UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-11019
Summary Calendar
JOSE MARTINEZ
Plaintiff-Appellant,
VERSUS
WAL-MART STORES INC., doing business as Wal-Mart Store #371
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(3:95-CV-0216-BD)
April 7, 1997
Before SMITH, DUHÉ and BARKSDALE, Circuit Judges.
PER CURIAM:1
Appellant Martinez seeks reversal of the district court’s
grant of Appellee’s Motion For Judgment As A Matter of Law
dismissing Appellant’s claim for malicious prosecution. We affirm.
Appellant was accused by Wal-Mart’s loss prevention officer of
shoplifting and was arrested. Subsequently the charges were
1
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
dropped and Appellant brought the instant suit under Texas law for
malicious prosecution. PA jury awarded compensatory and punitive
damages. After the jury returned its verdict for Martinez,
Appellee moved for judgment as a matter of law on the basis that
there was no evidence of lack of probable cause nor of malice. The
district court found no evidence of malice, an essential element of
the cause of action under Texas law and entered a take nothing
judgment against Appellant.
In this court Appellant does not contend that he has produced
direct evidence of malice but argues rather that malice can be
inferred from the facts which the jury apparently did find relating
to the lack of probable cause for the Appellant’s arrest. Our
review of the pertinent law and the record convinces us that the
district court was correct. There was not evidence from which the
jury could infer malice, even if Texas law allows such inference.
The cases cited by Appellant do not support the proposition he
espouses. Viewed in the light most favorable to Martinez, the best
that can be said for his cause is that the evidence showed
negligence on the part of the loss prevention officer.
AFFIRMED.
2