Latisha McFadden v. Greg Olesky and Rogelio Sanchez
This text of Latisha McFadden v. Greg Olesky and Rogelio Sanchez (Latisha McFadden v. Greg Olesky and Rogelio Sanchez) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
ACCEPTED 03-16-00067-CV 11192321 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/16/2016 5:19:58 PM JEFFREY D. KYLE CLERK 03-16-00067-CV ___________________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE TEXAS COURT OF APPEALS AUSTIN, TEXAS 6/17/2016 2:55:00 PM FOR THE THIRD JUDICIAL DISTRICT JEFFREY D. KYLE Clerk AUSTIN, TEXAS __________________________________________________________ LATISHA MCFADDEN, Appellant, v. Greg Olesky and Rogelio Sanchez, Appellee
On Appeal from the 353rd Judicial District Court of Travis County, Texas Cause No. D-1-GN-04-001222
APPELLANT’S BRIEF
RESPECTFULLY SUBMITTED,
/s/ Donald J. McCarthy
Donald J. McCarthy S.B. No. 00794256 The Law Office of Donald J. McCarthy 808 W. 11th Street Austin, Texas 78701 512-585-9151 512-477-1901 (FAX) dmccarthy@donaldmccarthylaw.com IDENTITY OF PARTIES AND COUNSEL
The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case.
Appellant: Latisha McFadden Represented by: Donald J. McCarthy Law Office of Donald J. McCarthy SB #00794256 808 W. 11th Street Austin, Texas 78701 (512) 585-9151 (512) 477-1901 (FAX) dmccarthy@donaldmccarthylaw.com
Appellees Greg Olesky and Rogelio Sanchez
Represented by: Henry Gray Laird S.B.N. 24087054 Andralee Lloyd CITY OF AUSTIN LAW DEPARTMENT P.O. BOX 1088 Austin, Texas 78767 (512) 974-1342 (512) 974-2894 (FAX) gray.laird@austintexas.gov Andralee.lloyd@austintexas.gov CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been sent on June 16, 2016, to Mr. H. Gray Laird, Assistant Austin City Attorney and Ms. Andralee Lloyd, Assistant Austin City Attorney, counsel for Defendants via US Postal Service to the address indicated below.
Henry Gray Laird gray.laird@austintexas.gov Andralee Lloyd Andralee.lloyd@austintexas.gov
/s/ Donald J. McCarthy Donald J. McCarthy ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE I certify that Appellant's Brief complies with the Court's word limit and is 11,207 words.
/s/ Donald J. McCarthy Donald J. McCarthy TABLE OF CONTENTS
INDEX OF AUTHORITIES...................................................................................i-ii
ISSUES PRESENTED.....…....................................................................................iii
STATEMENT OF THE CASE ………………………………………………… iv
STATEMENT OF FACTS………………………………………………………... 1
SUMMARY OF THE ARGUMENTS…………………………………………... 18
ISSUE ONE……………………………………………………………………... 19
ISSUE TWO…………………………………………………………………….. 36
PRAYER………………………………………………………………………… 42 INDEX OF AUTHORITIES CASES:
Armstrong v. West Tex. Rig Co., 339 S.W. 69, 74 (Tex. Civ. App. – El Paso 1960, writ ref’d n.r.e)…………………………………………………………………… 28 Banda v. State, 768 S.W. 2d 294, 296 (Tex. Crim. App. 1989)…………………. 36 Chaplinsky v. New Hampshire, 35 U.S. 568 (1943)…………………………….. 33 Combined Am. Ins. Co. v. Blanton, 353 S.W. 2d 847, 849 (Tex. 1962)…………. 22 De La Paz v. State, 279 S.W. 3d 336, 343 (Tex. Crim. App. 2009)……………. 39 Downer v. Aquamarine Operators, Inc., 701 S.W. 2d 238 (Tex. 1985)……… 28 Glover v. Henry, 749 S.W. 2d 502, 504 (Tex. App. – Eastland 1988), no writ….29 Goggin v. State, 123 S.W. 3d 83, 90 (Tex. App. – Austin 2003), rev. ref’d.... 33-34 Green Tree Financial Corp. v. Garcia, 988 S.W. 2d 776 (Tex. App. – San Antonio 1999), no pet………………………………………………………………… 20-21 Jimmerson v. State, 561 S.W. 3d 5, 7 (Tex. Crim App. 1979)………………… 33 Kroger Tex. L.P. v. Suberu, 215 S.W. 3d 788 (Tex. 2006)…………….. 20. 24, 25 Lee v. Kline, No. 14-98-00268-CV, 200 WL 19227 (Tex. App. – Houston [14th Dist.] 2000), rev. denied……………………………………………………….. 29 Reinhart v. Young, 906 S.W. 2d 471, 473 (Tex. 1995)………………………... 35 Richey v. Brookshire Grocery Co., 952 S.W. 2d 515, 517-21 (Tex. 1996)…………………………………………………………………….. 22, 24, 25 Santellan v. State, 939 S.W. 2d 155, 169 (Tex. Crim. App. 1997)……………….40 Sears, Roebuck & Co. v. Menegay, 907 S.W. 2d 72, 74 (Tex. App. – Fort Worth 1995), no writ…………………………………………………………………… 39 Texas A & M University v. Chambers, 31 S.W. 3d 780, 783-785 (Tex. App. – Austin 2000), rev. denied……………………………………….. 26, 28, 29, 31, 35 STATUTES AND RULES
Tex. R. Evid. 401…………………………………………………………37 Tex. R. Evid. 402…………………………………………………………37 Tex. R. Evid. 403………………………………………………………… Tex. R. Evid. 404…………………………………………………… 36. 39
OFFICIAL STATE BAR GUIDE Texas Pattern Jury Charge 6.4………………………………………… 20-21
SECONDARY SOURCES O’Connor’s Texas Rules of Evidence, p. 178…………………………. 38 ISSUES PRESENTED
POINT OF ERROR NUMBER ONE:
THE TRIAL COURT COMMITTED ERROR, ABUSED ITS DISCRETION BY ACTING WITHOUT REFERENCE TO ANY GUIDING RULES OR PRINCIPLES, AND THE ERROR RESULTED IN HARM TO PLAINTIFF BY DENIAL OF DUE PROCESS AND DUE COURSE OF LAW BECAUSE THE COURT EFFECTIVELY COMMENTED UPON THE EVIDENCE BY INSERTING AS THE FIRST JURY QUESTION AN ISSUE THAT HAS NO PLACE IN A CHARGE ON MALICIOUS PROSECUTION. AT THE VERY LEAST, THE COURT REVERSED THE PROPER ORDER OF THE JURY CHARGE ON MALICIOUS PROSECUTION, THEREBY DENYING APPELLANT DUE PROCESS AND DUE COURSE OF LAW.
POINT OF ERROR NUMBER TWO:
THE TRIAL COURT COMMITTED ERROR AND ABUSE OF DISCRETION BY NOT ALLOWING EVIDENCE OF A SIMILAR OR MORE SERIOUS ALLEGED CRIME COMMITTED BY DEFENDANT ROGELIO SANCHEZ BEING TREATED WITH A SOLICITOUS DRIVE TO OFFICER SANCHEZ’S HOME AND A LIGHT INTERNAL DISCIPLINARY ACTION. STATEMENT OF THE CASE
This is a suit by Latisha McFadden filed against Austin Police Officers Greg Olesky, Rogelio Sanchez, Michael Pollard and Tamara Joseph. The suit was filed for malicious prosecution, assault and false imprisonment. Joseph was not sued for malicious prosecution. Judge Orlinda Naranjo dismissed the Plaintiff’s claims in 2009. This court in 03-09-99187-CV, McFadden v Olesky, et al, 440 S.W. 3d 646 (Tex-App – Austin 2010) no pet., confirmed the decision in par, and reversed the decision in part and remanded the malicious prosecution cliam so three Defendants remained. The case was tried in November of 2015 in Hon. Judge Orlinda Naranjo’s Court. Judge Naranjo dismissed Defendant Pollard after the Plaintiff rested and the case continued against Olesky and Sanchez. After a trial before jury the jury decided in the favor of Olesky and Sanchez, 10-2. Also, final judgment was rendered on or about January 5, 2016. Appellant timely appealed this matter on or about February 4, 2016. STATEMENT OF FACTS
McFadden. Latisha Yvonne McFadden is the Plaintiff-Appellant in this
case. McFadden is 5’3” 115 pounds. (RR Vol. 4 p. 34: 5 - 24). She was indicted
and tried for assaulting a 6/2” 235 pound officer. She was acquitted. She is a
cardiovascular surgical assistant who specializes in the surgical approach to heart
procedures. (RR Vol. 4 p. 5: 5 to 6:4). She is trained in trauma, pediatric trauma,
neuro, ortho, general, DBS or deep; brain stimulation with Dr. Buchanan
emphasizing Parkinsons disease and Tourettes and other neurological diseases and
in robotics. (RR Vol. 4 p. 6: 7 to 7:5). She has a number of certifications and
degrees. (RR Vol. 4 p. 7: 6-13). She has to go through background checks and
drug tests to work in her field. (RR Vol. 4:8 to 9:5). While out on bond pending
her criminal trial she had to undergo many such tests. (RR Vol. 4 at 9: 2 to 10: 3).
She had to report and do weekly drug tests. Id.
In 2003 she was visiting one evening with her sister and her friend Leslie
Alexander and after midnight they decided to go to a club and listen to music. (RR
Vol. 4 p. 10: 4 to 11: 6). Id. McFadden ordered one beer but was not able to finish
it as she danced a lot and talked with her friends about “girl stuff”. (RR Vol. 4 p.
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ACCEPTED 03-16-00067-CV 11192321 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/16/2016 5:19:58 PM JEFFREY D. KYLE CLERK 03-16-00067-CV ___________________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE TEXAS COURT OF APPEALS AUSTIN, TEXAS 6/17/2016 2:55:00 PM FOR THE THIRD JUDICIAL DISTRICT JEFFREY D. KYLE Clerk AUSTIN, TEXAS __________________________________________________________ LATISHA MCFADDEN, Appellant, v. Greg Olesky and Rogelio Sanchez, Appellee
On Appeal from the 353rd Judicial District Court of Travis County, Texas Cause No. D-1-GN-04-001222
APPELLANT’S BRIEF
RESPECTFULLY SUBMITTED,
/s/ Donald J. McCarthy
Donald J. McCarthy S.B. No. 00794256 The Law Office of Donald J. McCarthy 808 W. 11th Street Austin, Texas 78701 512-585-9151 512-477-1901 (FAX) dmccarthy@donaldmccarthylaw.com IDENTITY OF PARTIES AND COUNSEL
The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case.
Appellant: Latisha McFadden Represented by: Donald J. McCarthy Law Office of Donald J. McCarthy SB #00794256 808 W. 11th Street Austin, Texas 78701 (512) 585-9151 (512) 477-1901 (FAX) dmccarthy@donaldmccarthylaw.com
Appellees Greg Olesky and Rogelio Sanchez
Represented by: Henry Gray Laird S.B.N. 24087054 Andralee Lloyd CITY OF AUSTIN LAW DEPARTMENT P.O. BOX 1088 Austin, Texas 78767 (512) 974-1342 (512) 974-2894 (FAX) gray.laird@austintexas.gov Andralee.lloyd@austintexas.gov CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been sent on June 16, 2016, to Mr. H. Gray Laird, Assistant Austin City Attorney and Ms. Andralee Lloyd, Assistant Austin City Attorney, counsel for Defendants via US Postal Service to the address indicated below.
Henry Gray Laird gray.laird@austintexas.gov Andralee Lloyd Andralee.lloyd@austintexas.gov
/s/ Donald J. McCarthy Donald J. McCarthy ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE I certify that Appellant's Brief complies with the Court's word limit and is 11,207 words.
/s/ Donald J. McCarthy Donald J. McCarthy TABLE OF CONTENTS
INDEX OF AUTHORITIES...................................................................................i-ii
ISSUES PRESENTED.....…....................................................................................iii
STATEMENT OF THE CASE ………………………………………………… iv
STATEMENT OF FACTS………………………………………………………... 1
SUMMARY OF THE ARGUMENTS…………………………………………... 18
ISSUE ONE……………………………………………………………………... 19
ISSUE TWO…………………………………………………………………….. 36
PRAYER………………………………………………………………………… 42 INDEX OF AUTHORITIES CASES:
Armstrong v. West Tex. Rig Co., 339 S.W. 69, 74 (Tex. Civ. App. – El Paso 1960, writ ref’d n.r.e)…………………………………………………………………… 28 Banda v. State, 768 S.W. 2d 294, 296 (Tex. Crim. App. 1989)…………………. 36 Chaplinsky v. New Hampshire, 35 U.S. 568 (1943)…………………………….. 33 Combined Am. Ins. Co. v. Blanton, 353 S.W. 2d 847, 849 (Tex. 1962)…………. 22 De La Paz v. State, 279 S.W. 3d 336, 343 (Tex. Crim. App. 2009)……………. 39 Downer v. Aquamarine Operators, Inc., 701 S.W. 2d 238 (Tex. 1985)……… 28 Glover v. Henry, 749 S.W. 2d 502, 504 (Tex. App. – Eastland 1988), no writ….29 Goggin v. State, 123 S.W. 3d 83, 90 (Tex. App. – Austin 2003), rev. ref’d.... 33-34 Green Tree Financial Corp. v. Garcia, 988 S.W. 2d 776 (Tex. App. – San Antonio 1999), no pet………………………………………………………………… 20-21 Jimmerson v. State, 561 S.W. 3d 5, 7 (Tex. Crim App. 1979)………………… 33 Kroger Tex. L.P. v. Suberu, 215 S.W. 3d 788 (Tex. 2006)…………….. 20. 24, 25 Lee v. Kline, No. 14-98-00268-CV, 200 WL 19227 (Tex. App. – Houston [14th Dist.] 2000), rev. denied……………………………………………………….. 29 Reinhart v. Young, 906 S.W. 2d 471, 473 (Tex. 1995)………………………... 35 Richey v. Brookshire Grocery Co., 952 S.W. 2d 515, 517-21 (Tex. 1996)…………………………………………………………………….. 22, 24, 25 Santellan v. State, 939 S.W. 2d 155, 169 (Tex. Crim. App. 1997)……………….40 Sears, Roebuck & Co. v. Menegay, 907 S.W. 2d 72, 74 (Tex. App. – Fort Worth 1995), no writ…………………………………………………………………… 39 Texas A & M University v. Chambers, 31 S.W. 3d 780, 783-785 (Tex. App. – Austin 2000), rev. denied……………………………………….. 26, 28, 29, 31, 35 STATUTES AND RULES
Tex. R. Evid. 401…………………………………………………………37 Tex. R. Evid. 402…………………………………………………………37 Tex. R. Evid. 403………………………………………………………… Tex. R. Evid. 404…………………………………………………… 36. 39
OFFICIAL STATE BAR GUIDE Texas Pattern Jury Charge 6.4………………………………………… 20-21
SECONDARY SOURCES O’Connor’s Texas Rules of Evidence, p. 178…………………………. 38 ISSUES PRESENTED
POINT OF ERROR NUMBER ONE:
THE TRIAL COURT COMMITTED ERROR, ABUSED ITS DISCRETION BY ACTING WITHOUT REFERENCE TO ANY GUIDING RULES OR PRINCIPLES, AND THE ERROR RESULTED IN HARM TO PLAINTIFF BY DENIAL OF DUE PROCESS AND DUE COURSE OF LAW BECAUSE THE COURT EFFECTIVELY COMMENTED UPON THE EVIDENCE BY INSERTING AS THE FIRST JURY QUESTION AN ISSUE THAT HAS NO PLACE IN A CHARGE ON MALICIOUS PROSECUTION. AT THE VERY LEAST, THE COURT REVERSED THE PROPER ORDER OF THE JURY CHARGE ON MALICIOUS PROSECUTION, THEREBY DENYING APPELLANT DUE PROCESS AND DUE COURSE OF LAW.
POINT OF ERROR NUMBER TWO:
THE TRIAL COURT COMMITTED ERROR AND ABUSE OF DISCRETION BY NOT ALLOWING EVIDENCE OF A SIMILAR OR MORE SERIOUS ALLEGED CRIME COMMITTED BY DEFENDANT ROGELIO SANCHEZ BEING TREATED WITH A SOLICITOUS DRIVE TO OFFICER SANCHEZ’S HOME AND A LIGHT INTERNAL DISCIPLINARY ACTION. STATEMENT OF THE CASE
This is a suit by Latisha McFadden filed against Austin Police Officers Greg Olesky, Rogelio Sanchez, Michael Pollard and Tamara Joseph. The suit was filed for malicious prosecution, assault and false imprisonment. Joseph was not sued for malicious prosecution. Judge Orlinda Naranjo dismissed the Plaintiff’s claims in 2009. This court in 03-09-99187-CV, McFadden v Olesky, et al, 440 S.W. 3d 646 (Tex-App – Austin 2010) no pet., confirmed the decision in par, and reversed the decision in part and remanded the malicious prosecution cliam so three Defendants remained. The case was tried in November of 2015 in Hon. Judge Orlinda Naranjo’s Court. Judge Naranjo dismissed Defendant Pollard after the Plaintiff rested and the case continued against Olesky and Sanchez. After a trial before jury the jury decided in the favor of Olesky and Sanchez, 10-2. Also, final judgment was rendered on or about January 5, 2016. Appellant timely appealed this matter on or about February 4, 2016. STATEMENT OF FACTS
McFadden. Latisha Yvonne McFadden is the Plaintiff-Appellant in this
case. McFadden is 5’3” 115 pounds. (RR Vol. 4 p. 34: 5 - 24). She was indicted
and tried for assaulting a 6/2” 235 pound officer. She was acquitted. She is a
cardiovascular surgical assistant who specializes in the surgical approach to heart
procedures. (RR Vol. 4 p. 5: 5 to 6:4). She is trained in trauma, pediatric trauma,
neuro, ortho, general, DBS or deep; brain stimulation with Dr. Buchanan
emphasizing Parkinsons disease and Tourettes and other neurological diseases and
in robotics. (RR Vol. 4 p. 6: 7 to 7:5). She has a number of certifications and
degrees. (RR Vol. 4 p. 7: 6-13). She has to go through background checks and
drug tests to work in her field. (RR Vol. 4:8 to 9:5). While out on bond pending
her criminal trial she had to undergo many such tests. (RR Vol. 4 at 9: 2 to 10: 3).
She had to report and do weekly drug tests. Id.
In 2003 she was visiting one evening with her sister and her friend Leslie
Alexander and after midnight they decided to go to a club and listen to music. (RR
Vol. 4 p. 10: 4 to 11: 6). Id. McFadden ordered one beer but was not able to finish
it as she danced a lot and talked with her friends about “girl stuff”. (RR Vol. 4 p.
11: 15 to p. 12: 17). After they left the club shortly after arriving to go back to
their car Ms. McFadden hears a rude comment from a man across the street. (RR
Vol. 4 p. 12: 18 to p. 14: 6). McFadden’s party ultimately came to the parking lot 1|Page where the car was parked. (RR Vol. 4 p. 15:11 to 16: 10). Their friend Hoagy is
standing at the back of their vehicle which is backed in. Id. McFadden talked to
Hoagy but the man across the street continued to make disparaging comments.
(RR Vol. 4 p. 16: 11-15). Ms. McFadden continued to be involved in this friendly
discussion with Hoagy, but the guy across the street continued his harassment.
(RR Vol. 4 p. 16: 11 to p. 18: 5). She curses back at the gentleman across the
street and then Officer Sanchez appeared and said shut your “f…ing ass up.” Id.
She turns to the Officer but when she hears another negative comment from across
the street and while complying with the officer’s request she gives that person the
finger. Id. Sanchez then grabs her arm. Id. She says the officers then “cranked”
her arm up her back and pepper sprayed her. (RR Vol. 4 p. 18:9 to 19:18).
McFadden then testified that as she is on the ground with pepper spray in her eyes
she wants to get her arms loose to rub out the spray. (RR Vol. 4 p. 20: 3-25). She
says she is screaming and while she is on the ground the officers are giving her
conflicting orders. (RR Vol. 4 p. 21: 2 to 23: 19). She was beaten while she was
on the ground and she felt the officers hands moving all over her. (Id).
Alexander. Leslie Alexander testified that McFadden went to 6th street
with her. Ms. Alexander is a 20 year plus employee of the State who is a buyer for
the School for the Blind. She has known Ms. McFadden since they were children,
and they even get together on holidays. (RR Vol. 2 p. 5: 18-25). She said they got
2|Page to the club late, and she ordered an 8 ounce cranberry juice and Latisha ordered a
beer which she did not have time to finish. (RR Vol. 2 p.6: 24 to 7: 5.) Alexander
says her friend Sonya was with them. (RR Vol. 2 p. 7: 6-7). The place closed
shortly after they arrived and they headed to Leslie's car at 6th and IH35. (RR Vol.
2, p. 7: 12-16). Alexander was 7 months pregnant at the time. (RR Vol. 2 p. 7: 8-
11). Alexander agrees that Latisha was talking with Hoagy once they arrived at the
parking lot. (RR Vol. 2 p. 7: 17 to 8: 1). They walked a short distance from the
club to reach the parking lot. (RR Vol. 2 p. 8: 10-15). A lot of people were walking
and a number were also talking in the parking lot. (RR Vol. 2 p. 9: 7-15).
Alexander says she and McFadden heard the voice initially from across the street
as they walked. (RR Vol. 2 p. 9: 19-24). As this shouting from across the street
was still occurring when they reached the parking lot, police officers on bicycles
"came up." (RR Vol. 2 p. 13: 3-11). Alexander says they were near her car which
was in the southwest corner of the parking lot when the officers arrived. (Vol. 2 p.
13: 12-24). Alexander indicated that in addition to Hoagy and Latisha talking,
there was a group of friends talking in the parking lot. (RR Vol. 2 p. 14: 2-12).
Alexander was 3 feet from Latisha at this point. (RR Vol. 2 p. 14: 13-14). Hoagy
and Latisha and he were having a friendly conversation. (RR Vol. 2 p. 14: 15 to 15:
21). The man across the street was now at a distance and no one was paying him
any attention. (RR Vol. 2 p. 15: 24 to p. 16: 25). They had difficulty hearing the
3|Page man clearly because he was facing west. (RR Vol. 2 p. 50: 24 to p. 51:3). Officer
Sanchez told Latisha to shut up and she did. (RR Vol. 2 p. 54: 7-19). Latisha gave
the finger to the guy across the street. (RR Vol. 2 p. 17: 1-5).
When the first officer arrived, he did the following: (a) threw his bike down;
(b) snapped his helmet off and threw it down; (c) grabbed Latisha by her wrist and
twisted her arm to her back, causing her to move forward; and (d) blurted out I am
going to arrest you. (RR Vol. 2 p. 17: 21 to p. 18: 5). Alexander was a couple of
feet away from Latisha when she was grabbed. (RR Vol. 2 p. 19: 9-16). Alexander
acknowledges that the officer yelled they needed to leave before the officer
grabbed Latisha. (RR Vol 2 p. 18: 17-21). She said they did start to leave, (Vol. 2
p. 18:22 to 19: 1). Alexander says Ms. McFadden was trying to leave with her.
(RR Vol. 2 p. 19: 2-8). Alexander said when the officer grabbed Latisha he twisted
her arm up her back so far that it made her lean down. (RR Vol. 2 p. 19: 19-24).
She said that McFadden showed a lot of pain in her face at that point. (RR Vol. 2 p.
19: 25 to 20:3). Prior to being grabbed by the officer, Alexander had observed no
instance of McFadden disobeying any order from the officer. (RR Vol. 2 p. 20: 9-
11). Alexander says that McFadden did not try to resist arrest. (RR Vol. 2 p. 20:
12-14). Early on the officer said that I am going to arrest you. (RR Vol. 2 p. 21: 21
to p. 22: 3). He actually arrested Latisha in front of Alexander's car, (RR Vol. 2 p.
22: 6-8). Sanchez was holding her arm so far up her back, McFadden fell down to
4|Page her knees. (RR Vol. 2 p. 22: 13-17). At this point her hands were above her head.
(RR Vol. 2 p. 23:-23). When the arrest was made and her arm grabbed, McFadden
fell to her knees. (RR Vol. 2 p. 2: 2-7). She said police came from everywhere on
cars, bicycles, cars and even a bus came. (RR Vol. 2 p. 24: 8 to 25: 6). Alexander
says the police drug McFadden across the asphalt parking lot. Id. Police
surrounded her and were kicking her. Id. McFadden kicked too, but it was not at
the officers but instead was an attempt to get relief from the chemical spray. Id and
(RR Vol. 2 p. 58: 21-25). Alexander started to yell that McFadden was pregnant in
an attempt to find something that might make them stop. Id. She said these men
were kicking her and she barely weighed more than 100 pounds. Id (McFadden
testified she weighed 115 pounds). According to Alexander, McFadden's kicks hit
the ground and not the officers. (RR Vol. 2 p. 59: 17-19). McFadden's top came
off and her breasts were exposed. (RR Vol. 2 p. 25: 16-21). No officer attempted
to give her aid. Id. When the officers were kicking McFadden, another officer
slammed Alexander's let in the door. Id. Horses obstructed views from the
sidewalk. Id. Alexander's view after she and Sonya got inside her car became
partially obstructed after the officers drugged McFadden across the parking lot. Id.
They were in a huddle kicking Latisha. Id. She was dragged across the parking lot
with her breasts exposed. (RR Vol. 2 p. 26: 15-23). Officers positioned themselves
in front of Leslie's vehicle in order to obstruct her vision. (RR Vol. 2 p. 27: 6-14).
5|Page The horses were used to block the vision of others. (RR Vol. 2 p. 28: 19-25). The
crowd was screaming and attempting to get the police to stop beating McFadden.
(RR Vol. 2 p. 30: 10-22). While she was handcuffed and in the middle of the
parking lot she was pepper sprayed. (RR Vol. 2 p. 32: 4-10). Ms. McFadden did
kick when she was on her butt with her hands handcuffed above her head. Id. Her
shoes were not on when she was kicking. (Vol. 2 p. 30: 17-18). Alexander e said
they put her on her stomach and hog tied her feet to her hands with handcuffs. (RR
Vol. 2 p. 34: 3-12). While this was occurring, McFadden was screaming out they
are going to kill me. (RR Vol. 2 p. 34: 18-21). Alexander said that McFadden was
hog-tied in the middle of the parking lot for at least 10 minutes while she continued
to yell and scream. (RR Vol. 2 p. 35: 4-23). While she was sitting in the parking lot
on her stomach awaiting transport, no oficer attempted to administer her aid. Id.
Her breasts were fully exposed during this time period. (RR Vol. 2 p. 36: 1-2).
After Ms. McFadden was loaded into the police vehicle, Alexander attempted to
follow the police van but was pulled over by an officer when she exited the parking
lot. She was stopped as a result of the incident. (RR Vol. 2 p. 64: 10-16).
After being stopped, Alexander and Sonya were unable to follow the van so
they drove to the jail, (RR Vol. 2 p. 37: 1-10). They were informed that Ms.
McFadden was not listed. Id. The police van could have gotten to the jail in less
than a minute if it drove through the alley way to the jail and no more than 5
6|Page minutes if they had taken the street and driven around the block. (RR Vol. 2 p. 72:
8-13). Alexander testified that they then called their Pastor, Sterling Lands, for
help. Id. They went to meet Pastor Lands early that morning. (RR Vol. p. 38: 4-9).
Alexander then entered the hospital for 3 1/2 weeks. (RR Vol. 2 p. 38: 17-18). As a
result of the arrest McFadden changed and is very much afraid. (RR Vol. 2 p. 39:
18 to 40: 5).
Officers Testimony and McFadden. Officer Rogelio Sanchez, one of the
Defendant-Appellees in this case, is a 25 year officer with the Police Department.
He has been commended for being in shape on his evaluations. (RR Vol. 3 p. 6
lines 2-7). He is 5'7" tall and weighs 165 pounds. (RR Vol. 3 p. 7 lines 2-7).
Sanchez, the arresting officer, filed a police report that night. (RR Vol. 3 p. 7 lines
23-25). Sanchez testified that he has arrested people who are larger than him one
on one. (RR Vol. 3 p. 8 lines 1-12). He acknowledges that he was physically
superior to Ms. McFadden. Id. Sanchez says that McFadden was arguing with an
individual in the same parking lot about 15 feet away. (RR Vol. 3 p. 8 line 20 to p.
9 line 25). He says there was no one across the street. Id. Sanchez said they never
identified the man in the parking lot who they said was arguing with McFadden.
(RR Vol. 3 p. 10 lines 4-9). Sanchez thought there was some relationship between
McFadden and the person they said she was arguing with in the parking lot. (RR
Vol. 3 p. 10 10-14). Sanchez could not hear what they were saying but they were
7|Page arguing. (RR Vol. 3 p. 10 Lines 10-25). He said it was a verbal disturbance. (RR
Vol. 3 p. 11 lines 1-5). The black male in the parking lot did leave. (RR Vol. 3
page 11 lines 6-7). Sanchez, the first officer to initiate contact and the one who
placed her under arrest, testified that Ms. McFadden did not assault him. (RR Vol.
3 p. 11 lines 22-24). He testified he decided to arrest McFadden because she
flipped the finger at the man she was arguing with (i.e. FOR DISORDERLY
CONDUCT). (RR Vol. 3 p. 12 lines 13-21). Sanchez, however, never obtained the
name of the subject to determine if he was offended by the gesture. (RR Vol. 3 p.
12 lines 12-22). Sanchez admits it is important to gather all of the facts before
deciding what is happening and taking action. (RR Vol. 3 p. 13 lines 19-23).
Sanchez acknowledges that persons have a right to use profane language. (RR Vol.
3 p. 13 line 24 to p. 14 line 5). He further testified that this also includes the right
to make an obscene gesture. Id. As far as people gathering in the parking lot.
Sanchez testified this is not uncommon. (RR Vol. 3 p. 14 lines 6-14). He said that
the parking lot was a public place, (RR Vol. 3 p. 14 lines 15-17). Sanchez admits
they had a right to argue in the parking lot. (RR Vol. 3 p. 15 line 22 to p. 16 line 2).
He said further that they had a right to even argue in the parking lot. Id. Sanchez
acknowledged in his testimony that all important details should be in his report,
and that he mentions nothing about how McFadden was making threats. (RR Vol.
3 p. 16 lines 3-15). He did say in his report he thought it appeared Ms. McFadden
8|Page was trying to provoke a fight. (RR Vol. 3 p. 17 lines 5-12). Sanchez admits that his
order must be lawful. (RR Vol. 3 p. 18 lines 5-8). He then says the order to leave
not being followed was the reason for the arres) (RR Vol. 3 p. 18 lines 9-12).
Sanchez says you should not arrest someone when it simply appears that they are
about to provoke a fight. (RR Vol. 3 p. 19 lines 1-4). He also testified that he could
simply have given Ms. McFadden a citation. (RR Vol. 3 p. 44 lines 13-25).
Sanchez acknowledges he has special training in executing arrests. (RR Vol.
3 p. 19 lines 5-23). He says when someone pulls away like he alleges Ms.
McFadden did, you re-approach and assert yourself. Id. You simply reapproach
and assert your superiority. Id. Sanchez testified that Officer Olesky joined him
after he says McFadden pulled away and they both attempt to put handcuffs on her.
(RR Vol. 3 p. 20 lines 2-24). He says Olesky is a big man, stronger than he is, and
the kind of guy you want on your side in a fight. Id. He says they finally got her to
the ground. (RR Vol. 3 page 21 lines 3-12). He does not know how she was taken
to the ground but his hands were on her when this was done. (RR Vol. 3 p. 21 lines
16-24). He says throughout the struggle McFadden did not hit him with her other
arm. (RR Vol. 3 p. 22 lines 23-24). Sanchez also says McFadden never kicked him.
(RR Vol. 3 p. 23 lines 1-2). Sanchez testified that he had a hold of her arm longer
than any other officer. (Vol. 3 p. 23 lines 9-23). Sanchez acknowledges that the
APD use of force policy says chemical weapons are to be used to result in
9|Page temporary dysfunction. (RR Vol. 3 p. 23 line 13 to p. 24 line 24). He says they
should not be used until other efforts have failed, the suspect is volatile and
resisting and they are unable to control the suspect. Id. He testified that when the
chemical weapon was used, Ms. McFadden was on the ground and her arms were
still being held. (RR Vol. 3 p. 24 line 25 to p. 25 line 2). He did not say in his
report that Olesky was sprayed with a chemical weapon. (RR Vol. 3 p. 25 lines 3-
11). Sanchez admits that APD policy requires that persons subjected to chemical
weapons "as soon as they are under control" be afforded means of cleansing the
chemical agent. (RR Vol. 3 p. 25 lines 15-23). He said the policy was applicable
that evening. (RR Vol. 3 p. 25 lines 21-23). They had an obligation to help her
cleanse the agent once she was under control. (RR Vol. 3 page 25 line 24 to p. 26
line 3). However, he admits that while she was in the parking lot she was provided
no such assistance. (RR Vol. 3 page 26 lines 4-9). He disputes what Alexander
says about Latisha being hog tied and says she was cuffed in a prone position. (RR
Vol. 3 p. 27 lines 2-20). The officers testified that because she was so difficult to
arrest it took a team of officers to subdue her. He says that once one of two arguing
parties leaves there is no longer a problem. (RR Vol. 3 p. 77 lines 3-17).
Sanchez says that officers off duty should be treated the same as citizens.
(RR Vol. 3 p. 29 lines 1-8). The court, however, prevents counsel from asking
10 | P a g e questions about an off duty incident involving Sanchez, and says it will reconsider
later after reading our brief. (RR Vol. 3 p. 31 line 24).
Sanchez admits his report as the arresting officer has nothing in it
concerning important details such as Joseph or Olesky being struck or kicked in the
stomach though they should be there. (RR Vol. 3 p. 32 lines 2-22). He
acknowledges that his report was provided to the officer who prepared the
probable cause affidavit as a basis for it. Id. He admits that the probable cause
affidavit expressly says the reports were used as a basis for it. (RR Vol. 3 p. 32 line
23 to p. 33 line 1). He also admits meeting with the district attorney, telling them
what is essentially in his report and he actually testified at Ms. McFadden's
criminal trial. (RR Vol. 3 p. 33 lines 2-17). She was found not guilty of the charge.
(RR Vol. 3 p. 34 lines 1-11). Sanchez also testified that there is nothing in his
reports about assisting McFadden to see a nurse or McFadden saying you cannot
arrest me. (RR Vol. 3 p. 44 lines 16-25). He also acknowledges that neither he nor
any of the other officers includes the fact that her blouse was off and she was
exposed to the public in their reports. (RR Vol. 3 p. 57 lines 16-24). However,
Sanchez says he does not feel bad about leaving it out. (RR Vol. 3 p. 58 lines 11-
17). He says that his report was absolutely the basis for the probable cause
affidavit. Id. He met with the district attorney prior to the case being presented to
the grand jury. (RR Vol. 3 p. 59 lines 12-18). And he testified consistent with his
11 | P a g e report in the criminal case. (RR Vol. 3 p. 59 lines 19-21). Sanchez acknowledges
in his testimony that he has a duty to see that justice is done and not wrongfully
charge people with crimes. (RR Vol. 3 p. 60 lines 17-23). He says people do argue
regularly on 6th street and they ask them to move on. (RR Vol. 3 p. 66 lines 10-
15). He admits there were techniques that would permit them to subdue a resisting
person such as a rear wrist lock. (RR Vol. 3 p. 69 line 8 to p. 70 line 3). Sanchez
testified he never told Ms. McFadden not to give a gesture. (RR Vol. 3 p. 71 lines
6-14).
Sanchez admits that false facts cannot provide a basis for probable cause. Id.
He testified that an officer can only use reasonable force. (RR Vol. 3 p. 35 lines 3-
9). He acknowledges that if unreasonable force is used a citizen can fight back. Id.
He acknowledges officers should follow the law and refrain from giving orders for
people to leave places where they have a right to be. (RR Vol. 3 p. 35 lines 9-24).
Sanchez testified that giving the finger even to an officer is not disorderly conduct.
(RR Vol. 3 p. 47 lines 2-21). And he admits that the presence of law enforcement
officers when there is a loud noise incident, it should be less likely that a breach of
the peace would result. (RR Vol. 3 p. 47 line 22 to p. 48 line 3). He acknowledges
it is appropriate for people to argue. (RR Vol. 3 p.49 lines 2-18). And in regards to
the man he says was involved in the incident, Sanchez acknowledges he knows
nothing about his credibility. (R Vol. 3 p. 50 lines 14-16). Sanchez testified that the
12 | P a g e statements in his report that she was verbally and physically aggressive equals
disorderly conduct. (RR Vol. 3 p. 88 lines 4-16). He says he never asked Ms
McFadden what was going on prior to arresting her. (RR Vol. 3 p. 101 lines10-
17).
Sanchez admits there were numerous civilian witnesses to the incident, but
the officers declined to get a single name and based their allegations solely on what
the officers said. (RR Vol. 3 p. 38 lines 1-16). Sanchez says he has partnered with
a number of the other officers who were there that evening and that teamwork is
emphasized. (RRVol. 3 p. 38 line 17 to p. 39 line 2). If another officer has a
concern he will help him. (RR Vol. 3 p. 39 lines 3-11). He acknowledges that in an
investigation you identify witnesses to get a full understanding of what happened.
(RR Vol. 3 p. 39 line 22 to p. 40 line 8).
Officer Greg Olesky, another Defendant Appellee in this case, is a 19-year
Officer of the Austin Police Department. He was a 6-year officer at the time of the
incident. He was 6'2" and 235 pounds and admittedly much stronger than Ms.
McFadden. (RR Vol. 5 p. 4 lines 11-13). He testified that he was far superior in
terms of size and strength compared to Ms. McFadden. (RR Vol. 5 lines 23-25).
He testified that the matter started with an argument between McFadden and a
Black Male. (RR Vol. 5 p. 13 lines 4-15). Olesky says while this was occurring the
Black Male was leaving. (RR Vol. 5 p. 14 lines 3-8). He says the man did leave but
13 | P a g e the problem was that McFadden was still there. (RR Vol. 5 p. 15 lines 3-21). He
admits that the original problem went away. Id. Olesky also says that if the arrest
was because of the finger being used then it had nothing to do with anything about
what she might have said to Sanchez. (RR Vol. 5 p. 63 lines 11-16). After the
contact had been initiated, Olesky testified that Sanchez grabbed one of her arms
and he grabbed the other. (RR Vol. 5 page 31 lines 21-25). Olesky also testified
that he grabbed Ms. McFadden by the hair and took her down. (RR Vol. 5 p. 7 line
23 to p. 8 line 4). According to his report, McFadden kicked at the officers while
she was standing without any reference of contact, while it says she kicked officers
after she had been taken down. (RR Vol. 5 p. 8 line 23 to p. 9 line 5). He testified
that he actually received training in an unspecified self-defense class which
supported this hair take down move, (RR Vol. 5 page 10 lines 3-6). Olesky says
after McFadden was taken to the ground he kicked her with his size 13 shoes and
she was also pepper sprayed. (RR Vol. 5 p. 10 lines 7-23). He says it knocked the
wind out of her so she could be handcuffed. Id. He says it took 5 officers to
subdue her and at least one of the others was about his same size as he was. (RR
Vol. 5 p. 50 line 21 to p. 51 line 4). He says once she was down on the ground she
kicked him and caused a laceration on his leg. (RR Vol. 5 page 35 lines 4-8).
McFadden testified that the shoes she was wearing would slide right off if she
wasn’t walking in them as they were heels with no back. (RR Vol. 4 p. 28 line 14
14 | P a g e to p. 30 line 2) See Volume 7, Exhibit D-6). He admits that the alleged
instructions to McFadden while she was down may be conflicting. (RR Vol. 5 p.
63 lines 17-23).
Olesky said in his testimony that he did lay across McFadden once while she
was on the ground, putting his body weight on her. (RR Vol. 5 page 55 lines 5-
12). He testified this was after she was pepper sprayed. (RR Vol. 5 page 51 lines
13-14). He acknowledges in his testimony that most people are in pain when they
are pepper sprayed. (RR Vol. 5 page 53 lines 1-5). Olesky testified that Ms.
McFadden was placed in a prone position after she was pepper sprayed. (RR Vol.
5 p. 45 lines 17-19). He testified that at some point he is scratched by her when
she grabs his helmet while her other hand is restrained and with one hand takes the
helmet off and scratches him. (RR Vol. 5 p. 53 line 22 to p. 54 line 19). Later he
says he is not sure if the other hand was indeed restrained and that she did this with
one hand. Id. Olesky testimony appears to acknowledge that it is possible that the
use of pepper spray on someone may cause flailing. (RR Vol. 5 p. 79 lines 5-18).
He does clearly acknowledge that it may cause death, however. (RR Vol. 5 p. 80
lines 10-25). Olesky also admits that once people are pepper sprayed they will
bring their hands to their eyes or will want to do so if their hands are being held.
(RR Vol. 5 p. 81 lines 1-5). He says that they did not have water with them at the
scene to wash McFadden’s eyes out but they could have gone to a nearby
15 | P a g e establishment and gotten some. (RR Vol. 5 p. 81 line 15 to p. 82 line 14). Olesky
says the Department policy and training say it should be washed out as opposed to
being rubbed out. (RR Vol. 5 p. 83 lines 8-14). McFadden testified that as she
was being held with her hands behind her back and sitting she was drug around
while blinded. (RR Vol. 4p. 23 line to to p. 25 line 10). McFadden’s ankles and
wrists were touching. Id. She said that while this was occurring, someone put
their hands up in her shorts. Id. McFadden said like a pretzel. (RR Vol. 4 p. 25
lines 13-19).
Olesky testified there were many people there but he took down no names of
witnesses. (RR Vol. 5 page 12 lines 1-10). He did acknowledge that people were
hollering at them to leave. Id. Oleskey said there was a camera but did not take
any pictures at the scene such as of Ms. McFadden on the ground, her being stood
up to walk to the van or of the crowd or of other matters that are in dispute. (RR
Vol. 5 page 56 lines 9-23). Olesky testified that he did not see everything and it
could possibly have been a benefit to have an independent witness. (RR Vol. 5 p.
84 lines 5-19).
General. The District Attorney and the Detective on the case were provided
copies of Olesky's reports in order to bring charges against Ms. McFadden. (RR
Vol. 5 page 16 lines 2-13). The probable cause affidavit specifically references the
reports from Sanchez and Olesky as providing a basis for it and it says that Olesky
16 | P a g e was the victim of the assault. (RR Vol. 7, Plaintiff’s Exhibit 1). In the request for
admissions, Sanchez admitted he met with the District Attorney prior to the grand
jury presentation and that his original report was never changed and was used
throughout the process. (RR Vol. 7). Olesky testified that the indictment in the
criminal case was about assaulting him. (RR Vol. 5 page 57 lines 8-11, 21-23).
Subsequently, he indicates that the charges brought by the District Attorney were
based on his report, injuries and actions with Ms. McFadden. (RR Vol. 5 p. 57
lines 16-20). Further, he admits that he had the power to have the charges
dropped. (RR Vol. 5 p. 57 line 21 to p. 58 line 40) McFadden said it was a very
painful experience to have to prepare for and then observe the criminal court
proceedings. (RR Vol. 4 p. 55 line 4 to p. 58 line 9). She had to go to multiple
pre-trial appearances, watch the officers perform demonstrations in court that were
false and hear the accusations about her during this process. Id. She felt like
Sanchez showed a clear hatred of her and lack of respect for women during this
process. Id.
17 | P a g e SUMMARY OF THE ARGUMENT
THE TRIAL COURT ERRED EGREGIOUSLY IN SUBMISSION OF THE JURY CHARGE, INTRODUCING AN ADDITIONAL ELEMENT TO PLAINTIFF’S CASE, ONE WHICH, AS A REBUTTED PRESUMPTION, SHOULD HAVE NEVER COME ANYWHERE NEAR THE JURY CHARGE. WHEN COMBINED WITH OTHER COMMENTS UPON THE WEIGHT OF THE EVIDENCE WITHIN THE JUROR CHARGE, THE COURT MADE IT IMPOSSIBLE FOR PLAINTIFF TO PREVAIL, WHEREAS INDICATIONS ARE THAT USING THE PATTERN JURY CHARGE WOULD HAVE RESULTED IN A DIFFERENT RESULT – AT LEAST A HUNG JURY. THE COURT ACTED WITHOUT REFERENCE TO ANY GUIDING LEGAL PRINCIPLES OR AUTHORITY. IN ADDITION, THE COURT ABUSED ITS DISCRETION BY RULING AS INADMISSIBLE, CERTAIN VITAL, RELEVANT AND ADMISSIBLE EVIDENCE THAT WOULD HAVE HAD A MATERIAL POSITIVE EFFECT ON PLAINTIFF’S CASE, AND WHICH SHE WAS ENTITLED TO BRING FORTH BEFORE THE JURY. THIS CASE MUST BE REVERSED AND REMANDED SO THAT PLAINTIFF MAY HAVE A FAIR DAY IN COURT ACCORDING TO DUE COURSE OF LAW.
18 | P a g e POINT OF ERROR NUMBER ONE
THE TRIAL COURT COMMITTED ERROR, ABUSED ITS DISCRETION BY ACTING WITHOUT REFERENCE TO ANY GUIDING RULES OR PRINCIPLES, AND THE ERROR RESULTED IN HARM TO PLAINTIFF BY DENIAL OF DUE PROCESS AND DUE COURSE OF LAW BECAUSE THE COURT EFFECTIVELYCOMMENTED UPON THE EVIDENCE BY INSERTING AS THE FIRST JURY QUESTION AN ISSUE THAT HAS NO PLACE IN A CHARGE ON MALICIOUS PROSECUTION. AT THE VERY LEAST, THE COURT REVERSED THE PROPER ORDER OF THE JURY CHARGE ON MALICIOUS PROSECUTION, THEREBY DENYING APPELLANT DUE PROCESS AND DUE COURSE OF LAW.
A. THE PARTIES’ CORRECTION OF THE REPORTER’S RECORD AND PRESERVATION OF ERROR
As a preliminary matter, Appellees stipulate that Appellant preserved
error with respect to the insertion of the good-faith question to the extent that she
objected, in a timely and plain manner, to the Court’s decision to make good faith
the first jury question, on the grounds that under the Pattern Jury Charge and the
case law, the first jury issue must be about the tort of malicious prosecution, and
she obtained an adverse ruling from the Court on her objection on the record. See
Exhibit 8, Supplemental 1 Clerk’s Record, which is the Stipulation of the Parties to
Correction of Inaccuracies in Reporter’s Record. Tex. R. App. P. 34.6(e)(1).
With respect to an objection to a jury charge, error is preserved at an
informal jury conference, when the objection is timely and plainly made and a
19 | P a g e ruling obtained. Green Tree Financial Corp. v. Garcia, 988 S.W. 2d 776, 780-82
(Tex. App. – San Antonio 1999), no pet. “Given the liberal precedent on
preservation that has been established by the Texas Supreme Court, we reject
[Appellee’s] formalistic distinction between an ‘informal’ charge conference and a
‘formal’ charge conference.” Green Tree, 988 S.W. 2d at 782.
B. WHAT A CORRECT JURY CHARGE LOOKS LIKE
As reflected in the Texas pattern jury charge, the elements of malicious
prosecution are: (1) A criminal prosecution was commenced against the plaintiff;
(2) The defendant initiated or procured the prosecution; (3) The prosecution was
terminated in the plaintiff’s favor; (4) the plaintiff was innocent of the charge; (5)
the defendant did not have probable cause to initiate or procure the prosecution; (6)
The defendant acted with malice; (7) The plaintiff suffered damages as a result of
the prosecution. Kroger Tex. L.P. v. Suberu, 215 S.W. 3d 788, 792 (Tex. 2006).
There is no “good faith” element, or “absence of good faith” element. The
Court added a seventh element, and put this seventh element as the first jury
question, blocking the jury from doing its duty of deciding the question of
malicious prosecution.
The Texas Pattern Jury Charge on malicious prosecution reads as follows:
“Did Don Davis maliciously prosecute Paul Payne? 20 | P a g e “‘Malicious prosecution’ occurs when one person initiates or procures, with malice, and without probable cause at the time the prosecution is commenced, the prosecution of an innocent person.
“‘Malice’ means ill will, bad or evil motive, or such gross indifference to the rights of others as to amount to a willful or wanton act.
“‘Probable cause’ means the existence of such facts and circumstances as would excite belief in a person of reasonable mind, acting on the facts or circumstances within his knowledge at the time the prosecution was commenced, that the other person was guilty of a criminal offense. The probable cause determination asks whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be before the criminal proceedings were instituted.
“Answer ‘Yes’ or ‘No.’”
Texas Pattern Jury Charges 2014, PJC 6.4
Plaintiff submitted proposed jury instructions based upon the PJC and
adding definitions of “initiates” and “procurement.” These are the
fundamental questions that must be answered. As to probable cause, if the case
has made it way to the jury, then the jury must be instructed that probable cause
means “whether a reasonable person would believe that a crime had been
committed given the facts as the complainant honestly and reasonably believed
them to be before the criminal proceedings were instituted.” Kroger, 215 S.W. 3d
21 | P a g e at 792-93, citing, inter alia, Richey v. Brookshire Grocery Co., 952 S.W. 2d 515,
517 (Tex. 1996). “Complainant” in this context means of course the party or
parties who ended up as the defendant(s) in the malicious prosecution lawsuit.
C. THE TRIAL COURT COMMITTED ERROR
Appellees requested and the court granted a jury charge that should not have been
given at all, to say nothing of placing it as the first jury question. The court stood
the law on its head.
As above-shown, Jury question number one should deal with the ultimate question
of malicious prosecution, with definitions for “malice” and “probable cause,” in
essentially the same language as The Pattern Jury Charge. In the instant case,
however, the Court asked the jury to first answer this question:
“Do you find from a preponderance of the evidence that any of the Defendants listed below acted in good faith while in the performance of a discretionary duty within the scope of his authority when he allegedly initiated or procured Plaintiff Latisha McFadden’s criminal prosecution for assault on a peace officer?
“A person commits the offense of ‘assault on a peace officer’ if he or she intentionally, knowingly, or recklessly causes bodily injury to a person that he or she knows is a public servant while the public servant is lawfully discharging an official duty or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant.
22 | P a g e “A ‘discretionary act’ is an act which involves personal deliberation, decision or judgment.
“An officer or public official acts in ‘good faith’ if a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred.
“To ‘initiate’ a criminal prosecution means to make a charge before a public official or body in such form as to require the official or body to determine whether process shall or shall not be issued against the accused.
“A person ‘procures’ a criminal prosecution if his actions were enough to cause the prosecution, and but for his actions the prosecution would not have occurred. A person does not procure a criminal prosecution when the decision whether prosecute is left to the discretion of another, including a law enforcement official or the grand jury, unless the person fails to fully and fairly disclose all material information known or knowingly provides false information.
“An official acts within the ‘scope of his authority’ if he is discharging the duties generally assigned to him.
“Answer ‘Yes’ or ‘No’ for each Defendant:
a. Greg Oleskey
Answer ______
b. Rogelio Sanchez
23 | P a g e Answer ______” CR 236.
The jury question should never have started with a question on “good
faith.” Rather, it should have started with a question on “malicious
prosecution.” Malicious prosecution did not get mentioned until Question
Number Two. CR 237.
The notion of good faith is a rebuttable presumption. The plaintiff must put
forward sufficient evidence to rebut the presumption, and if she does so, the
presumption dissolves completely and defendant must convince a jury that he had
probable cause under the probable cause definition above-cited, from the Pattern
Jury Charge and Kroger. If Defendants lose the presumption of good faith, as they
did in this case, they do not get a jury charge on it.
The controlling case on this is Richey v. Brookshire Grocery Co., 952 S.W.
2d 515 (Tex. 1996). The facts of this case were that Richey pocketed a package of
cigarettes while shopping, bought his groceries paying $51.75, saw a charity bin on
the way out of the grocery store, went back and bought $8.89 worth of baby food
and put in the bin and walked out of the store. When the night manager stopped
him outside and mentioned the cigarettes in Richey’s pocket, Richey offered to pay
for them. The night manager instead reported him to police for shoplifting. A
24 | P a g e criminal jury took a few minutes to find Richey not guilty. The civil jury in the
malicious prosecution case found in his favor. The Appellate Court overruled in a
split decision, and its ruling was upheld 5-4 by the Supreme Court. The majority
ruled that the grocery store met the probable cause standard of “whether complaint
reasonably believed that the elements of a crime had been committed based on the
information available to the complainant before criminal proceedings
began.” Richey, 952 S.W. 2d at 519-20. The minority opinion argued that Richey
put on sufficient evidence to support the verdict. Id. at 520-21 (Cornyn, J.
dissenting). This is by way of background. For purposes of the case at bar, the
entire court agreed regarding the role of the good-faith presumption.
“There is an initial presumption in malicious prosecution actions that the defendant acted reasonably and in good faith and had probable cause to initiate the proceedings. That presumption disappears once a plaintiff produces evidence that the motives, grounds, beliefs, and other evidence upon which the defendant acted did not constitute probable cause. The burden then shifts to the defendant to offer proof of probable cause.” Id. at 517-18.
The presumption is a presumption of good faith and probable cause. When
evidence sufficient to put into doubt whether defendants had probable cause is
brought forward, the presumption falls away. That is to say, the presumption
of good faith and probable cause fall away. Once they do, the defendant must
offer proof of probable cause. The question of a police officer’s “good faith” is not
25 | P a g e on the table any longer. The language of the law at this point becomes the much
more neutral “probable cause.” The juror as fact finder does is not forced to say a
police officer did not act in “good faith.” The jury is merely asked if the officer
has probable cause. For the juror, this is a momentous difference. It makes all the
difference in the world, and certainly all the difference to turn a case. Although
the definitions are similar, one phrase is psychologically loaded. By definition it
forces a jury to decide that a police officer acted in bad faith before even
considering the elements of malicious prosecution, rather than simply asking the
jury to decide whether the officer made a bad mistake. This is an immense
hurdle for the Plaintiff to overcome – a hurdle that is completely unnecessary, and
completely illegal. “An instruction that misstates the law cannot be expected to
produce a correct verdict.” Texas A & M University v. Chambers, 31 S.W. 3d 780,
785 (Tex. App. – Austin 2000), rev. denied.
As soon as positive evidence to the contrary is produced, a presumption is
rebutted. Chambers, 31 S.W. 3d at 784.
Appellant put on sufficient evidence to rebut the presumption and make
probable cause a fact issue upon which Appellees had the burden of proof, as
per Richey. The Trial Court denied Appellees’ Motion for a Directed Verdict,
thereby ruling as a matter of law that the presumption was rebutted. Exhibit 1,
Final Judgment, CR 260-61. 26 | P a g e Had it not denied the motion for directed verdict, the Trial Court would have
had to grant Appellees’ Motion for Directed Verdict, which Motion the Trial Court
denied. Had it not, Appellees would have been entitled to a judgment as a matter of
law. But the Trial Court did not grant dismissal as a matter of law, but instead sent
the case to the jury to decide as fact finder. Exhibit 1. This, by itself, shows that
the presumption was overcome and “good faith” should never have been
mentioned in any part of the jury questions or the Court’s Charge as a whole.
The syllogism is a very simple one:
1. Without sufficient rebutting evidence to create a jury issue regarding probable cause, Appellees would have been entitled to judgment as a matter of law – the granting of their Motion for a Directed Verdict. 2. Having denied Appellees a judgment as a matter of law, the Trial Court’s duty was to present a correct series of jury questions covering the elements of malicious prosecution, as per the Pattern Jury Charges or something similar. 3. “Good faith” or lack thereof is not one of the elements (jury questions) of malicious prosecution. 4. Therefore, it was error to give a jury instruction and question on “good faith.”
The Trial Court was, of course, correct in denying the motion for a directed
verdict as a matter of law. The testimony of bystander Leslie Alexander set forth
sufficient evidence to overcome the presumption of good faith. RR Vol. 2, at
13:12 – 17:20. Appellant’s testimony raised evidence to rebut the
presumption. RR Vol. 4 at 12:19 – 18:4. Additionally, the testimony 27 | P a g e of Appellees was evidence sufficient to overcome the presumption of good
faith. The Statement of Facts just recited is full of admissions from
the Appellee Officers that amounted to competent evidence rebutting the
presumption of good faith.
What the Court did instead was to rule that the presumption had been
overcome. But in contradiction to her own ruling, and in clear legal error,
presented this non-element to the jury as the first question to be answered. This
amounted to a misstatement of the law and therefore a denial of due process and
due course of law. It also amounted to a comment on the evidence, as will be
explained below.
D. STANDARD OF REVIEW – THE COURT ACTED WITHOUT REFERENCE TO ANY GUIDING RULES OR PRINCIPLES. Courts enjoy considerable discretion in framing a jury charge. Texas A & M
University v. Chambers, 31 S.W. 3d 780, 783 (Tex. App. – Austin 2000). The
reviewing court may only determine whether the trial court acted without reference
to any guiding rules or principles. Chambers, 31 S.W. 3d at 783, citing Downer v.
AquamarineOperators, Inc., 701 S.W. 2d 238, 241-242 (Tex. 1985).
Still, an instruction must be correct. Id. “A presumption ‘may not properly
be the subject of an instruction to the jury.’” Id. at 783-84, citing, United Founders
Life Ins. Co.v. Carey, 347 S.W. 2d 295, 307 (Tex. Civ. App. – Austin
28 | P a g e 1961), rev’d on other grounds, 36 S.W. 2d 236 (Tex. 1962); Armstrong v. West
Tex. Rig Co., 339 S.W. 69, 74 (Tex. Civ. App. – El Paso 1960,
writ ref’d n.r.e); Glover v. Henry, 749 S.W. 2d 502, 504 (Tex. App. – Eastland
1988, no writ).
“A presumption is an artificial thing, a mere house of cards, which one
moment stands with sufficient force to determine an issue, but at the next, by
reason of the slightest rebutting evidence, topples utterly out of consideration of
the trier of facts.” Id., citing Combined Am. Ins. Co. v. Blanton, 353 S.W. 2d 847,
849 (Tex. 1962). See also Lee v. Kline, No. 14-98-00268-CV, 200 WL 19227, *3
(Tex. App. – Houston [14th Dist.] 2000), rev. denied.
“An artificial thing.”
“Topples utterly out of consideration of the trier of facts.”
Not in the instant case. Only slightly less egregiously than in Chambers,
the Trial Court in the instant case made the good-faith presumption a very real
thing and improperly forced the jury to make it its first – and ultimately only –
consideration. In Chambers, the trial court improperly inserted the actual
presumption into the jury charge. Here, what the Court did was to make a
policeman’s “good faith” a roadblock through which the jury could not pass to get
29 | P a g e to the question it was supposed to consider. We can see how this occurred in three
ways:
1. By insisting on putting a policemen’s “good faith” at issue as opposed to merely
their reasonableness in determining probable cause, the Court forced the jury to not
simply judge that the police officers were plain wrong, but that they had acted in
bad faith. This is something which the neither the PJC nor Kroger or any authority
requires or allows.
2. We know the jury was unable to find its way past the roadblock because it told
the Court that it could not figure out if the good-faith definition referred to “the
officer’s conduct during the arrest or after the arrest when completing the incident
reports.” CR p. 259. The jurors’ confusion is very understandable. This extra-
legal question on good faith, coming as it did out of thin air, without reference to
any guiding rules or principles, was also unintelligible to the average layperson.
Look please at Question No. 1 in its entirety (CR, p. 236, Exhibit 2). The
first paragraph of the question talks about good faith when the officer initiated or
procured the criminal prosecution. But when read in combination with the
“procures” definition, any layman would be confused because of the language that
reads, “if his actions were enough to cause the prosecution, and but for his actions
the prosecution would not have occurred.” To a laywoman that could seem to refer
30 | P a g e to the officer’s actions on the street, or making the arrest, but not the decision to
recommend a formal charge against Appellant. But it only gets worse. The fourth
paragraph of Question No. 1 defines “good faith” as being if a reasonably prudent
officer “could have believed that his conduct was justified based on the
information he possessed when the conduct occurred.” “When the conduct
occurred” could mean either the incident on the street, or the arrest, or the decision
to recommend that formal charges be brought. The Court’s reaction to this query
was that the jury had to proceed on the jury charge with no additional
explanation. CR p 259.
3. The overall actions of the Court put the case on par with Chambers.
In Chambers, this Court found that the improper charge probably caused the
rendition of an improper verdict. This was because the charge was an improper
comment on the weight of the evidence. Chambers at 785. It is acknowledged
that the Court in the instant case did not recite the presumption in the jury
charge. However, for some of the same reasons as in Chambers, and additional
reasons, the Court’s extra-legal Question No. 1 also likely led to an improper
judgment.
“Reversal is required if an improper comment on the weight of the evidence
was calculated to cause the rendition of an improper judgment . . . An instruction
that misstates the law cannot be expected to produce a correct verdict.” Id. 31 | P a g e Looked at as a whole, Question No. 1 was clearly an improper comment on the
weight of the evidence.
Firstly, we have the mere fact that good faith was brought up at all. This has
no legal precedent in this State. Appellant has checked and double-checked on
both Westlaw and Lexis and finds no reported case where “good faith” is any part
of the Jury Charge on malicious prosecution. None. The inclusion of this good-
faith charge, which never had any place in a jury charge on malicious prosecution,
was a comment on the weight of the evidence.
Secondly, the Court inserted a definition of “assault on a peace officer” as
the second paragraph of Question No. 1. Such definition was in no way necessary
even under the terms of the Court’s eccentric Question No. 1. Its inclusion
amounted to a comment upon the weight of the evidence. It is a particularly heavy
comment when the Court ignores the qualifying language of Tex. Pen. C §9.31,
which allows citizens self-defense against an officer in instances of alleged Class C
misdemeanors and police excessive force. This, even though Officer Sanchez
agreed that the law states that a citizen can fight back if a police officer uses
excessive force. RR Vol 3, p 35: 6-9
Thirdly, when Appellant, having been overruled on her objection to the
order in which the Jury Questions would proceed, attempted then to inform the
32 | P a g e jury of what a “good faith police officer” should know regarding the alleged
underlying offense that started the entire police fracas, she was refused by the
Court. The Statement of Facts makes clear that the initial reason for the police
stop of Latisha McFadden was a Class C Disorderly Conduct. But the S.O.F. also
shows strong evidence that such Class C Disorderly Conduct was never committed
by Appellant.
And the law shows that no reasonably prudent officer could have been
justified in taking the violent action they did against Ms. McFadden because her
conduct never even approached conduct sufficiently disorderly to be considered
disorderly conduct.
Appellant duly filed a Supplemental Jury-Charge Requests to put this good-
faith subterfuge in context. The law requires that when a requested jury instruction
is denied, Appellant should have filed a written proposed charge, which was done
in this case. CR 229-31.
Appellant asked the Court to include in its Question No. 1 each or any of
three explanations of the parameters of disorderly conduct – explanations clearly
admonitory toward law enforcement. These were:
“For words or gestures to amount to disorderly conduct, or a breach of the peace, they must, by their very utterance tend to incite an immediate breach of the peace.” Jimmerson v. State, 561 S.W. 3d 5, 7 (Tex. Crim. App. 1979)
33 | P a g e (Onion, J. for a unanimous Court), citing Chaplinsky v. New Hampshire, 35 U.S. 568 (1943) “Whether particular words constitute fighting words is a question of fact. This requires careful consideration of the actual circumstances surrounding the expression, asking whether the expression is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Goggin v. State, 123 S.W. 3d 82, 90 (Tex. App. – Austin 2003, rev. ref’d), citing Texas v. Johnson, 491 U.S. 397 (1989) “Language that is merely harsh and insulting does not generally rise to the level of fighting words; derisive or annoying words only rise to such level when they plainly tend to excite the addressee to a breach of the peace.” Goggin v. State, 123 S.W. 3d 83, 90 (Tex. App. – Austin 2003, rev. ref’d).
After an exchange of arguments, trial Court denied this motion to include
Texas law pertaining to disorderly conduct. This law likely could have changed
some jurors’ minds by showing them that the police cannot just call a profanity or
profane gesture disorderly conduct unless it likely to incite imminent lawlessness
and immediate breach of the peace. RR Vol. 6 at 7:5 to 10:7.
Fourthly, the Third Court of Appeals is more inclined to remand a case for
improper comment on the weight of the evidence if it is a close case. The
Statement of Facts to this Brief show this was a close case, vigorously contested,
with many pieces of evidence that might have cause a jury to find malicious
prosecution had it not been stopped by the good-faith roadblock.
The jury barely brought in a decision. Two jurors dissented. CR, p. 243.
34 | P a g e The undersigned believes Appellees will agree the jury deliberated close to
five hours over the single question of good faith, the question designed to through
it off course.
“A superfluous instruction is more likely to improperly influence a jury in a
close case.” Chambers at 785, citing Reinhart v. Young, 906 S.W. 2d 471, 473
(Tex. 1995).
CONCLUSION and PRAYER
Appellant pray that this Honorable Court reverse and remand the instant case
with instructions to the Trial Court to follow PJC 6.4, except in case of
exceptional, unlikely circumstances and in which case it make findings of fact and
law supporting deviation from PJC 6.4.
35 | P a g e POINT OF ERROR NUMBER TWO. THE TRIAL COURT COMMITTEE ERROR AND ABUSE OF DISCRETION BY NOT ALLOWING EVIDENCE OF A SIMILAR OR MORE SERIOUS ALLEGED CRIME COMMITTED BY DEFENDANT ROGELIO SANCHEZ BEING TREATED WITH A SOLICITOUS DRIVE TO OFFICER SANCHEZ’S HOME AND A LIGHT INTERNAL DISCIPLINARY ACTION. A. STANDARD OF REVIEW
In a civil proceeding, the standard of review on evidentiary rulings is abuse
of discretion. Bay Area Healthcare Grp., Ltd., v. McShane, 239 S.W. 3d 231,
234 (Tex. 2007). Reversal is warranted only if the error is harmful.” Nissan
Motor Co. v. Armstrong, 145 S.W. 3d 131 144.
The instance involving internal discipline of Rogelio Sanchez in 1999 for
criminal trespass is not a 404(a) question. It is offered for a wholly other
purpose. The purposes enumerated in 404(b) are illustrative, not exclusive.
The 404(b) catalogue, by the same token, is illustrative, not exclusive. Whether
or not it neatly fits one of these categories, an extraneous transaction will be
admissible so long as it logically tends to make the existence of some fact of
consequence more or less probable. Banda v. State, 768 S.W. 2d 294, 296
(Tex. Crim. App. 1989) (emph. added).
In this case the matter is offered to show that the APD was capable and
frequently did approach similar or far worse situations with a much lower level
of force, amounting to zero. Because the two situations – Officer Sanchez’s
36 | P a g e alleged misdemeanors and Ms. McFadden’s – this is a factor to be considered in
favor of admitting the Sanchez information. Secondly, the two instances have
fundamental features in common. Sanchez was alleged by the owner of the
Tavern pub in Austin to have been involved in a “disturbance” which is not
explained in the report. Meanwhile, in Sanchez’s post-hoc justification for his
treatment of plaintiff he also says that Ms. McFadden was on the verge of
creating a disturbance. RR Vol. 3 at 5:22-24.
This evidentiary issue is actually a classic Rule 402 case.
Relevant evidence” means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.
Plaintiff’s Exhibit 36, the discipline of Rogelio Sanchez, shows that where a
crime clearly was committed (criminal trespass) and another possibly
committed (disorderly conduct – “involved in a disturbance”), the APD reacted
by taking Officer Sanchez home, not jail, and no charges were brought.
Rule 401 defines relevance and 402 says relevant evidence generally is
admissible. There is a two-part test:
37 | P a g e 1. “Materiality” inquires whether there is an rational relationship or
pertinence of the proffered evidence to any provable or controlling fact
issue in dispute.
2. Then, relevancy inquires whether the proffered evidence has probative
value tending to establish the presence or absence, truth or falsity, of a
fact.
O’Connor’s Texas Rules of Evidence, p. 178
What counts is the probative value tending to establish the presence or
absence, truth or falsity of a fact, which fact has a rational relationship to the
controlling fact in dispute. The controlling fact in dispute is whether there was a
malicious prosecution against Latisha McFadden or conspiracy to maliciously
prosecute her. Plaintiff’s theory is that Defendants motive to maliciously
prosecute plaintiff was to cover up excessive use of force, irrespective of any
alleged disorderly conduct. One piece of probative evidence that this was
excessive force was the fact of the gentle, solicitous way in which Rogelio Sanchez
was treated when he committed a “disturbance” or disorderly conduct, and
allegedly committed the Class B offense of criminal trespass.
38 | P a g e The degree of similarity between the two events or transactions does not
need to be high. Sears, Roebuck & Co. v. Menegay, 9-7 S.W. 2d 72, 74 (Tex. App.
– fort Worth 1995, no writ).
As mentioned the 404(b) list is not exhaustive, by its own terms. What is
required is that the proponent of the evidence “must be able to explain to the trial
court the logical and legal rationales that support its admission on a basis other
than bad character” or propensity purpose. De La Paz v. State, 279 S.W. 3d 336,
343 (Tex. Crim. App. 2009)
The test is as follows:
1. The inherent probative value of the evidence (very high in the instant case to
show disturbances can be diffused without any resort to arrest, much less violent,
unlawful arrest);
2. The similarity of the instances (both were lowest-level misdemeanors, occurring
close in time, both involved what were described as “disturbances” and in both
cases the actor reportedly used strong, foul language.)
3. Strength of the evidence of the extraneous (Sanchez) offense (strong).
4. Nature of the extraneous conduct and its potential for impressing the jury in
irrational ways (low). Limiting instruction and responsible jurors understand the
real issues in the case.
39 | P a g e 5. Trial time necessary to develop the evidence (minimal).
6. Availability of other evidence that tends to accomplish the same purpose (there
is no other such evidence in possession of plaintiff).
7. Strength of that other evidence that tends to accomplish the same purpose (such
other evidence does not exist, at least not in Plaintiff’s possession).
8. Is the purpose served by admission of the extraneous conduct related to a
disputed issue (YES). The disputed issue is should the police have conducted the
entire procedure, if any was needed, by a much lower level of force, and was the
cover-up of excessive force a motivating factor in the malicious prosecution.
Santellan v. State, 939 S.W. 2d 155, 169 (Tex. Crim. App. 1997).
The “Santellan score” is extremely high. It was even higher because the
judge ended up inventing a good-faith question. The Court will remember the
question: “Do you find from a preponderance of the evidence that any of the
Defendants listed below acted in good faith while in the performance of a
discretionary duty within the scope of his authority when he allegedly initiated or
procured Plaintiff Latisha McFadden’s criminal prosecution for assault on a peace
officer.”
40 | P a g e Even with this prejudicial comment upon the weight of the evidence, had the
jury heard the evidence on how the Rogelio Sanchez alleged criminal trespass and
disorderly conduct were handled, the jury would have had a far different standard
of good faith. And had the expected charge based on the PJC been given, the
actions toward Sanchez would have informed the jury with regards to what a
“reasonably prudent officer” should do in such low-level situations. The evidence
was of extreme importance and violated no rules.
The Trial Court sustained the City’s objection to the admission of the
evidence. RR. Vol 1, Excerpt of Proceedings, 10:7 – 14
The Trial Court did not follow guiding principles of law and did not do a
proper balancing test and this was highly prejudicial to Plaintiff’s case for it would
have shown that none of what happened to her ever needed to happen, the force
was brutally excessive for the level of alleged misdemeanor and there existed a
double standard, all motives for malicious prosecution. The Court should reverse
and remand for a new trial because of this denial of vital evidence.
41 | P a g e PRAYER
For the reasons stated in the Conclusion and Prayer to Points of Error Nos. 1
and 2, Appellant Prays that this case be reversed and remanded back to the trial
court for a new trial.
APPENDIX
1. FINAL JUDGMENT
2. CHARGE TO THE JURY
3. TEXAS PATTERN JURY CHARGES
4. TEXAS RULES OF EVIDENCE, RULE 401
5. TEXAS RULES OF EVIDENCE, RULE 402
6. TEXAS RULES OF EVIDENCE, RULE 403
7. TEXAS RULES OF EVIDENCE, RULE 404
8. STIPULATION OF THE PARTIES TO CORRECTION OF INACCURACIES IN THE REPORTER’S RECORD
42 | P a g e Appendix Exhibit 1 Filed in The District Court of Travis County, Texas
JAN 08 20~ CAUSE NO. D-1-GN-04-001222 At -·f¥ f1r.t Velva L. Price, Distric Clerk
LATISHA MCFADDEN, § IN THB DISTRICT COURT OF Plaintiff, § § vs. § TRAVIS COUNTY, TEXAS § GREG OLESKY, ROGELIO SANCHEZ, § and MICHAEL POLLARD, § Defendants. § 353RD JUDICIAL DISTRICT
FINAL ruoGMENI
On the 16TH day of November, 2015, the above entitled and numbered cause came on for
trial. Plaintiff appeared through her attorneys of record and Defendants appeared through their
attorneys of record. The parties announced ready for trial, and a jury of twelve persons and one
alternate was empaneled to try the cause.
At the conclusion of Plaintiff's evidence, Defendants moved for a directed verdict The
Court considered the motion and the evidence and found that Defendants Oleskey and Sanchez
were not entitled to a directed verdict However, the Court found that Defendant Pollard was
entitled to a directed verdict. As such, the Court DENIED Defendants Oleskey and Sanchez'
motion for directed verdict and GRANTED Defendant Pollard,s motion for directed verdict As
such, Plaintiff shall take nothing from Defendant Pollard and all claims against Defendant
Pollard are hereby DIS:MISSED WITH PREJUDICE. At the conclusion of Defendants'
evidence, Defendants re-urged their motion for directed verdict as to Defendants Oleskey and
Sanchez, which the Court DENIED. Defendants' motion for directed verdict and the Court's
order on Defendants' motion for directed verdict are incorporated herein for all pmposes by
reference.
1111111 111111111111111111111111111111111111111111111111 004379672 The parties closed the submission of evidence on November 19, 2015, and the Court
submitted the case to the jury. In response to the Court's charge, the jury returned a verdict that
the court received, filed and entered of record. The questions submitted to the jury and the jury's
verdict are attached as Exhibit A and incorporated by reference. The charge of the Court and the
verdict of the jury are incorporated herein for all purposes by reference.
After the jury returned its verdict, Defendants moved for judgment on the verdict. The
Court, having considered the motion of Defendants, and because the verdict of the jury was for
Defendants and against Plaintiff, finds that judgment should be rendered on the verdict in favor
of Defendants and against Plaintiff.
Accordingly, IT IS, THEREFORE, ORDERED that Plaintiff TAKE NOTHING by her
suit, and that each party shall bear their own costs of court.
This judgment finally disposes of all parties and all claims and is appealable.
-:fttt\~ ~IV S SIGNED this_ _day of~lS.
261 Exhibit 2 ,! lJi; H DC BK15342 PG1708 H H ·~ fl tl lJORIG~L :&~ ll f.i CAUSE NO. D-1-GN-04-001222 ~t!:_ Y2 tltl ..::-~ ... c: fa 0 LATI~ffA:_: MCFADDEN, Plaintiff IN THE DISTRICT COUBlli ~· -~-· ·· 8 fl : Q) (.) s:: fit > :::r- "t:0.. t' t-·- 0 .se ~~ESKEY, z OF TRAVIS COUNTY, TE~-g~ :REJI AND :::o
ROG~q U-
SANCHEZ, Defendants H .; H l u ~, l ' CHARGE TO THE JURY 1'1 i
MEM+R~ OF THE JURY: fh. ! This case is submitted to you by asking questions about the facts, which you must u ; decideffroll}l the evidence admitted in this trial.
~~- d •. In arriving at your answers, consider only the evidence, including exhibits,
admi tt#t id. this trial. tl ,l 1 !P· In considering this evidence, you are bound to follow the law set forth in this
charge,jas yen as all instructions concerning jurors' conduct that you have been given.
~~- :' You are to make up your own minds about the facts. You are the sole judges of
the crjibi~ty f~· . Do not let bias, prejudice, or sympathy play any part in your deliberations. Jt6~ : Do not become a secret witness by telling other jurors about other incidents, 't _. experi~~~ces_._.,_.· or lawsuits. Do not tell other jurors about any special knowledge, information, or expert~ e tljat you may have. You must confine your deliberations to the evidence admitted in the t . I II tria . ~! n ,j !17. This charge includes all legal instructions and definitions that are necessary to q assist ~--()u_;-in reaching your verdict, so do not seek out any information in law books or H :· dictio1F~· I• il}! SCANNED 232 f! J.i DC BK15342 PG1709 I I! . ~t. ; . All of the questions and answers are important. No one should say that any questi or ,answer is not important. Do not decide who you think should win and then try to answer the questions accord~gly. Simply answer the questions, and do not concern yourselves with the effect of your answe~.!r 1 0. Do not decide the questions by any method of chance. I l 1. ' Do not answer the questions by adding together each juror's figure and dividing by the um~er of jurors to get an average. 2. j Do not do any trading on your answers. That is, one juror must not agree to l answ, on~ question a certain way if other jurors will agree to answer another question another way. fl : ~13. i After you retire to the jury room, you will select a presiding juror. You will then i delibe te upon your answers. 14. : It is the duty of that presiding juror: a. to preside during the deliberations and to provide order and compliance with the charge; b. to write, sign, and deliver to the court clerk any communication to me; c. to conduct the vote and to participate in that vote; and, d. to write your answers in the spaces provided. I Do you understand the duties of the presiding juror? If you do not, please tell me now. j 15. The answers to the questions must be based on the decision of at least 10 of the 12 jurors.jiJ Tb'e Same I 0 jurors must agree on every answer to all the questions, including subparts, unless ,ftherwise instructed. This means you may not have one group of 10 jurors agree on one answe~.~and.:a different group of I 0 jurors agree on another answer. Do not agree to be bound by a vote oflanYfhing less. than 10 jurors, even if it would be a majority. in 6. .. li If the verdict is reached by unanimous agreement, the presiding juror will sign the verdic,~n tpe certificate page for the entire jury. flrj 2 f.1 ! 233 II ,• I t ~ ,. DC BK15342 PG1710 I 1!7. If 10 jurors agree on every answer, those 10 jurors sign the verdict. If 11 jurors 1 agree i•·f _ .ev:· ·.·.·_•,·_-.;.:;e·:· ·.ry ,answe·,_·r, those 11 jurors sign the verdict. If all 12 of you agree on every answer, you ar1 un~imous and only the presiding juror signs the verdict. ;, 8. { All jurors should deliberate on every question. You may end up with all 12 of you agreeit'_--~. on•. •_-.· .· '. some answers, while only 10 or 11 of you agree on other answers. But when you sign th ve~4ict, only those 10 or 11 who agree on every answer will sign the verdict. .r: ~ 19. ( During your service as jurors, if you observe a violation of my instructions outside the ju i ro~m, by either a juror or any other person, you must report that to me. I. 0. ·:r.~ J; In your deliberations, any juror who observes a violation of my instructions shall point ~· t ru;e violation and caution the offending juror not to violate the instructions again. I• ·: ~~ 1. You must not discuss the case with anyone, including other members of the jury, unless ~I o,f the jurors are present and assembled in the jury room. If anyone other than a juror tries t1rlk;to you about the case before you reach a verdict, tell me immediately. ~~2. ... When all required questions have been answered, the presiding juror has written your ~wers on the charge, and the verdict has been signed, you will summon the court operat~ris ~fficer anli be returned to court with your verdict. !ren words are used in this charge in a sense which varies from the meaning commonly unders~~o;. you are given a proper legal definition, which you are bound to accept in place of any other iemung. ~~ns;wer "Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer must be bas~ ort a preponderance of the evidence unless otherwise instructed. If you do not find that a prepo~~er~ce of the evidence supports a "Yes" answer, then answer "No". ~~~:term "P~PONDERANCE OF THE EVIDENCE" means the greater weight and degreejlof Credible testimony or evidence introduced before you and admitted in this case. A i! ' prepol'\~er~ce of the evidence is not measured by the number of witnesses or by the number of lt' I: f : ; 3 tl . 234 L r i, DC BK15342 PG1711 l :, t .: doc~ nts!admitted in evidence. For a fact to be proved by a preponderance of the evidence, you must d t~at the fact is more likely true than not. .'A ~ct may be established by "DIRECT EVIDENCE" or by "CIRCUMSTANTIAL EVID NlE" or both. A fact is established by direct evidence when proved by documentary evide~~e ot by witnesses who saw the act done or heard the words spoken. A fact is established :l by ci1.~.um~tantial evidence when it may be fairly and reasonably inferred from other facts prov11 fl II f N I C9vLU. L. NARANJO, ~/ ~ 0 4 235 i'.l DC BK15342 PG1712 l! 'I QUESTION NO. 1 DJ yoJ: find acted fro~ a preponderance of the evidence that any of the Defendants listed below gQod faith :while in the perfonnance of a discretionary duty within the scope of his autho Y.,hen he allegedly initiated or procured Plaintiff Latisha McFadden's criminal pros!' lion for assault on a peace officer? A · ers.pn commits the offense of "assault on a peace officer" if he or she intentionally, know*·gly~. or reckl~ssly causes bodily injury to a person that he or she knows is a public servant while ~ ~ublic se~ant is lawfully discharging an offi~ial duty or in ret~iation or on account of an ex .ctse of offictal power or performance of an offictal duty as a public servant. it A 11discretionary act" is an act which involves personal deliberation, decision or judgment. ~ o~cer or public official acts in "good faith" if a reasonably prudent officer, under the same · si~. ilar circumstances, could have believed that his conduct was justified based on the info . tion he possessed when the conduct occurred. '·~ . Tolr·i~~ate:• a cri.m_inal prosec~tion means to make a charge before a public official or body tn sue~ foryn as to requtre the offictal or body to determine whether process shall or shall not be issued~gatrst the accused. A ~ersdn "procures" a criminal prosecution if his actions were enough to cause the prose~tiop, and but Jor his actions the prosecution would not have occurred. A person does not procutjf a mi!lal prosecution when the decision whether to prosecute is left to the discretion of anothi~' in~luding a law enforcement official or the grand jury, unless the person fails to fully and faltly disclose all material infonnation known or knowingly provides false infonnation. l· ~o·~. r. c.ial acts within the "scope of his authority" if he is discharging the duties generally assi!;"t tO him. iwef "Yes" or "No" for each Defendant: a. t g Oleskey 1wei: Yf:S b. ~og~lio Sanchez 1wer:11 ___,Y.__E_S_ _ H ., tl II 1! tII 5 IId 236 ll !l,, ..: DC BK15342 PG1713 rl ! t If }"ou answered "No" to Question No. I as to either Defendant, answer the following questi, s as to that Defendant only. Do not answer the following questions for any Defendant for w m your answer was "Yes" in Question No. 1. f f i QUESTION NO. 2 Dil any of the Defendants listed below maliciously prosecute PlaintiffLatisha McFadden? \ " licjous prosecution" occurs when one person initiates or procures, with malice, and probable cause at the time the prosecution is commenced, the prosecution of an innocent perso l . T~'initlate, a criminal prosecution means to make a charge before a public official or body in sue •. ·fo~.; as to require the official or body to determine whether process shall or shall not be issued( gainst the accused. h ~I A [ erson "procures" a criminal prosecution if his actions were enough to cause the prose · tiot), and but for his actions the prosecution would not have occurred. A person does not procu · a qnminal prosecution when the decision whether to prosecute is left to the discretion of anoth , i.qpluding a. law enforcement official or the grand jury, unless the person fails to fully and fa ly disclose all material information known or knowingly provides false information. ' ·.~ I " He#" 1neans ill will, bad or evil motive, or such gross indifference to the rights of others as to ouht to a willful and wanton act. I ; "~rbable cause" means the existence of such facts and circumstances as would excite belief in a p · soq. of a reasonable mind, acting on the facts or circumstances within his knowledge at the ti ,:e th¢ prosecution was commenced, that the other person was guilty of a criminal offense. The p. ba6Ie cause determination asks whether a reasonable person would believe that a crime had b n cbmmittedgiven the facts as the complainant honestly and r~asonably believed them to be be re the criminal proceedings were initiated. I! l'!I . A ~wer . "Yes" or "No" for each Defendant: ; re~fOleskey b. og¢1io Sanchez 1 !;' l{ wer: - - - - - - t~ 6 237 II ~ DC BK15342 PG1714 IIil II~, tl [If ~.p.u. an.swered "Yes" t~ Question No.2 for eit~er of the Defendants named below then answey Qu~stton No. 3. Otherwtse, do not answer Question No. 3. i! ' IIf QUESTION NO.3 W e ~y of the. Defendants listed below part of a conspiracy to maliciously prosecute the Plainti that damaged Plaintiff Latisha McFadden? To be part of a: conspiracy, a Defendant and another person or persons must have had knowl ge! of, agreed to, and intended a common objective or course of action that resulted in the d ag~s to Plaintiff Latisha McFadden. One or more persons involved in the conspiracy · ve performed some act or acts to further the conspiracy. wef "Yes" or "No" for each defendant: a. , reg: Oleskey il Alltwer: _ _ _ __ lbgeJio Sanchez ; we~=------ l ii il 1! II f i 7 ' q ~! r1 23~ p'I II ,,1 i DC BK15342 PG1715 d n u H !i If you s~:ered "Yes'' to Question No. 2 or Question No. 3 for more than one of those named I.F..I below,tpteri answer Question No.4. Otherwise, do not answer Question No.4. I ·~ [I - !l : ti tl QUESTION NO. 4 ,I . Assi*·t.perc·;•entages o• f responsibility only to those you found caused or contributed to cause, or consp1 · ~o cause the damages. The percentages you find must total 100 percent. The perce ge~ must be, expressed in whole numbers. The percentage of responsibility attributable to any, ne is not necessarily measured by the number of acts or omissions found. " For ea~.·h. q~fendant : you found caused or. c~?tribut~d to cause the damages to Plaintiff Latisha McFa~~en,) find the percentage of responsibility attnbutable to each: f! : I. lj:rreg Oleskey _ _% 2. fFogelio Sanchez % ~~otAL: ~I 100% n ti ~. f ~' 1: II~I r! !I II., ft fl f: H ~f Ii ij ~ 8 ~ 239 q u DC BK15342 PG1716 I tf. !It! fl ' Ifyou~~s~ered Qu~tion No.2 or Question No.3 "Yes" then answer Question No.5. Othe~;e qo not answer Question No. 5. n !Ii 1 QUESTI 0 N NO.5 l! ~ - Wh.at sum qf money, if paid now in cash, would fairly and reasonably compensate Plaint La·····.,···t.•. isha McFadden for her damages, if any, that resulted from the malicious prosecution and/o .rn~piracy to commit malicious prosecution, if any? l 1 ·c···o·n··:··.s. ider the .· elements of damages listed below and none other. Consider each element separa ly.;tDo not award any sum of money on any element if you have otherwise, under some other em~nt, awarded a sum of money for the same loss. That is, do not compensate twice for the s · e lqss, if any. Do not include interest on any amount of damages you find. JYo~ are instructed that any monetary recovery for the elements listed below is not subject t~es . to fedtl illcomPel na. ' ~~ 1 . . d. $ 1ys1ca pain susta1ne In t11e past: - - - - - - t1 Mental anguish sustained in the past: $ _ _ _ _ __ Hb. ~~ t'rc. Mental anguish that, in reasonable probability, Latisha McFadden will sustain in td. [ Monies paid to a bail bond company: $ _ _ _ _ _ __ lje. Attorney fees incurred in defending the underlying criminal case:$_ _ _ __ (, ~I t!p tl !I fl ir ll u ll t• !I tl il tl !I !I lh! 9 {l 240 tl tl DC BK15342 PG1717 Answer Question No. 6 regarding each Defendant listed only if you unanimously answe d ;tYes" for that Defendant in Question No. 2 or Question No. 3. Otherwise, do not answe. Qu¢stion No.6 for that Defendant. iTo answer '~Yes" to Question No. 6, your answer must be unanimous. You may ans\vcr "No''~~ any part of Question No. 6 only upon a vote of ten (I 0) or more jurors. Otht:rwisc. yuu must 1ot answer that part of Question No.6. 1.1 !1 QUESTION NO.6 !Ino ~ou find by clear and convincing evidence that the harm to Plaintiff Latisha McFa1~en.fesulted from malice on behalf of any of the Defendants listed below? ~"Cl~ and convincing evidence" means the measure or degree of proof that produces a firm bTijefor conviction of the truth of the allegations sought to be established. li"Malice" means: f 1. A specific intent by any of the persons listed below to cause substantial injury ~~ to Plaintiff Latisha McFadden~ or d :i !i[j 2. An act or omission by any of the persons listed helow, \f I r a. Which when viewed objectively from the standpoint of the person listed below at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential b. Of which the person listed below has actual, subjective awareness of ll fl the risk involved, but nevertheless proceeds with conscious f. indifference to the rights, safety, or welfare of others. f . A4 wet "Yes" or "No" for each Defendant listed below: i a. Wreg Oleskey ,,i! A1rwer: ~ 1 ~og~lio Sanchez . b. A1t wer:' _ _ _ __ t [I n 241 DC BK15342 PG1718 I't Answer Question No. 7 regarding each Defendant named below only if you unanimously answe· d "Yes" to Question No.6 regarding that Defendant. Otherwise, do not answer Question No. 7 r a; particular Defendant. fl II . QUESTION NO. 7 j\vou are instructed that you must unanitnously agree on the atnount of any award of 1 ' ex em "ary da1nages. Wh~t sum of money, if any, should be assessed against each Defendant named below and award d to. Plaintiff Latisha McFadden as exemplary damages for the conduct found in response to Qu tion No. 6? "E~emplary damages" means any damages awarded as a penalty or by way of punis ent but not for compensatory purposes. Exemplary damages includes punitive damages. f Fac~ors to consider in awarding exemplary damages, if any, are: ! 1 1. The nature of the wrong. I 2. The character of the conduct involved. tl 3. The degree of culpability of the wrongdoer. !!;, t! II 4. The situation and sensibilities of the parties concerned. t 11 5. The extent to which such conduct offends a public sense of justice and l1 propriety. II Answer . in dollars and cents, if any, for each Defendant: a. Greg Oleskey !Answer: $ _ _ _ __ (I tl! b. R.ogelio Sanchez I~ . [!Answer: $_ _ _ __ L r.I li tl n H ll it l 11 !I 242 .. DC BK15342 PG1719 ;t I_ I l.,, ;·. j.i CAUSE NO. D-1-GN-04-001222 d LATI$H4 MCFADDEN, Plaintiff IN THE DISTRICT COURT v. OF TRAVIS COUNTY, TEXAS GREcl oJtESKEYAND ROGELIO SANf" $. Defendants l . 353RD JUDICIAL DISTRICT rl . !I CERTIFICATE Court "1I We,·:·. e jury have answered the above and foregoing questions as herein indicated, and herewith return same into •·ili··· ur i(erdict. (To ~e signed by the presiding juror, ifut~allintous:) Presiding Juror I,I : Printed name of Presiding Juror Jurors' 1Ignatpres: .I ..: Jurors' Printed Names: J v " b AlA Ll £ r>- L£1 fJ &:L kG Stt\4t1.?Yt f fJ CltllRlfl-= 07 CA TH I 13 OO~TZ ------·•-•••••-·--·----oo•·----0000 •o·••••o 0 DATE: lljz,f/5 12 243 r 11\'#U Ill Ill~ '-''~I.H\.rL \.IVUil of Travis County, Texas ~;; r~· . it .:f ; NoJ 2o2o15 1--f f! -£ CAUSE NO. D-1-GN-04-001222 At Jk"u M. it 1' Velva L. PrjceJ Distric Clerk LAi$~ J,cFAPDEN v. ff !. : § IN THE DISTRICT COURT § § 353R 0 • JUDlClAL DISTRI'CT § § TRAVIS COUNTY, TEXAS r,; ' q. GR~.G LES_· KEY_._, ROGELIO SANCHEZ, ANitMICHAEL ~· •. :t POLLARD lt;_:, ~' ~:: !• 1 ~1 WRITTEN INSTRUCTIONS L . i '.·.:f; ; ; ME~BF11fS OF THE JURY: t~ '·. ; ' Jl· . ~Y th~ oath that you just took~you became an official of this court and an active participant in the }•l)li~·administration of justice. It is essential to the administration of fair and impartial justice that ·ou follo\v these instructions: J•; :1J)To!avoid·Iooking like you are friendly with one side of the case, do not mingle with or talk to U,•, :.l~~er$, the !Witnesses, the parties or any other person who might be connected with or inte ~steqJn tl1is cas~. You cannothaveeven casual conversation abolitthings completely unrelated to this :~uit\'y)th imy of those people. Do not accept from or give to any of thetn any favors, however slig~f. • t : tf; 2:· Do not discuss anything about this case or mention it to anyone, even your spouse or a frie'11,•_ .~~.eit.,_·_her ir•1 per.\on or by any other means including by phone, text message, email message, chat roo116 blqg, or social networking websites such as Facebook~ Twitter, or Myspace. Do not let anyone disc~s t1~e, case with you or in your presence. If anyone tries to talk about the case with you or in your hear{pg,_rp~ort it to ~ne.as so_on as possible. We do not want you to be influenced by something other than.th~ :~yadence admttted m court. fl.: ~M Dg not even discuss this case among yourselves until after you have heard all of the evid«npe,~Jhe court's charge, and the attorneys' arguments, and I have sent you to the jury room to begift yotjr deliberations. Jl , ~~:~ You are the judges of the facts of this case. It is your duty to listen to and consider care(plly)he evidence admitted under my rulings, and to answer some specitic questions about the fact~ttJiatJl. wiJ_I subrpit to you in writing in the court's charge. i ~ 5}.) In 1arriviug at your verdict, you can consider only the evidence admitted during the trial. l Do ,pi:~~~e a:ny in~estigati?n on your o~n aboutthe fac~ ofthi.s case. Do not try to get infonnation aboqt. th~:;cas~, lawyers, wttnesses, or ·tssues from outstde thts courtroom. Do not go to places menflope~ in the c~e to i~spect the places. Do not i~spect .items mentione.d ~n this case un~ess they are ~re~e(J~ed .as evtdence m court. Do not look anythmg up m a law book, dacttOnary, or pubhc record to trt1to l~am more about the case. Do not look anything up on the Internet to try to learn more about the q~e. i· ~ , 6,. Do not tell other jurors your own experiences or other people's experiences. For example, you . ~y.·· :·n_:_._·_~-~v. e.-~. peci~l knowledge of something in the case, such as business~ technic.al, or professional info ~t~qn. You muy even have expert knowledge or opinions, or you may know what happened in this ,~e..~:)- another similar case. Do not tell the other jurors about it. Telling other jurors about it is wro.)k1bepause it means thejury will be considering things that were not presented in court. And do not l~t 'anYone else do any of these things for you. tt ··~ This rule is very impot1ant because we want a trial based only on evidence presented in operJ,couh. Your conclusions about this case must be based only on what you see and hear in this cou~':o·;.·o·m··._:.,_ .• . beq.ause t.he ~aw does n.ot pe. rmit you _to base ):o.ur conclusions on inl~rmatio.n that. ha.s no. t part r:1 bee 'tPresente~ to you m open court AII the mformatton must be presented m open court so the d thqir lawyers can test it and object to it. lnfonnation from other sour~IC JtMED 244 !l . ·~ ·.: ~{ : f! t! ~ill not go through this important process in the courtroom. In addition, information from othe4i~?~~~es could ~e completely unreliable. As a result, if you investigate this case on your own, you ~~11,COJI)Prom!se the fairness to all parties in this case and jeopardize the results of this trial. (1 7J The law:is determined by the legislature and courts of this state. You are obligated to folloJM.~. my.· instructions about the law, regardless of whether you think the Jaw is right or wrong. l! · 8~ During the presentation of evidence, the attorneys may make legal objections. If an obje lion~to a question is sustained, disregard the question, and do not speculate as to why it was aske~ or \vhat the answer would have been. If an objection to a witness's answer is sustained, disrtiar. ~.J.~at answer. It is not. in ~vidence, and ~ho.uld not be considered. Do not speculate about or cons(per{or any reason the obJections or my rulings themselves . . ·. ~·'·i f; · 9) Turn otT all cell phones and other electronic devices. While you arc in the courtroom and whil~youare deliberating, you may not communicate with anyone through an~ dcctronil: device about the q~se on your cell phone. through e-mail. Blackberry. iPhone. text messaging. or Oil Twitter . thro!( I~ _a_~.ny blog or Web site, through any Internet chat room, or by way of any other social 1 net\ · rkirig Web sites, including Facebook. MySpace, Linked In, and You Tube. Do not post .·., 1 ·• 't info ati(m about the case on the Internet before these court proceedings end and you are released fron{Uury, duty. Do not record or photograph any part of these court proceedings, because it is prohl~ite,q_ by law. [l: ~ I:{). During the trial, if taking notes will help focus your attention on the evidence, you may take llo::.te~. using t!1e :mate. rial~ the. court has pro. vid7d. Do not use ?ny personal electronic.devices to take ~ote~; Iftakmg notes wtll dastract your attention from the evtdence, you should not take notes. You{!not~s are for your own personal use. They are not evidence. Do not show or read your notes to anyo»e, il)cluding other jurors. When you are released from jury duty, the Court Operations Officer will promptly destroy your notes so that nobody can read what you wrote. 11· I ~tress again that it is imperative that you follow these instructions, a':i well as any others that I may~a~ergive you. Keep your copy of these instructions) and refer to them should any question arise abo~~ t;he; rules that' govern your conduct during this trial. A violation of any instruction must be reported to me as soon as possible. . r. n V\ft o . , ~~~~ i li ' I \ !t . I ·.·· H fi ~! g1 ' t' f' I!ii p f! ~. 245 Exhibit 3 TEXAS ----- PATTERN JURY CHARGES , ~:neral Negligence • Intentional Personal Torts Workers' Compensation Prepared by the COMMITTEE on PATTERN JURY CHARGES of the STATE BAR OF TEXAS Austin 2014 QUESTION _ _ .'\ pez-! Did Don Davis maliciously prosecute Paul Payne? eno:lg!- - :10:: .. ('_ "Ma licio us prosecution" occurs w hen one person initiates o r procures, \\.ii: prosec.· ~ mali ce, and w ithout probable cause at the time the prosecution is commenced ere no:: ;: : the prosecution of an innocent person. JU~. t..:: -· "Malice" means ill will, bad or evi l motive, o r such gross indifference to the inform:!: · rights of others as to amount to a w illful or wanton act. .-\ crimir.J. :::ng ,._ Grc: ·._ I "Probable cause" means the ex istence of such facts and circumstances as would excite belief in a person of reasonable mind, acting on the facts or cir- _ eck. 881 S ., . -~rlned. as it ~ cumstances within his know ledge at the time the prosecution was commenced. -dainst plaimr:-!' that the other person was guilty of a crimina l offense. The probable cause determination asks whether a reasonable person would believe that a crime had Exemplar~ d been committed given the facts as the complainant honestly and reasonabl) -:::ssion of an :: believed them to be before the criminal proceedings were instituted. .~mber I. 19<1 ~ J3llas 1996. r..:; A nswer "Yes" or "No." ·~parate issue :· :roof requirerr.e· Answer: - - - - -- - - :0 chapter 41 c ; :or actions fi led .:Jmages mus: :;. COMMENT -:1ents to chap:e: _,ere is othen\ ,:• When to use. PJC 6.4 is a broad-form question. See Tex. R. C iv. P. 277. It should be appropriate in most cases involvi ng c laims for ma licious prosecution arising out of a crim inal prosecution. See PJC 4 .1 comments, " Broad form to be used when feasible·· and "Whe n broad-form questions not feasible." Source of question and instructions. The seven e lements o r malic ious prosecu- tion a re ( I) commencement of a crim inal prosecution aga inst the plai ntiff, (2) in itiated or procured by the defendant, (3) terminated in fa,·or of the plaintiff, (4) who was innocent, (5) w ithout probable cause. (6) with malice. (7) resulting in damage to the plaintiff. Richey v. Brookshire Grocery Co .. 952 S. \V.2d 515, 5 17 (Tex. 1997). Note that the e lement relating to the prosecution ·s being tenninated in favor of the pla intiff is not included in the above instructions. In the Comm ittee 's view, this element should be determined by the trial court as a maner of law before the submission of the case to the jury. Cf Davis v. City of San Amonio. -s2 S. \\ .. 2d 518, 523 (Tex. 1988). Under the supreme court's formulation in Richey. the plaintiff's innocence is a factual element that he bears the burden of establishing. 86 YJL ().4 Dispute about procurement or initiation. In some sihtations there is a dispute about the procurement or initiation of the criminal prosecution. [n the case of a dispute about "procurement." the following instruction may be used: A person procures a criminal prosecution if his actions were enough to cause the prosecution, and but for his actions the prosecu- ti on would not have occurred. A person does not procure a criminal vith prosecution when the decision \Yhether to prosecute is left to the dis- ::ed, cretion of another, includi ng a Jaw enforcement official or the grand jury, unl ess the person fa ils to fully and fairly disc lose all material the information known to him or knowing ly provides fa lse information. A criminal prosecution may be procured by more than one person. s as King I< Graham, 126 S.W.3d 75. 77 (Tex . 2003): Brmming-Ferris industries, Inc. v. Lieck, 88 I S.W.2d 288, 293 (Tex. 1994). ··Initiation would not ordinari ly need to be Clr- defined, as it would be demons1rated by evidence that defendant filed formal charges ced, against plaintiff . .. :· Lieck, 88 1 S.W.2d at 293. lUSe had Exemplary damages. A finding of ma licious prosecution may support the sub- :ibly mission of an exempla1y damages question for causes of action accruing before Sep- tember I , 1995. Ellis Count)" Slate Bank r. Kee1·er, 936 S. W.2d 683 (Tex. App.- Dallas 1996, no wril). For causes of action accruing on or after September l, 1995, a separate issue for exempl ary damages must be submitted because of the burden of proof requirements for exemplary damages that were created by the 1995 amendment to chapter 41 of the Texas Civil Practi ce and Remedies Code. See PJC 4.28. Further, for actions fi led on or after September I , 2003, the separate submission for exemplary damages must also account fo r the unanimity requirement created by the 2003 amend- ments to chapter 41. See PJC 4.2C. The practitioner shou ld be aware, however, that there is otherwise little guidance in the case law for submissions in this area. ould ut of ible" ;ecu- iated was :l the ~o te in tiff \QUid .se to ~r the ment Exhibit 4 Rule 401. Test for Relevant Evidence, TX R EVID Rule 401 Vernon's Texas Rules Annotated Texas Rules of Evidence (Refs & Annos) Article IV. Relevance and Its Limits (Refs & Annos) TX Rules of Evidence, Rule 401 Rule 401. Test for Relevant Evidence Currentness Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Credits Eff. March 1, 1998. Amended by orders of Supreme Court March 10,2015 and Court ofCriminal Appeals March 12,2015, eff. April1, 2015. Notes of Decisions (215) Rules of Evid., Rule 401, TX R EVID Rule 401 Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure urc current with amendments received through April1, 2016. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial Administration are current with amendments received through April l, 20 16. Other state court rules and selected county rules are current with rules verified through April 1, 2016. End nf llncumc-nt t· 20 I(J 'fhomson Rt!uters. No daim to originalll.S. Government Work~. V-/ESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government vVorks. Exhibit 5 Rule 402. General Admissibility of Relevant Evidence, TX R EVID Rule 402 Vernon's Texas Rules Annotated Texas Rules of Evidence (Refs & Annas) Article IV. Relevance and Its Limits (Refs & Annas) TX Rules of Evidence, Rule 402 Rule 402. General Admissibility of Relevant Evidence Relevant evidence is admissible unless any of the following provides otherwise: • the United States or Texas Constitution; • a statute; • these rules; or • other rules prescribed under statutory authority. Irrelevant evidence is not admissible. Credits Eff. March 1, 1998. Amended by orders of Supreme Court March 10, 2015 and Court of Criminal Appeals March 12,2015, eff. April1, 2015. Notes of Decisions (724) Rules of Evid., Rule 402, TX R EVID Rule 402 Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received through April!, 2016. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial Administration are current with amendments received through April 1, 2016. Other state court rules and selected county rules are current with rules verified through April 1, 2016. ····------------------··-..-...-------···-..--------·--·..·-·····-·--·--·---·--------··---·-------··------------·······-----------------------·-----·..·· End ul' Ducumcnt ;{.:• 2016 Thom:.on Reutl'rs. No daim to original U.S. Governm<.•nt Works. WEST LAW (..Q' 20·16 Th(:;:rson H.euters. No clam~ tu on~JH ·::~1 U.S. c.;overncwnt vVorks. Exhibit 6 Rule 403. Excluding Relevant Evidence for Prejudice, ... , TX R EVID Rule 403 Vernon's Texas Rules Annotated Texas Rules of Evidence (Refs & Annos) Article IV. Relevance and Its Limits (Refs & Annos) TX Rules of Evidence, Rule 403 Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Credits Eff. March I, 1998. Amended by orders of Supreme Court March I 0, 2015 and Court of Criminal Appeals March 12,2015, eff. April1, 2015. Notes of Decisions (1679) Rules of Evid., Rule 403, TX R EVID Rule 403 Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received through April I, 2016. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial Administration are current with amendments received through April I. 2016. Other state court ruh:s and selected county rules arc current with rules veri tied through April 1, 2016. - - - - - - - - - - - - - - - ---------------------------- --~--------~--- - ---------- - ----- -------------- ------ End of Document < ~016 Thomson R~:ut..:rs. 1\o ..:htim hl original U.S. G(•\cnun..:nt Work:;. WESTLAW © 2016 Tr1u1nson Reuters. No claim to ori~_1in(1l U.S. Government \tVorks. Exhibit 7 Rule 404. Character Evidence; Crimes or Other Acts, TX R EVID Rule 404 Vernon's Texas Rules Annotated Texas Rules of Evidence (Refs & Annosl Article IV. Relevance and Its Limits (Refs & Annos) TX Rules of Evidence, Rule 404 Rule 404. Character Evidence; Crimes or Other Arts (a) Character Evidence. (I) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (2) Exceptio11s for a11 Accused. (A) In a criminal case, a defendant may offer evidence of the defendant's pertinent trait. and if the evidence is admitted, the prosecutor may offer evidence to rebut it. (B) In a civil case, a party accused of conduct involving moral turpitude may offer evidence of the party's pertinent trait, and if the evidence is admitted, the accusing party may offer evidence to rebut it. (3) Exceptio11s for a Victim. (A) In a criminal case, subject to the limitations in Rule 412, a defendant may offer evidence of a victim's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it. (B) In a homicide case, the prosecutor may offer evidence of the victim's trait of peacefulness to rebut evidence that the victim was the first aggressor. (C) In a civil case, a party accused of assaultive conduct. may offer evidence of the victim's trait of violence to prove self-defense, and if the evidence is admitted, the accusing party may offer evidence of the victim's trait of peacefulness. (4) Exceptio11s for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609. (5) Definition of"Victim." ln this rule, "victim" includes an alleged victim. (b) Crimes, Wrongs, or Other Acts. VVESTLAW ~~; 20 ·t6 Them son Routers. No clam! h:. ori~;imj; U.S. C)overmnet \t VVorks. Rule 404. Character Evidence; Crimes or Other Acts, TX R EVID Rule 404 (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice i11 Crimi11al Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence--other than that arising in the same transaction--in its case-in-chief. Credits Eff. March 1, 1998. Amended by orders of Supreme Court March 10,2015 and Court of Criminal Appeals March 12,2015, eff. April 1, 2015. Notes of Decisions (1914) Rules of Evid., Rule 404, TX R EVID Rule 404 Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received through April 1, 2016. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial Administration are current with amendments received through April 1, 2016. Other state court rules and selected county rules are current with rules verified through April I, 2016. End of Document t • t: ( ~ • l i i. 1 I , l "· f 'fv'ESTLAW @ 2016 Thu:;:son Reut.:.::rs. No dairn to or:qirkd \.! ..~::, Gcvermnc:nt '.:Yorks. ) Exhibit 8 2/4/2016 5:22:14 PM Velva L. Price District Clerk Travis County 0·1-GN-04-001222 Patricia Winkler CAUSE NO. D-1-GN-04-001222 LATISHA MCFADDEN § IN THE DISTRICT COURT Appellant, § § v. § TRAVIS COUNTY, TEXAS § GREG OLESKY, and § ROGELIO SANCHEZ § Appellees § 353RD JUDICIAL DISTRICT STIPULATION OF THE PARTIES TO CORRECTION OF INACCURACIES IN REPORTER'S RECORD TO THE HONORABLE JUDGE OF SAID COURT: Under Rule 34.6 (e)(l) of the Texas Rules of Appellate Procedure, Latisha McFadden, Appellant, and Greg Olesky and Rogelio Sanchez, Appellees, by and through their respective attorneys of record, agree to correct the following inaccuracies in the reporter's record without the court reporter's recertification: On page 5 of the Reporter's Record of the Jury Charge Conference of November 19, 2015, there is a 12-minute gap in the record. The Parties agree that during these 12 minutes, argument continued on the record and the parties debated whether the good-faith defense should be Issue No. 1 in the jury charge or whether malicious prosecution should be Issue No. 1. Counsel for Appellees argued as to why the good-faith defense should be the first issue considered by the jury and malicious prosecution the second, arguing, among other things, that because there is a rebuttable presumption of good faith, that question should be decided first. Counsel for Appellant argued why malicious prosecution should be the first issue and good-faith the second, arguing, among other things, that the pattern jury charge on malicious prosecution dealt exclusively with the tort, which showed that it was the first concern of the law, and that the idea of making good-faith the first question would be putting things backwards. The Parties agree that Counsel for Appellant made objection to the Court's ruling that the good-faith defense would be the frrstjury question, in timely and plain manner, specifically on the grounds that under the pattern jury charges and the law the first issue must be about the tort of malicious prosecution. Counsel obtained a ruling on his objection in that said objection was overruled by the Court on the record. Mr. Gray Laird, counsel for Appellees, is in trial this 4th day of February, 2016, but has this day given expressed permission to Mr. Donald McCarthy, counsel for Appellant, to sign this stipulation on Mr. Laird's behalf. Respectfully submitted, Donald J. McCarthy The Law Office of Donald J. McCarthy S.B.N. 00794256 808 W. 11th Street Austin, Texas 78701 (512) 585-9151 (512) 477.. 1901 {FAX) ATIORNEY FOR APPELLANT rUt·.t:: bJ fev~J.ri dVj Henry Gray Lair CITY OF AUSTIN LAW DEPARTMENT S.B.N. 24087054 P.O. Box 1088 Austin, Texas 78767 (512) 974-1342 (512) 974--2894 (FAX) AITORNEY FOR APPELLEES CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was delivered to counsel for Appellees, Mr. Gray Laird, Assistant City Attorney, Austin, by agreement by electronic mail to gray.laird@austintexas.gov and Ms. Andralee Lloyd to andralee.lloyd@ austintexas.com this 4'h day of February, 2016. p,JUZU~ Donald J.MCCarth)lII f t I h n .,
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Latisha McFadden v. Greg Olesky and Rogelio Sanchez, Counsel Stack Legal Research, https://law.counselstack.com/opinion/latisha-mcfadden-v-greg-olesky-and-rogelio-sanchez-texapp-2016.