcala, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice
Delivered and Filed: July 9, 2014
AFFIRMED
Kelly Walls appeals the trial court’s judgment granting a permanent injunction in favor of
Daniel Klein and awarding him damages for his breach of contract and defamation claims. On
appeal, Walls contends: (1) Klein’s attorney engaged in incurable improper jury argument; (2) the
trial court erred in admitting an exhibit that was not properly authenticated; (3) the injunction is
unsupported by the jury’s findings and constitutes an unconstitutional prior restraint on speech;
and (4) the trial court erred in failing to rule on Walls’s affirmative defenses. We affirm the trial
court’s judgment. 04-13-00565-CV
BACKGROUND
The factual and procedural background regarding the dispute between Walls and Klein is
set forth in detail in this court’s prior opinion modifying and affirming a temporary injunction in
Klein’s favor. See Walls v. Klein, No. 04-12-00615-CV, 2013 WL 988179, at *1-2 (Tex. App.—
San Antonio Mar. 13, 2013, no pet.) (mem. op.). After this court affirmed the temporary
injunction, a jury trial was held, and the jury answered questions relating to the permanent
injunction and Klein’s counter-claims for breach of contract, defamation, and invasion of privacy.
The trial court entered judgment based on the jury’s findings, and Walls appeals.
IMPROPER JURY ARGUMENT
In her first issue, Walls asserts “Klein’s jury arguments were so extreme and unsupported
as to represent incurable error.” “To prevail on a claim that improper argument was incurable, the
complaining party generally must show that the argument by its nature, degree, and extent
constituted such error that an instruction from the court or retraction of the argument could not
remove its effects.” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680-81 (Tex. 2008).
“Examples of incurable improper jury arguments can include appeals to racial prejudice,
unsupported accusations of witness tampering by the opposing party, and unsupported, extreme,
and personal attacks on opposing parties and witnesses.” PopCap Games, Inc. v. MumboJumbo,
LLC, 350 S.W.3d 699, 721 (Tex. App.—Dallas 2011, pet. denied). “Reasonable inferences and
deductions from the evidence, by contrast, are permissible in closing argument.” Id. at 721.
“Hyperbole is also generally a permissible rhetorical technique in closing argument.” Id.
-2- 04-13-00565-CV
Having reviewed the closing argument made by Klein’s attorney, we overrule Walls’s
issue. Several of the arguments Walls cites in her brief were supported by direct evidence. 1 Other
arguments Walls cites were supported by the attorney’s inferences and deductions from the direct
evidence 2 and his use of hyperbole. 3 More importantly, however, we hold that none of the cited
arguments rises to the level of incurable improper jury argument as asserted by Walls in her brief.
Accordingly, Walls’s first issue is overruled.
AUTHENTICATION
In her second issue, Walls contends the trial court erred in admitting into evidence an
exhibit that was not properly authenticated. 4 The requirement of authentication “is satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent claims.”
TEX. R. EVID. 901(a). One method of authenticating a document is by testimony of a witness with
knowledge “that a matter is what it is claimed to be.” Id. at 901(b)(1). “We review a trial court’s
decision to admit or exclude evidence for an abuse of discretion.” In re J.P.B., 180 S.W.3d 570,
575 (Tex. 2005).
With regard to the exhibit in question, Klein testified that it was a page from Walls’s
Facebook page which he had seen may times. Klein further testified that he printed off the page
at a time when he had access to Walls’s Facebook page. The trial court did not abuse its discretion
in determining that this testimony was sufficient to satisfy the authentication requirement. See id.
1 For example, in response to whether Walls was cited with a criminal trespass warning by Temple Beth-El, Walls testified that she was issued a letter and asked not to return there. Klein testified that he was aware that Walls had been given a criminal trespass warning. 2 For example, Klein’s attorney was permitted to draw inferences about the validity of the criminal complaints reported by Walls from the authorities’ failure to pursue criminal charges against Klein. 3 The reference by Klein’s attorney to Klein’s desire to avoid a “nuclear bomb” is a permissible use of hyperbole. 4 Although Walls makes reference in her brief to Klein’s attorney suborning perjury by introducing two additional exhibits, her brief refers only to Defendant’s Exhibit 2 as not being properly authenticated. Since Walls’s second issue asserts the trial court erred in admitting evidence that was not properly authenticated, we only address the admissibility of Defendant’s Exhibit 2. See Hamilton v. Williams, 298 S.W.3d 334, 338 n.3 (Tex. App.—Fort Worth 2009, pet. denied) (noting appellate court can disregard any assignment of error that is multifarious).
-3- 04-13-00565-CV
Although Walls asserted in her objection that Klein had been blocked from accessing her Facebook
page prior to the date the page was printed, the trial court, in overruling her objection, responded
that Walls could impeach Klein about her contention. See In re J.A.S., No. 11-09-00176-CV, 2011
WL 704390, at *3 (Tex. App.—Eastland Jan. 13, 2011, no pet.) (noting testimony that document
is what it purports to be is sufficient to authenticate, “while the accuracy of the testimony is for
the factfinder”). Walls’s second issue is overruled.
INJUNCTION
In her third issue, Walls contends the trial court erred in granting the permanent injunction
in favor of Klein because it was unsupported by the jury’s findings and constituted an
unconstitutional prior restraint on speech. This court previously rejected Walls’s constitutionality
argument in our prior opinion affirming the trial court’s temporary injunction. Walls, 2013 WL
988179, at *2-5. Moreover, the jury found that Walls was liable for defamation and invasion of
privacy and committed acts with the intent to harass, annoy, intimidate, humiliate, or threaten
Klein. These findings are sufficient to support the permanent injunction. See Memon v. Shaikh,
401 S.W.3d 407, 423 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding jury’s defamation
finding supported permanent injunction); Bostow v. Bank of America, No. 14-04-00256-CV, 2006
WL 89446, at *6 (Tex. App.—Houston [14th Dist.] Jan. 17, 2006, no pet.) (holding jury’s finding
that party engaged in harassing behavior supported permanent injunction) (mem. op.); see also
Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993) (suggesting permanent injunction could
be based on jury finding liability for invasion of privacy). Walls’s third issue is overruled.
AFFIRMATIVE DEFENSES
In her fourth issue, Walls contends the trial court erred in failing to rule on her affirmative
defenses. In her brief, Walls fails to even identify the affirmative defenses to which her complaint
relates. In addition, as Klein notes in his brief, Walls had the burden to request jury questions on -4- 04-13-00565-CV
her affirmative defenses, and by failing to make such a request, Walls failed to preserve this
complaint for our review. See AMS Const. Co. v. K.H.K. Scaffolding Houston, Inc., 357 S.W.3d
30, 43 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d); Palacios v. Robbins, No. 04-02-00338-
CV, 2003 WL 21502371, at *2 (Tex. App.—San Antonio July 2, 2003, pet. denied) (mem. op.);
Abraxus Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 763 (Tex. App.—El Paso 2000, no pet.).
Walls’s fourth issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
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