Polk County Publishing Company and Valerie Reddell v. Tommy Lamar Coleman

• Court: Court of Appeals of Texas
• Decided: December 30, 2021
• Docket: 09-20-00298-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-20-00298-CV ________________

POLK COUNTY PUBLISHING COMPANY AND VALERIE REDDELL, Appellants

V.

TOMMY LAMAR COLEMAN, Appellee

________________________________________________________________________

On Appeal from the 258th District Court Polk County, Texas Trial Cause No. CIV33910 ________________________________________________________________________

MEMORANDUM OPINION

In this accelerated appeal, Polk County Publishing Company (PCP) and

Valerie Reddell appeal the trial court’s denial of their Motion to Dismiss under the

Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code Ann. §

27.001. On appeal, PCP and Reddell argue that the trial court erred because the

TCPA applies to the legal action filed by Tommy Coleman, and he failed to establish

a prima facie case proving each element of his claim for defamation. We affirm.

1 I. Background

Coleman is employed as an assistant district attorney with the Polk County

District Attorney’s Office. PCP publishes a twice weekly newspaper, The Polk

County Enterprise (Enterprise), in Polk County, and Reddell is an editor and

employee for the newspaper. On June 7, 2020, Coleman made a post on his personal

Facebook page “in support of PolkCountyToday.com[,]” a local competitor of the

Enterprise. 1 On June 18, 2020, the Enterprise printed an article written by Reddell

titled “Battle Lines drawn over prosecutor’s conduct.” A subheading stated the

article was “[p]art of an ongoing series about the need for criminal justice reform.”

The article stated that prior to working for the Polk County District Attorney’s

Office, Coleman was employed by the Williamson County District Attorney’s

Office and “assisted with the prosecution of Michael Morton during his tenure[.]”2

The article went on to describe the prosecution of Michael Morton and stated that

during Morton’s post-conviction legal attempts to prove his innocence, Coleman

was “singled out in media reports for mocking requests to test that bandana for

DNA.” The article went on to state that Coleman was one of five prosecutors

“informed that their services would no longer be needed[]” because according to the

newly elected District Attorney, they were “‘indoctrinated in the John Bradley

1 Coleman’s Facebook page was titled “Tommy Coleman for Polk County.” 2 See INNOCENCE PROJECT, Michael Morton Time Served: 24 Years, https://innocenceproject.org/cases/michael-morton/ (last visited Dec. 13, 2021). 2 school of thought,’ which reportedly included a policy that defense attorneys weren’t

allowed to see the evidence against their clients until shortly before trial.”

After the article was published, Coleman hired an attorney, sent a letter to the

PCP stating the article contained “false and defamatory statements[,]” and

demanded that the PCPrun a correction on the front page of the newspaper. Coleman

took particular offense to the article’s use of the word “prosecution” stating that

when Morton was initially prosecuted in 1987, he was not a licensed attorney and

did not work for the Williamson County District Attorney’s Office.3 The Enterprise

subsequently ran a correction stating that the article had “mischaracterized”

Coleman’s involvement with the Michael Morton case, and that he was not involved

with the initial trial and prosecution in 1987, and “[t]he proceedings that took place

between 2005 and 2011, should not have been referred to as ‘prosecution.’”

In August 2020, Coleman filed legal action against PCP and Reddell, alleging

that the June 2020 article was libelous and sought damages. In response, PCP and

Reddell answered and asserted an affirmative defense pursuant to the TCPA and

moved to dismiss the claims under that statute.4 In their motion to dismiss, both PCP

and Reddell argued that the TCPA applies to Coleman’s claims and that under the

3 Coleman provided a copy of his Texas Bar Page with the State Bar of Texas that showed he was first licensed as an attorney in 2002. 4 The answer filed by both PCP and Reddell included a request for attorney’s fees against Coleman. 3 TCPA, Coleman cannot meet his burden to demonstrate each element of his

defamation claim. In response, Coleman did not dispute that the TCPA applies to his

claim but argued that he offered “ample evidence to support each element of his libel

claim.”

On November 19, 2020, the trial court held a hearing regarding PCP and

Reddell’s motions to dismiss under the TCPA. After hearing arguments, the trial

court denied both motions to dismiss. Both PCP and Reddell timely filed a notice of

appeal.

II. Standard of Review

The TCPA “protects citizens who petition or speak on matters of public

concern from retaliatory lawsuits that seek to intimidate or silence them.” In re

Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). The TCPA is meant

“to encourage and safeguard the constitutional rights of persons to petition, speak

freely, associate freely, and otherwise participate in government to the maximum

extent permitted by law and, at the same time, protect the rights of a person to file

meritorious lawsuits for demonstrable injury.” See Tex. Civ. Prac. & Rem. Code

Ann. § 27.002. Courts construe the TCPA liberally to ensure its stated purpose and

intent are fully effectuated. Id. § 27.011(b); ExxonMobil Pipeline Co. v. Coleman,

512 S.W.3d 895, 898 (Tex. 2017).

4 A TCPA motion to dismiss involves a multi-step process. See Youngkin v.

Hines, 546 S.W.3d 675, 679–80 (Tex. 2018); Coleman, 512 S.W.3d at 898–99;

Lipsky, 460 S.W.3d at 586–87; see also Tex. Civ. Prac. & Rem. Code Ann. §

27.005(b)–(d). “[A] court shall dismiss a legal action against the moving party if the

moving party demonstrates that the legal action is based on or is in response to: (1)

the party’s exercise of: (A) the right of free speech; (B) the right to petition; or (C)

the right of association; or (2) the act of a party described by Section 27.010(b).”

Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). If the movant establishes that the

plaintiff’s lawsuit implicates one of these rights, the second step shifts the burden to

the plaintiff to “‘establish[ ] by clear and specific evidence a prima facie case for

each essential element of the claim in question.’” Lipsky, 460 S.W.3d at 587 (quoting

Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c)). Finally, if the non-movant

establishes their prima facie case, the burden shifts back to the movant to establish

“an affirmative defense or other grounds on which the moving party is entitled to

judgment as a matter of law.” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d); see

also Youngkin, 546 S.W.3d at 679-80 (discussing burden-shifting in the context of

previous version of statute); Coleman, 512 S.W.3d at 898-99 (same).

On appeal, Coleman does not dispute that the TCPA applies to his claims.

Therefore, we focus on whether Coleman satisfied his burden to demonstrate prima

facie evidence of each element of his claim of defamation against PCP and Reddell.

5 III. Analysis

A. Affidavit

Reddell and PCP complain of the trial court’s refusal to strike Coleman’s

evidence he submitted to meet his burden of proof in opposition to the motions to

dismiss. To meet his burden of proof in his response, Coleman filed a sworn

affidavit, together with exhibits which he attached to his original petition filed in the

lawsuit and a copy of his State Bar of Texas page. Reddell and PCP objected to

Coleman’s affidavit and sought to have it struck, alleging it contained hearsay and

self-serving statements insufficient to meet his burden under the statute. They argue

on appeal that without the improperly admitted affidavit, Coleman failed to provide

“clear and specific” evidence of each element of his claim for defamation.

An affidavit must do more than make conclusory, self-serving statements that

lack factual detail. See Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex.

App.—Texarkana 2000, no pet.). Conclusory affidavits are not sufficient to

overcome or to establish a prima facie case in light of a TCPA motion to dismiss.

Camp v. Patterson, No. 03-16-00733-CV, 2017 WL 3378904, at *7-8 (Tex. App.—

Austin Aug. 3, 2017, no pet.) (mem. op.). “Bare, baseless opinions do not create fact

questions, and neither are they a sufficient substitute for the clear and specific

evidence required to establish a prima facie case under the TCPA.” Lipsky, 460

S.W.3d at 592. An affidavit must provide “details to support [the plaintiff’s] factual

6 inference or show the factual basis for [his] claims.” Camp, 2017 WL 3378904, at

*8.

The affidavit filed by Coleman along with the attachments showed that the

article published by PCP and Reddell about Coleman was false because in the article

it asserted that Coleman was involved with the prosecution of Michael Morton.

Coleman’s affidavit stated that he was born in 1970 and was not licensed until 2002.

Coleman’s affidavit includes facts to support his allegation that he was defamed by

the media defendants’ use of the word “prosecution” in the article. Coleman states

that he was seventeen years old when Michael Morton was initially prosecuted and

that it would be another fifteen years before he obtained his law license. He states

that he was employed at the Williamson County District Attorney’s office from 2008

to 2012 and during that time, he never appeared of counsel for the State on the

Michael Morton case, he never signed pleadings or any other legal documents

regarding the case, never argued in court, never discussed strategy, or made any

public comments regarding the case. This statement is not conclusory but, is factual

and of such a type that can be easily controverted by his opponent, if false. See Camp,

2017 WL 3378904, at **7-8. Notably the Texas Supreme Court has rejected the idea

that the TCPA “establish[es] a heightened evidentiary standard or prohibits

circumstantial evidence.” Warner Bros. Entm’t, Inc. v. Jones, 538 S.W.3d 781, 800

7 (Tex. App.—Austin 2017) (citing In re Lipsky, 460 S.W.3d at 591), aff’d 611 S.W.3d

1 (Tex. 2020). In Lipsky, the Texas Supreme Court stated that

a plaintiff must provide enough detail to show the factual basis for its claim. In a defamation case that implicates the TCPA, pleadings and evidence that establish[ ] the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff should be sufficient to resist a TCPA motion to dismiss.

460 S.W.3d at 591. Appellants’ allegations that the affidavit is incomplete or self-

serving are incorrect considering the other evidence presented by Coleman in his

petition, including a copy of his bar page, a correction from the Enterprise correcting

the use of the term “prosecution” in the previous article, and a letter to the editor

from the Polk County District Attorney disputing the published article’s accuracy.

As such, in reviewing the affidavit in conjunction with his pleading, the statement is

not conclusory and was properly considered by the trial court under the TCPA. See

id. We overrule this issue.

B. Defamation

1. Public Figure

Reddell argues that Coleman has to demonstrate actual malice in his prima

facie case for defamation because he is at the very least a “limited purpose public

figure.’” “A limited purpose public figure suing a media defendant for defamation

must prove that the defendant published the statement with actual malice.” Post-

Newsweek Stations, Houston, Inc. v. Dugi, No. 13-10-00366-CV, 2011 WL

8 2463057, at *4 (Tex. App.—Corpus Christi-Edinburg June 16, 2011, pet. dism’d)

(citing Klentzman v. Brady, 312 S.W.3d 886, 905–06 (Tex. App.—Houston [1st

Dist.] 2009, no pet.)). A private citizen need only show the media defendant acted

negligently. Id.

In WFAA-TV, Inc. v. McLemore, the Texas Supreme Court adopted a three-

part test to determine if an individual is a limited public figure.

(1) the controversy at issue must be public both in the sense that people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution; (2) the plaintiff must have more than a trivial or tangential role in the controversy; and (3) the alleged defamation must be germane to the plaintiff's participation in the controversy.

978 S.W.2d 568, 571 (Tex. 1998) (citing Trotter v. Jack Anderson Enters., Inc., 818

F.2d 431, 433 (5th Cir.1987); Waldbaum v. Fairchild Publ’ns, Inc. 627 F.2d 1287,

1296–98 (D.C.Cir.1980)). In McLemore, the Supreme Court began its analysis by

reviewing the controversy in question. See id. at 572. The court stated that to

determine if this is a public controversy as outlined above, we must

determine whether a controversy indeed existed and, if so, to define its contours, the judge must examine whether persons actually were discussing some specific question. A general concern or interest will not suffice. The court can see if the press was covering the debate, reporting what people were saying and uncovering facts and theories to help the public formulate some judgment.

Id. (quoting Waldbaum, 627 F.2d at 1297). An examination into Coleman’s past

work history and questions regarding his employment with the Polk County District

9 Attorney’s Office was not something being publicly discussed, nor was the article

assisting in uncovering facts to assist the public to form a judgment regarding a

matter of public concern. See id. Reddell’s argument that because the article reported

Coleman’s background and why he was hired at the Polk County District Attorney’s

office are “matters of public concern” is unpersuasive. “The mere fact that some

issue may become the subject of public discussion is not evidence that a specific

question is already being discussed by the public.” Klentzman, 312 S.W.3d at 906.

Framing their article as “[p]art of an ongoing series about the need for justice

reform[]” does not mean that Coleman is “newsworthy” to thrust him in the role of

a limited public figure. Id. (“A libel defendant must show more than mere

newsworthiness to justify application of the demanding burden of [actual malice].”)

(quoting Wolston v. Reader’s Digest Ass’n, Inc. 443 U.S. 157, 167–68 (1979)). The

article makes no ties to any pending or recent prosecution or other public matter that

involved Coleman or even the Polk County District Attorney’s office. As such,

Coleman’s status as a limited public figure fails the first step of the McLemore test.

See McLemore, 978 S.W.3d at 571. We need not analyze the other elements of the

three-part test. See Klentzman, 312 S.W.3d at 906–08 (holding that the appellee was

a not a limited public figure because the publication did not discuss a public

controversy). Therefore, Reddell has not shown that Coleman is a limited public

10 figure with regard to his claims and he need not demonstrate actual malice in his

prima facie evidence of defamation. See id.; see also McLemore, 978 S.W.2d at 571.

2. Prima Facie Case of Defamation

To maintain a cause of action for defamation, Coleman must demonstrate a

prima facie case that the media defendants: “1) [] published a false statement; (2) the

statement defamed [him]; (3) [the media defendants] acted with negligence

regarding the truth of the statement; and (4) [he] suffered damages or the article is

defamatory per se.” D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 439

(Tex. 2017) (citing Lipsky, 460 S.W.3d at 593).

The parties do not dispute that the media defendants published the article in

question. Therefore, we turn to the second element of defamation and determine

whether Coleman met his burden of proof to present clear and specific evidence that

the article was defamatory concerning Coleman. See id.

a. Defamatory Statement

A defamatory statement

tends to injure a living person’s reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person’s honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.

Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (describing elements of libel). Because

a “‘chilling’ effect would be antithetical to the First Amendment’s protection of true

11 speech on matters of public concern, … a private-figure plaintiff must bear the

burden of showing that the speech at issue is false before recovering damages for

defamation from a media defendant.” Phila. Newspapers, Inc. v. Hepps, 475 U.S.

767, 777 (1986).

A showing of the substantial truth of a publication will defeat a defamation

claim. See McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex.1990); see also Scripps NP

Operating, LLC v. Carter, 573 S.W.3d 781, 791 (Tex. 2019). “The converse of that

doctrine, []is that a defendant may be liable for a ‘publication that gets the details

right but fails to put them in the proper context and thereby gets the story’s “gist”

wrong.’” Dall. Morning News, Inc. v. Tatum, 554 S.W.3d 614, 627 (Tex. 2018)

(quoting Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000)). If the

publication correctly conveys a story’s gist, although erring in the details, the

publication is substantially true and is not actionable. See Neely v. Wilson, 418

S.W.3d 52, 63–64 (Tex. 2013), superseded by statute on other grounds by Scripps

NP Operating, LLC v. Carter, 573 S.W.3d 781, 791 (Tex. 2019). “If the underlying

facts as to the gist of the defamatory charge are undisputed, then we can disregard

any variance with respect to items of secondary importance and determine

substantial truth as a matter of law.” McIlvain, 794 S.W.2d at 16 (citation omitted).

This case concerns “the converse of the substantial truth doctrine.” Turner, 38

S.W.3d at 115. “Because a publication’s meaning depends on its effect on an

12 ordinary person’s perception, courts have held that under Texas law a publication

can convey a false and defamatory meaning by omitting or juxtaposing facts, even

though all the story’s individual statements considered in isolation were literally true

or non-defamatory.” Id. at 114 (citations omitted). This theory “permit[s] liability

for the publication that gets the details right but fails to put them in the proper context

and thereby gets the story’s ‘gist’ wrong.” Id. at 115 (citation omitted). “[T]he

meaning of a publication, and thus whether it is false and defamatory, depends on a

reasonable person’s perception of the entirety of a publication and not merely on

individual statements.” Id. (citations omitted).

In KBMT Operating Co., LLC v. Toledo, the Texas Supreme Court explained

A statement need not be perfectly true; as long as it is substantially true, it is not false. The test for whether a report like [media defendant]’s is substantially true is whether the broadcast taken as a whole is more damaging to the plaintiff’s reputation than a truthful [publication] would have been. This requires determining the import of the [publication] as a whole–its gist to the ordinary [reader]–and comparing it to a truthful report.

492 S.W.3d 710, 714 (Tex. 2016) (internal citations and quotations omitted).

Coleman, therefore, bore the burden of presenting the requisite minimum quantity

of evidence that the “gist” of the publication in question was false as a part of his

prima facie case of defamation. And while a defense to a defamation suit against a

media defendant is “‘literally or substantially true’ facts[,]’” as stated above, we

review the issue in light of “‘a reasonable person’s perception of the entirety of a

13 publication and not merely on individual statements.’” Klentzman, 312 S.W.3d at

899.

Coleman argues that the use of the word “prosecution” is false. He states that

the information as to whether he prosecuted Michael Morton is verifiably false

because he was seventeen years old when Michael Morton was prosecuted, and he

did not become a licensed attorney until 2002. Finally, Coleman asserts that the

article is not even substantially true because the entire article is predicated on the

false statement that he was a prosecutor in the Michael Morton case.

In response, both Reddell and PCP argue that the statement “assisted in the

prosecution” is not false because the word “‘prosecution’ encompasses all stages of

a case.” The appellants argue that Morton was part of the district attorney’s office

during the time that Morton was fighting for post-conviction relief, and that Coleman

was acting as a prosecutor in that office during that time. They contend the affidavit

submitted by Coleman fails to demonstrate that Coleman was not a prosecutor during

that time. According to Reddell, Coleman’s statements in the affidavit that “he did

not sign court papers, argue in court, or discuss strategy in the Michael Morton

case…are self-serving, incomplete, and do not clearly and specifically refute that

[he] indeed assisted on the case.” Reddell argues that the affidavit does not dispute

that the Williamson District Attorney’s office employed Coleman during the post-

conviction proceedings, that he attended hearings, or made statements about the

14 case. Polk County insisted that every time Coleman entered a courtroom to engage

in a fight against Morton, every time they met to discuss the case, or spoke about the

case or made public comments about the case, they “act[ed] as ‘the prosecution’ on

behalf of the State of Texas.”

We disagree with media defendants’ arguments that the use of the term

“prosecution” in this case implies post-conviction prosecution and therefore is

substantially true. Turner, 38 S.W.3d at 115 (explaining that the “substantial truth

doctrine” precludes liability in assessing whether a publication is defamatory). The

article states “[p]rior to his arrival in Livingston, Tommy Lamar Coleman assisted

with the prosecution of Michael Morton during his tenure at the Williamson County

District Attorney’s Office.” The article goes on to describe the change in leadership

of the Williamson District Attorney’s Office during Coleman’s tenure, the

prosecution of Coleman’s boss, Coleman’s mocking Morton’s attempts to get

exoneration, and Coleman’s actions after he left the Williamson County District

Attorney’s Office. The article makes no mention of when Coleman was hired by the

Williamson County District Attorney’s office, what age he was when he was hired

or left, or even when he graduated law school or how long he has been a licensed

attorney. While appellant Reddell argues that the “gist” of the story is substantially

true, and contends that if you remove the offending sentence, it would provide “no

material difference in the entire context of the article[,]” we disagree. We must

15 analyze the publication in the context of how the average viewer, not a “careful

viewer,” would have perceived the publication. See id. at 119 (concluding that a

statement’s defamatory meaning must be viewed from the standpoint of an

“ordinary” listener, not a “careful” listener, and noting that “‘courts must refrain

from a ‘hair splitting analysis’ of what is said ... to find an innocent meaning[.]’”

(quoting Forsher v. Bugliosi (1980) 26 Cal. 3d 792, 722 [163 Cal. Rptr. 628, 608

P.2d 716]). The gist of the article is about Coleman’s career as a prosecutor and how

it led to his employment with the Polk County District Attorney’s Office. Everything

except the last five paragraphs of the article discuss his career at the Williamson

County District Attorney’s Office and the subsequent fallout of the Michael Morton

case. In this respect, we do not believe that an average reader is sufficiently familiar

with the nuances of prosecutions and post-conviction relief to understand without

context when or how Coleman was involved with the prosecution of Michael

Morton. Especially considering that the article does not list Coleman’s dates of

employment with the Williamson County District Attorney’s Office or clarify that

he was only employed there during Michael Morton’s attempts at post-conviction

relief. See id. at 114 (noting that a “publication should be viewed ‘not so much by

its effect when subjected to the critical analysis of a mind trained in the law, but by

the natural probable effect on the mind of the average reader.’”) (quoting Kapellas

v. Kofman (1969) 1 Cal. 3d 20, 920 [81 Cal. Rptr. 360, 459 P.2d 912]).

16 Notably, after being contacted by Coleman about the article and the use of the

word “prosecution,” the newspaper published the following correction concerning

the use of the word “prosecution” in the original article.

CORRECTION Coleman not involved in Morton trial and prosecution

In the June 18, 2020 edition of the Polk County Enterprise, a front-page story about Tommy Lamar Coleman mischaracterized his role while employed with the Williamson District Attorney’s Office.

Coleman graduated from law school in 2000 and was licensed in 2002. He was not involved in the initial trial and prosecution of Michael Morton in 1987, for the murder of Christine Morton.

In 2005, the Innocence Project launched efforts to exonerate Morton, which they finally achieved in 2011. The proceedings that took place between 2005 and 2011 should not have been referred to as “prosecution.” We regret the error.

Finally, we reject PCP’s contention that this information is privileged because

the article reported on “a judicial or other official proceeding.” PCP asserts that to

qualify for this privilege the statement must be “substantially true” account of the

proceeding…and they are not required to “prove the truth of the allegations that it

repeats to its readers.” While we acknowledge the judicial proceeding exception, as

noted by the Texas Supreme Court in Scripps NP Operating, LLC v. Carter, that

exception does not apply when the reporting goes well beyond “merely restating the

allegations of a third party” and adopts the substance of the allegations as if they

were true. 573 S.W.3d at 792. The article states that Coleman was part of the

17 prosecution team, that he mocked Morton’s efforts and that he was part of a group

of prosecutors fired after a District Attorney was elected in Williamson County, due

to Coleman being “indoctrinated” in a school of thought by the previous District

Attorney “which reportedly included a policy that defense attorneys weren’t allowed

to see the evidence against their clients until shortly before trial.” This was more

than simply reporting allegations, but implicating Coleman in prosecutorial

misconduct while employed as a district attorney at the Williamson County District

Attorney’s Office. See id. at 793 (explaining that the privilege does not apply when

the “gist” of the article was that the allegations were true, not merely repeating the

accusations of others).

We conclude, therefore, that Coleman has presented prima facie evidence that when

viewing the publication as a whole in light of the surrounding circumstances, a

person of ordinary intelligence would reasonably but erroneously conclude that the

“gist” of the article was that Coleman was part of the prosecution team that

prosecuted Michael Morton in the 1980’s and otherwise engaged in prosecutorial

misconduct.

b. Defamation Per Se and Damages

Some statements are so obviously injurious to a plaintiff’s reputation that they

require no proof of injury to make them actionable. See Hancock v. Variyam, 400

S.W.3d 59, 63–64 (Tex. 2013); Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt.

18 Holdings, Inc., 219 S.W.3d 563, 580–81 (Tex. App.—Austin 2007, pet. denied).

Such statements are considered defamatory per se. Hancock, 400 S.W.3d at 63–64.

A false statement will typically be classified as defamatory per se if it: (1) “injures

a person in his office, profession, or occupation[;]” (2) “charges a person with the

commission of a crime[;]” (3) “imputes sexual misconduct[;]” or (4) “accuses one

of having a loathsome disease[.]” Tex. Disposal Sys. Landfill, 219 S.W.3d at 581. If

the alleged statement is determined to be defamatory per se, general damages are

presumed without requiring specific evidence of harm to the plaintiff's reputation,

thereby entitling the plaintiff to recover, at a minimum, nominal damages. Id.

The article constitutes clear and specific evidence that the article contained

language that was reasonably capable of injuring Coleman in his office, profession,

or occupation; by implying that he is unethical and untrustworthy, and wrongfully

prosecuted Michael Morton. See id.; see also Tex. Civ. Prac. & Rem. Code Ann. §

73.001. The word prosecution creates an ambiguity and when an ambiguity exists

about the meaning and effect of the words or when a predicate fact question remains

about whether the statements were published or were false, a jury should determine

the statement’s meaning. Tex. Disposal Sys. Landfill, 219 S.W.3d at 581–83 (noting

that defamation per se is generally a legal question, a jury question is presented

where the defamatory character of a statement arises not from the defendants’ blatant

statements but from the impressions the defendants created and the inferences they

19 encouraged). As such, because the article is attacking Coleman’s professional

occupation, it is defamatory per se, and Coleman need not to show actual damages.

Klentzman, 312 S.W.3d at 893 n.4 (citation omitted) (“A statement that is libel per

se is so obviously hurtful that it does not require proof of injury in order to be

actionable.”).

c. Negligence

Since we have already concluded that Coleman is a private citizen, we review

whether Coleman presented prima facie evidence of negligence against the media

defendant. See D Magazine Partners, 529 S.W.3d at 440. “Under that standard, the

defendant is negligent if it ‘knew or should have known a defamatory statement was

false,’ unless the content of the false statement would not ‘warn a reasonabl[y]

prudent editor or broadcaster of its defamatory potential.’” Id. (quoting Neely, 418

S.W.3d at 72). “Negligent conduct is determined by asking ‘whether the defendant

acted reasonably in checking the truth or falsity or defamatory character of the

communication before publishing it.’” Scripps Tex. Newspapers, L.P. v. Belalcazar,

99 S.W.3d 829, 837 (Tex. App.—Corpus Christi 2003, pet. denied) (quoting

Restatement (Second) of Torts § 580B cmt. g (1977)).

Here, Coleman presented an affidavit that stated he did not graduate law

school until 2000 or become a licensed attorney until 2002, well after Michael

Morton was prosecuted by the Williamson County District Attorney’s office in the

20 1980’s. His pleadings presented a copy of his Texas Bar Page, which demonstrated

he was first licensed as an attorney in 2002. It is undisputed that Michael Morton

was prosecuted in the 1980’s. Therefore, Coleman presented sufficient minimum

quantity of clear and specific evidence that the media defendants acted negligently

by publishing the article, as the “gist” of which was that Coleman was a prosecutor

on the Michael Morton case and was part of the possibly unethical, possibly criminal

events during that litigation, and that he was dismissed from the Williamson County

District Attorney’s office because of “indoctrination,” when the proof that he was

not part of the initial prosecution was readily available with a simple internet search

on the Texas Bar website. The article did not contain any information about his age

or his tenure at the Williamson County District Attorney’s Office. Further, the gist

of the article and the use of the word “prosecution” would warn a reasonably prudent

publisher and reporter of the article defamatory potential. D Magazine Partners, 529

S.W.3d at 440, (citing Neely, 418 S.W.3d at 72).

We conclude that Coleman presented the requisite minimum quantum of clear

and specific evidence, unaided by inferences, that the article in question was

defamatory concerning him. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).

Furthermore, because the article was defamatory per se, he need not show actual

damages. Thus, we overrule this issue.

21 IV. Conclusion

The media defendants have not shown that the trial court erred in denying

their motion to dismiss Coleman’s suit at this early stage of the litigation. Because

Coleman presented a prima facie case to the trial court, we overrule Reddell’s and

PCP’s issues regarding the denial of their motion to dismiss under the TCPA. We

need not address their issues regarding attorney’s fees or sanctions. See Tex. R. App.

P. 47.1 (A Court of Appeals must hand down an opinion “that is as brief as

practicable but addresses every issue raised and necessary to final disposition of the

appeal.”). We affirm the trial court’s order denying Appellants’ motion to dismiss

the case.

AFFIRMED.

________________________________ CHARLES KREGER Justice

Submitted on September 2, 2021 Opinion Delivered December 30, 2021

Before Golemon, C.J., Kreger and Horton, JJ.