Thomas O. Bennett, Jr. and James B. Bonham Corporation v. Randy Reynolds

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-05-00034-CV

Thomas O. Bennett, Jr. and James B. Bonham Corporation, Appellants

v.

Randy Reynolds, Appellee

FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT
NO. 8027, HONORABLE V. MURRAY JORDAN, JUDGE PRESIDING

OPINION

Thomas O. Bennett, Jr., and the James B. Bonham Corporation each appeal a

judgment awarding Randy Reynolds $5,327.11 in actual damages, imposed jointly and severally

against them, plus punitive damages of $250,000 from Bennett and $1 million from Bonham

Corporation. The judgment was based on jury findings that Bennett, the president of Bonham

Corporation, and the corporation itself converted cattle owned by Reynolds having a reasonable cash

value of $5,327.11; that each acted with malice; and that each committed felony theft. Bennett and

Bonham Corporation each challenge the legal and factual sufficiency of the evidence supporting

various jury findings. Each also contends that the amounts of the punitive damage awards—almost

47 times the actual damages award as to Bennett and almost 188 times actual damages for Bonham

Corporation—exceed the “substantive” limitations of the Due Process Clause. See State Farm Mut.
Auto Ins. Co. v. Campbell, 538 U.S. 408, 417-18 (2003); BMW of N. Am. v. Gore, 517 U.S. 559, 568

(1996); Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 307-08 (Tex. 2006).

As we explain below, we find that the controlling jury findings challenged by the

appellants are supported by legally and factually sufficient evidence. Further, based on the

somewhat unusual record in this case, the punitive damages awards do not exceed due process

limitations. For these reasons, we will affirm the judgment.

BACKGROUND

We will fully detail the evidence as it becomes relevant to our analysis of the

appellants’ issues. To provide some basic factual and procedural context, the principal underlying

events occurred in northern San Saba County on properties situated along the Colorado River, which

carves the county’s boundary with Mills County. As it has long been, cattle ranching continues to

be a common activity in this area.

Several witnesses acknowledged, and none disputed, that the respective rights of

cattle ranchers and landowners in San Saba County are governed in part by an “open range” law.

Simply put, cattle owners are not obligated to fence in their cattle, and any individual landowners

who do not want stray cattle grazing on their vegetation, trampling things underfoot, or causing other

damage commonly associated with these large livestock have the burden of fencing out cattle.

The evidence reflected that although landowners or ranchers in this area typically

maintain barbed-wire fencing to confine their cattle or keep out strays, it is not uncommon for cattle

to escape fenced areas and wander onto other properties. In particular, some areas along the

Colorado River are not fenced, the landowners relying solely on the river and related topography to

2
provide a natural barrier to cattle. During dry spells, however, the river can recede to an extent that

cattle it otherwise confines can escape by wandering into and along the dried river bed. Although

escaped cattle are sometimes never seen again, they often are later located on other properties along

the river. In such instances, the precise manner of recovering the cattle or returning them to their

rightful owner is a matter ordinarily worked out among the neighbors involved in light of their

relationship and past dealings.

This case involves one of those dry spells along the Colorado, stray cattle, and a rather

hostile relationship between two neighbors.

Reynolds’s missing cattle

It was undisputed that during the summer and fall of 2000, drought conditions caused

the Colorado River to dry up, allowing cattle to escape some properties along the river. One of those

properties was a 320-acre pasture abutting the Colorado near the historic Regency suspension bridge

that Randy Reynolds, appellee, leased from Mrs. Willie Mae Locker. Reynolds had been married

to Mrs. Locker’s daughter, Bobbie Lee, until Bobbie Lee’s 1998 death. Reynolds had begun leasing

the property from Mrs. Locker following the 1987 death of his father-in-law, Lloyd Locker; he also

purchased most of Mr. Locker’s cattle at that time.

Having previously lost cattle from the Locker property when the Colorado dried up,1

Reynolds testified that while checking on his cattle, he had been watching the “holes” in fencing

1
Reynolds claimed that he had cattle similarly escape the Locker property fifteen or sixteen
times by time of trial. While he recovered most of these cattle, he never recovered four cow-calf pair
who escaped in 1998 and two bulls who escaped in 2001.

3
created as the river receded. “About a week went by and I didn’t get down there,” Reynolds

recounted. When he checked on the cattle again—which he placed in mid-October 2000 or “a week

or so after the first part of October”—Reynolds discovered 23 head of his cattle missing. He claimed

that he last saw the missing cattle on October 1.

After discovering his cattle missing, Reynolds explained that he called “all the

neighbors up and down the river as we always do” to try to locate them. He also indicated that,

sometime in mid-October, he walked the riverbed looking for his cattle, tracked them along the

muddy and sandy surface through a “hole” where the cattle had avoided the fencing along the east

boundary of the Locker property, downstream past some other properties, and ultimately up the

riverbank toward an open gate. The gate led into the main portion of an approximately 914-acre

property that, while identified on the front gate as the “Bennett Ranch,” was owned by the Bonham

Corporation, appellant. Other portions of the Bennett Ranch also extended to Farm Road 500 and

shared a common fence line with the southern boundary of the Locker property.

The Bonham Corporation’s articles of incorporation state its purposes as

“construction and repair of buildings; development of property; and all related contracts permitted

by law.” Bennett, appellant, is the corporation’s president and registered agent. According to

Bennett, the Bonham Corporation bought land to improve, subdivide into smaller tracts, and resell.

Bennett testified that he had formed Bonham Corporation in 1975 “to put some stuff in it for [his]

daughters,” and he introduced what purported to be stock certificates reflecting that his two

daughters each owned half of the corporation’s stock. Bennett, on behalf of the corporation, had

acquired the property in San Saba County through a series of purchases between 1990 and 1995. The

4
corporation also owned a spread of over 3,800 acres in Navarro County in or near Corsicana, and

had land holdings in several other Texas counties. The corporation owned houses on both the

Bennett Ranch and its Corsicana property,2 where Bennett was permitted to live rent-free.3 Among

other duties as corporation president, Bennett hired, directed and paid ranch hands, whose duties on

the Bennett Ranch included building cattle guards, pens, and fencing, and repairing farm, ranch,

and irrigation equipment. As Bennett described his authority and duties, “I run that ranch,” “I

make the decisions,” and “I take care of my daughters’ interests.” Bennett also ran cattle on

the Bennett Ranch—though he insisted that these activities were purely personal and unrelated

to his corporate duties.

By October 2000, Reynolds and Bennett already had an adversarial history—rooted

in a disagreement over a fence—and had not spoken since 1999. In 1996, while driving, Reynolds

saw Bennett and others working on a fence, stopped, and had a conversation with Bennett.4 The two

gave conflicting accounts of this encounter. Reynolds testified that Bennett and his crew were

bulldozing the pre-existing fence along the boundary dividing the Locker property and the Bennett

Ranch. Reynolds claimed that he had not previously been advised of any plans by Bennett to

demolish or replace the existing fence. Thinking such an action less than neighborly, Reynolds

2
Although both properties had “Bennett Ranch” signs out front, for simplicity and clarity
we will use the term to designate only the San Saba County property.
3
Former ranch worker Larry Grant, whose extensive involvement in the underlying events
is summarized below, described the corporation-owned house on the Bennett Ranch as a “[d]ouble-
wide mobile home put on stilts,” while the house on the Corsicana property was “a big old brick
home.”
4
Reynolds testified that he had first met Bennett in 1995.

5
stopped to inquire of Bennett “what was going on, what he was doing.” According to Reynolds,

Bennett explained that he was going to rebuild the fence anyway and asked whether Reynolds would

pay half of the cost. Reynolds claimed that he told Bennett, “no, it’s not my land,” and that he

couldn’t afford to pay for the fence anyway, but that he would inquire with Mrs. Locker, who owned

the land, to see if she could help. Reynolds testified that Mrs. Locker couldn’t help at the time, and

that he so advised Bennett. Reynolds explained, however, that he did offer to provide labor on the

fence once he returned from an extended work trip to Alaska for which he was leaving the next day.

By the time Reynolds returned five weeks later, he testified, the fence had already been completed.

Bennett, in contrast, claimed that his crew had been working on a Bennett Ranch

fence other than the one bordering the Locker property, that Reynolds had offered to pay half of the

cost if Bennett would also have replaced the fence along the Locker property boundary, and that

Bennett proceeded to replace the fence. Bennett testified that the fence was constructed by Bonham

Corporation, with corporation employees and materials.

Sometime in 1998, Reynolds recounted, Bennett “called me one night” and “wanted

me to pay half the fence.” Reynolds declined, telling Bennett, “I didn’t feel like I owed him for half

the fence.” Subsequently, in 1999, Reynolds had what he termed a “very unpleasant” exchange in

Bennett’s office at his house on the Bennett Ranch. Reynolds’s wife Bobbie Lee had died in 1998

and, by this time, Reynolds was in a romantic relationship with a Bonham Corporation worker, and

had accompanied her to the office to pick up her final check. A dispute arose concerning money

Bennett claimed he was owed for damage the worker had allegedly caused to a pickup owned by

Bennett or the corporation. According to Reynolds, “[a]fter they concluded their business, [Bennett]

6
asked me when I was going to pay him for the fence, and I again told him that I didn’t owe him for

any fence.” Then, Reynolds testified, Bennett called him “a lot of names,” including “liar,”

whereupon Reynolds and the worker left.5

Despite this history, Reynolds claimed that as he was searching for his missing cattle

in October 2000, he tried unsuccessfully to contact Bennett by phone and by looking for Bennett at

his house on the Bennett Ranch. Subsequently, in November 2000, Reynolds testified that he

noticed some of his missing cattle on the Bennett Ranch near Farm Road 500, drove in, and managed

to recover five cattle—four cows and a nursing calf. A few days later, Reynolds claimed he spotted

his missing bull on the Bennett Ranch, again entered, and attempted to recover the bull, which ran

away. Within a few more days, however, Reynolds saw the bull again, made a second effort to

recover him, and was successful. Reynolds denied that he ever took any of Bennett’s cattle out of

the Bennett Ranch, adding that he had cut out a calf that he was less than certain was his.

Reynolds testified that he never recovered any more of his missing cattle. Eventually,

sometime in December 2000, Reynolds began attempting to make contact with Jack Andrews, the

regional field supervisor of the Texas and Southwestern Cattle Raisers Association (TSCRA).6

5
Grant testified that “Tom set that up” to “get Mr. Reynolds in the office and was going to
tape record him and try to get something on him about the fence.” Grant explained, and Bennett later
admitted, that Bennett would sometimes tape-record conversations with other people, concealing a
small tape recorder in a shirt or jacket pocket. Bennett, Grant recounted, had asked him to be present
as a witness during his staged provocation of Reynolds. Grant stated that Bennett brought up the
subject of the fence, “[t]hey got in an argument about it,” and it “got pretty heated.”
6
The TSCRA is an organization comprised of cattle producers and operators located
primarily in Texas and Oklahoma. Among other services, the TSCRA provides livestock theft
investigators who are commissioned as Special Rangers by the Texas Department of Public Safety,
as well as market inspectors who identify and report cattle sold in Texas’s livestock markets to
TSCRA’s Fort Worth headquarters, where the information is entered into a database and made
available to law enforcement agencies nationwide.

7
They did not meet until January 4, 2001.7 Reynolds reported to Andrews that he had seven cows

and nine calves missing, and requested Andrews to check TSCRA records to see if any

cattle with his brand had been sold recently. Andrews’s ensuing search, Reynolds

indicated, turned up nothing.

In the meantime, on or around December 15, 2000, Reynolds was served with papers

in a small claims court suit that Bennett had filed against him.8 Although he had sued individually

and not in the name of Bonham Corporation, Bennett later claimed that he had intended to sue in

his capacity as corporate president. Bennett pled that Reynolds had breached an agreement to

pay half the cost of the disputed fence and sought recovery of $4,500—an average of $3 per foot of

fence. Bennett also sought exemplary damages. The case was tried on January 14, 2001. The court

ruled in favor of Reynolds.

Following the trial, Reynolds mentioned to Bennett that he was missing some cattle

and asked if Bennett had seen them. Bennett acknowledged that Reynolds did not accuse him at this

time of stealing cattle. Bennett responded by accusing Reynolds of stealing Bennett’s cattle.

Bennett later claimed at trial that Larry Grant—who had lived and worked on the Bennett Ranch for

several years before quitting in early January 2001—told him that he’d seen Reynolds taking black

cattle out of the ranch. Bennett and Reynolds each proceeded to the San Saba County Sheriff’s

Office. Bennett reported that he had lost black cows, later testifying that “[m]ost of my cows were

7
Reynolds testified that he wasn’t able to speak with Andrews until sometime during the
Christmas holidays. The two agreed that “we can’t do anything now” and to wait until after New
Year’s.
8
The record is unclear whether Reynolds began attempting to reach Andrews before or after
he was served with the suit.

8
black.” Caught in the middle, Sheriff John Wells accompanied Bennett in driving around the Locker

property to look for Bennett’s cattle, while his deputy, Doug Clancy, similarly accompanied

Reynolds in driving around the Bennett Ranch to see if Reynolds’s missing cattle were there.

Neither effort uncovered any stolen or missing cattle.

Although harboring some suspicions about Bennett, Reynolds testified that, lacking

any firm evidence, he did not file any report with law enforcement accusing Bennett of stealing his

cattle until after a fortuitous discovery in October 2001.

Grant’s photographs

On October 2, 2001, Reynolds was driving with a longtime friend, Mack Maxcey, Jr.,

to a Mills County location where Maxcey had done some construction work. Maxcey had not been

paid for the work, and was in litigation. Reynolds had agreed to provide a third-party estimate of

the cost of the work. While passing by the Bennett Ranch, Reynolds made a comment to the effect

that “I think I’ve lost some cattle in there,” terming the ranch “the black hole.” Maxcey responded

that he might know something about it.

Maxcey’s wife, Debbie, was the sister of Larry Grant. Grant had moved to Coleman

in late December 2000 or early January 2001 and quit working at the ranch shortly thereafter.

Reynolds’s conversation with Mack Maxcey prompted him to contact Debbie Maxcey and ultimately

to initiate one or two phone conversations with Grant on or before October 4. When the two spoke,

Grant informed Reynolds about an incident where Bennett had directed Grant to haul to auction and

sell some cattle that Grant had believed did not belong to Bennett. While en route to the auction

barn, moreover, Grant had stopped at the Dollar General Store in San Saba, purchased a disposable

9
camera, and taken several pictures of the cattle in the trailer because, Grant later testified, he had

wanted to cover himself. Grant had then proceeded to the Jordan Cattle Auction, an auction barn

in San Saba, and, as instructed, sold the cattle in Bennett’s name.9

According to Reynolds, he advised Grant that he did not want to obtain or see the

photos himself, but would be referring the matter to law enforcement for further investigation.

Reynolds recounted that he called the Texas Rangers and Sheriff Wells, who “took it from there.”

Grant testified that he cooperated with the subsequent investigation and gave the photographs to the

TSCRA’s Jack Andrews during a meeting approximately a month after his conversations with

Reynolds. The investigation continued and, in early 2002, Bennett was indicted for cattle theft. He

was tried in 2003. On the evidence presented at the time—including a key exhibit that Reynolds

later accused Bennett of “dummying up”—Bennett was acquitted.

Proceedings below

In February 2002, shortly after Bennett’s indictment, Reynolds brought the present

suit against Bennett and Bonham Corporation. As he amended his pleadings before trial, Reynolds

alleged that Bennett and the Bonham Corporation converted at least 13 head of his cattle by selling

them at Jordan Cattle Auction on or about October 11, 2000, and keeping the proceeds of $5,327.11.

Reynolds also sought punitive damages in excess of statutory caps from both defendants, alleging

9
Grant testified that he did not previously know who owned the cattle depicted in the photos
or their brands, only “[t]hat Tom stole some cows.” He did not reveal the photographs’ existence
to Bennett or to law enforcement—although he did confide in his sister, Debbie Maxcey. Ms.
Maxcey recounted that she thought Grant showed her the prints sometime in December 2000, before
he left the Bennett Ranch. Grant testified that he took the prints and negatives with him to Coleman
(where he kept them in a box that included “a thousand pictures”) and eventually forgot about them.

10
that each had acted with malice and that their conduct is classified as a third-degree felony or higher

in chapter 31 of the penal code.10 Reynolds additionally alleged a theory of “reverse” alter-ego

liability against Bonham Corporation, pleading that “[t]he James B. Bonham Corporation is an ‘alter

ego’ or mere extension of Defendant, Thomas O. Bennett, Jr.,” such that “the acts of Bennett are the

acts of the Corporation and Bennett should not be allowed to protect his assets by holding them in

the Corporation’s name.”11 Bennett counter-claimed against Reynolds, alleging that he conspired

with Larry Grant “to wrongly and falsely accuse [Bennett] of stealing [Reynolds’s] livestock,” and

seeking actual and punitive damages. The case was tried to a jury in a bifurcated proceeding.

During the liability phase of trial, the evidence was undisputed that on October 11,

2001, Grant, at Bennett’s direction, had transported to Jordan Cattle Auction and sold, in Bennett’s

name, 13 cattle found on the Bennett Ranch—7 cows and 6 calves—garnering total net proceeds of

$5,327.11. Beyond this, the parties presented hotly-disputed evidence concerning (1) whether

Reynolds or Bennett had owned the cattle; (2) Bennett’s state of mind regarding the cattle’s

ownership; and (3) the culpability of Bonham Corporation for any wrongful acts by Bennett. This

evidence, which we describe below, included not only Grant’s photographs, auction barn records,

and other comparisons of Reynolds’s missing cattle with the 13 cattle sold, but also allegations of

attempted blackmail, bribery, witness-tampering, and evidence fabrication.

10
See Act of April 6, 1995, 74th Leg., R.S., ch. 19, § 1, sec. 41.008, 1995 Tex. Gen. Laws
108, 111 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 41.008(c)(13)
(West Supp. 2007) (exempting from statutory caps on punitive damages conduct described in chapter
31 of penal code as third-degree felony theft).
11
See Zahra Spiritual Trust v. United States, 910 F.2d 240, 243-46 (5th Cir. 1990); cf.
Castleberry v. Branscom, 721 S.W.2d 270, 271-72 (Tex. 1986) (describing conventional alter-ego
theory of piercing corporate veil to impose liability on individual for corporation’s acts).

11
 The district court submitted issues inquiring as to whether Bennett, Bonham

Corporation, or both, “either individually or through an agent, convert[ed] . . . cattle owned by Randy

Reynolds”; “the reasonable cash market value, if any, of the cattle converted by any of the

Defendants”; whether each defendant had acted with malice; and whether each defendant had

committed theft of 10 or more head of cattle during a single transaction and the aggregate value of

those cattle was less than $100,000.12 In addition to submitting these liability issues against Bonham

Corporation with instructions regarding agency principles, the district court also submitted, over

Bonham Corporation’s objection, Reynolds’s reverse alter-ego theory. The jury found in the

affirmative on each of the liability issues submitted against each defendant and found that the

reasonable cash value of the converted cattle was $5,327.11, an amount corresponding to the net

proceeds from the sale of the 13 cattle.

The district court also submitted issues inquiring as to liability, causation and

damages under Bennett’s counter-claim that Reynolds conspired with Grant to falsely accuse him

of cattle theft. These issues were predicated upon an adverse jury finding on the issue of whether

Bennett had converted cattle. Having found that Bennett had converted Reynolds’s cattle, the jury

did not reach the conspiracy issues.

Following the punitive-damages trial phase, the jury awarded $250,000 against

Bennett and $1 million against Bonham Corporation. The district court rendered judgment on the

12
Theft of “10 or more head of cattle . . . stolen during a single transaction and having an
aggregate value of less than $100,000” is a third degree felony under chapter 31 of the penal code.
See Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 9, 1995 Tex. Gen. Laws 2734, 2738 (current
version at Tex. Penal Code Ann. § 31.03(e)(5)(A) (West Supp. 2007)). Thus, this issue controlled
whether chapter 41's statutory caps on punitive damages would apply.

12
verdict, awarding Reynolds $5,327.11 in actual damages against Bennett and Bonham Corporation,

imposed jointly and severally, $250,000 in punitive damages against Bennett, and $1 million in

punitive damages against Bonham Corporation. Bennett and Bonham Corporation each appeal.

ANALYSIS

Bennett brings seven issues on appeal. In his first six issues, Bennett challenges the

legal and factual sufficiency of the evidence, respectively, supporting the jury’s findings that the

reasonable cash market value of the converted cattle was $5,327.11 (issues 1 & 2); that the harm to

Reynolds resulted from malice by Bennett (issues 3 & 4); and that Bennett committed theft of 10 or

more cattle having an aggregate value less than $100,000 (issues 5 & 6). Bennett thus does not

challenge the jury’s finding that he “either individually or through an agent, convert[ed] . . . cattle

owned by Randy Reynolds.”

Bonham Corporation brings 12 issues. In its first issue, it complains of charge error

in the district court’s submission of a reverse alter-ego theory of liability against it. Bonham

Corporation’s second through eleventh issues challenge the legal and factual sufficiency of

the evidence supporting the jury’s findings that Bonham Corporation was an alter ego of Bennett

(issues 2 & 3); that Bonham Corporation, through an agent, converted cattle owned by

Reynolds (issues 4 & 5); that the reasonable cash market value of the converted cattle was

$5,327.11 (issues 6 & 7); that Bennett’s malice could be attributed to Bonham Corporation (issues

8 & 9); and that Bonham Corporation committed theft of 10 or more cattle having an aggregate value

less than $100,000 (issues 10 & 11).

13
 In the final issue brought by each appellant, Bennett and Bonham Corporation assert

that the punitive damages awards imposed by the jury violate due process of law.

Sufficiency-of-the-evidence issues

Standard of review

We will sustain a legal-sufficiency complaint if the record reveals: (a) the complete

absence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to

the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no

more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact.

City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). The ultimate test for legal sufficiency

is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict

under review. See id. at 827.

When the evidence offered to prove a vital fact is so weak as to do no more than

create a mere surmise or suspicion of its existence, the evidence is less than a scintilla and, in legal

effect, is no evidence. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). But more

than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and

fair-minded people to differ in their conclusions. Id. We review the evidence in the light favorable

to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary

evidence unless reasonable jurors could not. See City of Keller, 168 S.W.3d at 807.

When reviewing a challenge to the factual sufficiency of the evidence supporting

a vital fact, we must consider, weigh, and examine all of the evidence in the record, both

supporting and against the finding, to decide whether the verdict should be set aside. Plas-Tex, Inc.

14
v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Pool v. Ford Motor Co., 715 S.W.2d 629, 635

(Tex. 1986). We should set aside the verdict only if the evidence that supports the jury finding is

so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986). But we may not merely substitute our judgment for that of the jury. Pool, 715 S.W.2d

at 635. The jury remains the sole judge of witnesses’ credibility and the weight to be given their

testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

With both legal and factual sufficiency challenges, the starting point of our

analysis—barring a preserved and valid complaint of charge error—is the charge actually submitted

to the jury. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (legal sufficiency); Jackson,

116 S.W.3d at 762 (factual sufficiency); Ancira Enters., Inc. v. Fischer, 178 S.W.3d 82, 93

(Tex. App.—Austin 2005, no pet.). Here, Bennett brings no complaint of charge error, and Bonham

Corporation’s sole issue concerns the reverse alter-ego submission. That complaint, as we explain

below, we need not reach.

Reynolds’s ownership of the cattle

On the record before us, we can uphold the jury’s finding of $5,327.11 in actual

damages against the appellants’ challenges only if there is legally and factually sufficient evidence

that Reynolds owned all 13 of the cattle sold in Bennett’s name at Jordan Cattle Auction—and not

some lesser number.13 If we conclude there is legally and factually sufficient evidence that Reynolds

13
On appeal, Bennett concedes that “[t]he evidence shows that some of the cattle [sold on
October 12, 2000] may have belonged to [Reynolds].” However, he urges that the evidence is
insufficient to support the full $5,327.11 in actual damages the jury awarded as the reasonable cash
value of the cattle converted. Bennett asserts that “by making this finding,” the jury “by necessity

15
owned all 13 of these cattle, this would also foreclose Bennett’s challenges to the “cap-buster”

finding against him because he complains only that the evidence cannot support a finding that

he committed “theft of 10 or more head of cattle during a single transaction . . . .” We conclude

that the evidence is legally and factually sufficient for the jury to find that Reynolds owned all

13 of the cattle.

Bennett’s principal argument to the contrary is that “[a]t most, [Reynolds] identified

four head of cattle that belonged to him from the pictures taken by Larry Grant.” We observe that

while the photographs were a component of Reynolds’s proof of his ownership at trial, Reynolds

relied on a much broader range of circumstantial evidence. The inferences the jury could reasonably

draw from this evidence depend in part on numerous contextual facts regarding cattle ranching and

the manner in which the cattle were sold.

As already noted, it was undisputed that weather conditions at relevant times were

conducive to cattle escaping pastures along the Colorado by entering the exposed riverbed. The jury

heard evidence that in mid-October 2000—approximately the same time that Bennett had the

13 cattle sold in his name at Jordan Cattle Auction—Reynolds had discovered 23 of his head missing

from the pasture he leased from Mrs. Locker. Reynolds recounted that these cattle consisted of

found that 13 head of cattle were converted.” Reynolds does not question that, in light of the
evidence of actual damages, the jury’s award must be based on legally and factually sufficient
evidence that all 13 cattle had belonged to him. See First State Bank v. Keilman, 851 S.W.2d 914,
930 (Tex. App.—Austin 1993, writ denied) (evidence enabled jury only to choose between
alternative damages figures and did not support award within range between those figures).

Although Bonham Corporation, unlike Bennett, challenges the jury’s finding that it converted
cattle, it advances the same arguments as Bennett in challenging the jury’s award of $5,327.11 in
actual damages from the conversion.

16
11 black Brangus cows, each paired with a calf, plus a black Limousin bull. At the time, Reynolds

testified, he had been running a total of 29 mother cows on the property, all Brangus, and all black

except for one red Brangus, along with the black Limousin bull. Among the calves that year were

“a couple of smoky calves”—i.e., gray calves—that Reynolds attributed to breeding between the

black cows and a Charolais bull that Reynolds had placed on the property the previous year.

Reynolds observed that his cows generally calved in January or February, and that by October, the

calves were running “[f]ive or six hundred pounds.”

Reynolds added that the missing cows—though not the calves or the bull—each bore

a “Rafter L” brand on the right hip.14 Generally speaking, the Rafter L resembled a capital “L” or

inverted J, with a rafter shape, similar to an inverted “V,” atop the L. The Rafter L had been the

registered brand of the late Lloyd Locker. After Mr. Locker died and Reynolds purchased many of

his cattle, Reynolds registered the Rafter L in his own name.15

Reynolds also noted that some of the missing cows, although he was unsure how

many, also bore an “MK” brand on the left hip. That brand, several witnesses confirmed, was a

registered brand of Frank and Melanie King, the owners of Bay Maintenance, Inc. Reynolds

testified—and records from the Jordan Cattle Auction, where he had bought the cattle, confirmed

—that he had purchased 11 cow-calf pair—six black, five red—from Bay Maintenance in June 1998.

Reynolds stated that he had placed the 11 pair on the Locker property and branded them with the

14
Reynolds explained that after calves were born, he would generally brand his heifers when
they were yearlings if he had decided to keep them, but would sometimes wait longer before
deciding “[t]o see what kind of calf they have.”
15
Reynolds explained that his wife was a Locker, the brand was already known in San Saba
County, and the cattle he had purchased already bore the brand.

17
Rafter L.16 He also observed that by October 2000, he “probably” no longer had any of the original

cattle that Mr. Locker had owned or branded.

As previously noted, Reynolds testified that he had tracked his escaped cattle along

the dried Colorado riverbed to an open gate leading into the Bennett Ranch. In November 2000,

moreover, he recovered from the Bennett Ranch six of the missing cattle—four cows, a calf, and

the Limousin bull—leaving 7 of his cows and 10 calves unaccounted for. To further link his

17 unrecovered cattle to the 7 cows and 6 calves that were sold,17 Reynolds compared the

physical features of his missing cattle to various witnesses’ descriptions of the 13 cattle as they were

being rounded up and sold.

Larry Grant testified that when assisting Bennett in rounding up and loading the cattle

for transport to auction, “I had my doubts” that the cattle belonged to Bennett, based on his

experience in working on the Bennett Ranch for several years and also living there for extended

periods. Grant and other witnesses also testified concerning the cattle’s identifying characteristics

as they were viewed or recorded at Jordan Cattle Auction during the sale process. Among the

witnesses describing the auction barn’s operations and business records were Kynda Jordan, the

Jordan Cattle Auction bookkeeper and records custodian, and John Wells, Sheriff of San Saba

County. Sheriff Wells, it so happens, had worked for the auction barn for several years before

becoming sheriff.

16
As several witnesses noted, it is not unusual for cattle to bear more than one brand, as
succeeding purchasers may add their own brands to those remaining from prior owners.
17
In other words, under Reynolds’s theory, four of his missing calves were neither recovered
by him nor sold by Bennett.

18
 As the process was described at trial, when cattle are unloaded at Jordan Cattle

Auction, they are moved through a chute, auction barn personnel slap an adhesive paper tag on each

head’s hip that is coded to identify the seller (the “back tag” or “sale tag”), and a check-in form is

completed that indicated the identity of the seller, the time of delivery, the sale tag number of each

head, and a description of each head. A copy of such a check-in form was given to Grant, which

reflected that the seller was Tom Bennett, at the Bennett Ranch address; delivery on October 11,

2000, at 10:51 a.m., of 7 black cows, 3 black heifer calves, 2 black steer calves, and one gray steer

calf; and sale tags numbered 992-1005.

Grant testified that he witnessed the unloaded cattle going through the chute moving,

from his perspective, left-to-right, with their heads to the right and rears to the left, such that he was

viewing the right sides of the cattle.18 He recounted that he saw a common brand on the right sides

of the cows that looked “[l]ike a backwards ‘J.’” Grant claims that he had not noticed the brands

until that time, and admitted that, at the time, he had not known what Reynolds’s brand was.

Nonetheless, upon seeing the brands, Grant testified, “I knew they wasn’t Tom’s cows,” explaining

that “all the brands were on that side and Tom don’t brand his cows.”

Jordan Cattle Auction was required to test the blood of each adult female head of

cattle who had given birth for brucellosis. A veterinarian would oversee the “bleeding” of each cow

and log her identifying information, chiefly an identification number found on a permanent metal

18
While consistently stating that he was viewing the cattle as they moved head-first through
the chute going left-to-right, Grant initially used “left” rather than “right” to identify the side of the
cattle he was viewing. He later corrected himself, explained that he had initially used “left” from
the perspective of one facing the cattle head-on.

19
tag in her ear (the “ear tag” or “blood tag”). Sheriff Wells explained that some cows brought to

auction would already have an ear tag that had been applied either when she was vaccinated as a calf

or when previously tested at sale or upon birth of a calf. Other cows who did not have tags, Wells

explained, would each be given one at the auction barn.19

A log dated October 12, 2001, reflected brucellosis testing of seven adult female

black cows being sold by Bennett having ear tag numbers SYP8071, SNH2957, and five with the

prefix ELB and numbers 3921, 3924, 3926, 3934 and 3935. The entries for these cattle on the log

were interspersed with those for cattle being sold by others (consistent with the cattle, already with

sale tags attached, having been mixed in a pen with other cattle by that time). Observing that all of

the ELB-prefixed tag numbers appeared on the log in perfect sequential order,20 Sheriff Wells

deduced that, based on his experience, the ELB-prefixed ear tags had been applied at Jordan Cattle

Auction to cows not already having ear tags when tested, while the other prefixes represented ear

19
Wells elaborated that “[t]here’s a vaccine to prevent brucellosis that’s given to a heifer
before she’s had a calf. After she’s had a calf, they do a brucellosis test. There’s lots of cows with
tags in their ears that just had a brucellosis test and they were not calfhood vaccinated.” He added
that “[i]f they’ve been through a sale before, they’re usually going to have one. It’s like on my
cattle, I don’t calfhood vaccinate them. And when I sell them, they put a tag in their ear.”

During cross-examination, Wells acknowledged that cows who were vaccinated for
brucellosis as calves would also receive ear tattoos—a potential identifying mark. During her cross-
examination, Kynda Jordan seemed to suggest that the tattoo would be a number consistent with the
ear tag. Wells observed, however, that “[m]ost of the tattoos are not readable,” “I’ve never seen one
tattooed when they’re testing for brucellosis” as opposed to calfhood vaccination, and that he had
never seen a tattoo given to a grown cow.
20
Two pages of this log were in evidence. The ear tag entries contain a wide variety of ear
tag prefixes and numbers, but 24—roughly half—had a prefix of “ELB.” Each of these 24 entries
have numbers running, in perfect sequential order on the log, and regardless of the cow’s owner,
from ELB3915 through ELB3938.

20
tags that were already on the cows when tested. Consequently, in Wells’s analysis, only two of the

seven cows being sold by Bennett were already bearing ear tags at the time they were tested.

Wells testified that he traced back the two preexisting ear tag numbers—SYP8071

and SNH2957—and, while not finding a perfect match, identified each as being virtually identical

to an ear tag on one of the cows that Randy Reynolds had purchased through Jordan Cattle Auction

from Bay Maintenance in 1998. Wells observed that the brucellosis testing logs of the Bay

Maintenance cows when sold in 1998 reflected one having an ear tag numbered SYP8701—differing

from Bennett’s SYP8071 only in the transposition of the 0 and 7—and another with

SNH2967—differing from Bennett’s SNH2957 only in the substitution of a 6 for the 5. Wells

opined that these were likely the same ear tag numbers, attributing the deviations to logging errors

amid what he described as a chaotic environment in which the tag numbers would have been

identified and recorded.21

The cattle were also examined prior to sale by a TSCRA brand inspector,

David Munden. Munden testified that his job was to “gather the brands on cattle on each week at

21
Sheriff Wells explained:

[T]he cows are run down a chute, a hydraulic chute, and there’s a lot of cows
bawling, kicking, the hydraulic, and they catch the cow’s head in the head gate, and
an individual reads the number off to another individual standing by what they call
the vet shack. They’ve got a little table where they’re writing this down.

Wells added that during a “regular sale,” “probably 1200” cattle—comprised of “a few cows and a
lot of calves”—would go through the sale barn, while during a “special sale” a much greater
proportion of cows relative to calves would be sold. Because cows, not calves, were required to be
tested for brucellosis, a special sale required much more testing and logging than a regular
sale—creating an even more chaotic atmosphere. Wells observed that Reynolds purchased the Bay
Maintenance cattle at a special sale, suggesting an even greater than normal prospect of human error
when those cattle’s ear tags were logged.

21
a sale and then I fill out a form to send those brands into the main [TSCRA] office in Fort Worth.”

Munden completed such a form—known as an “F1”—regarding the 13 head being sold by Bennett.

He did not specifically describe each head, but indicated only that the cattle had sale tag numbers

“992-1005,” and checked boxes on the form indicating that the cattle were black in color, cows,

and muleys (without horns). Munden also indicated that the cattle had a “holding brand”—a

brand common to each of the cattle, but not necessarily the sole brand that each had—a Rafter L,

albeit on the left hip.22

Once the cattle were sold, a Jordan Cattle Auction sales sheet, dated October 12,

2000, was generated with an itemized description of each of the 13 head and the amount for which

each sold. The documents also reflected that the total of these sale prices, net of commission and

fees, equaled $5,327.11. It also described the cattle by sale tag number,23 color, description, buyer,

weight, and price for which each sold. The document reflected the sale by Bennett of 7 black cows,

3 black heifer calves, 2 black steer calves, and 1 gray steer calf, and that each head was sold

separately among several different buyers. It also reflected that the black calves weighed 480, 495,

510, 560, and 595 pounds, although the gray steer calf weighed 805 pounds. A check for $5,327.11

22
Munden acknowledged that he did not indicate on the F1 that the 13 head had included
any calves and that he should have indicated separately the back tag numbers and descriptions of any
calves or un-branded cattle. He further admitted that he would rely primarily on the auction barn’s
check-in form to identify the cattle being sold by each owner, that he would track down and examine
the brands on those cattle while they were in a pen mixed with numerous other cattle, and that “I
might have made a mistake” while identifying the brands or descriptions of the cattle. Munden
suggested that he “probably” had failed to properly write down the descriptive information from the
check-in form for all 13 of the cattle.
23
These corresponded to the sale and back tag numbers recorded on the check-in form and
the brucellosis testing logs.

22
was also generated, payable to Tom Bennett. It is undisputed that Bennett cashed the check

and spent the funds.

Viewing the foregoing evidence in the light most favorable to the verdict, and

crediting the favorable evidence that the jury reasonably could have and disregarding contrary

evidence unless the jury reasonably could not have, the jury could have reasonably inferred that

(1) 23 head of Reynolds’s cattle had escaped the Locker property and entered the Bennett Ranch at

the same time that Bennett had the 13 cattle rounded up and sold; (2) Reynolds’s descriptions of his

missing cattle corresponded to the descriptions of the 13 cattle reflected in Jordan Cattle Auction

records, including matching colors, weight, and gender; (3) both Munden and Grant had identified

or described a Rafter L brand they had seen on the 7 cows; (4) Sheriff Wells had traced two of the

cows to those Reynolds purchased from Bay Maintenance in 1998; and (5) at the time Reynolds’s

cattle went missing, the calves were each still paired with a cow.24 Bennett barely acknowledges this

evidence,25 focusing instead on the content of Grant’s photographs.

Ten of Grant’s photographs were in evidence.26 Bennett acknowledged that the

images depicted the same cattle that had come off the Bennett Ranch on October 11, 2000, and were

24
Also, when Reynolds recovered four cows and one calf from the Bennett Ranch in
November 2000, a month later, he recalled that one of the calves was still nursing.
25
Bennett does argue that David Munden “had no independent recollection of the cattle,”
“testified merely from a written record,” and inspected the cattle while they were mixed in a pen with
numerous other cattle (although they were bearing sale tags). These matters go to the weight to be
given Munden’s testimony and are for the jury alone.
26
The jury considered two versions of the same images: Grant’s original prints, which were
identified as PX-5 through -14—which had also been exhibits in Bennett’s criminal trial—and
enlargements of the same pictures from Grant’s negatives, labeled as PX-5A through -14A. The
original prints were roughly 3”x5” prints, while the enlargements appeared to be 4”x 6”. Reynolds’s
counsel also was permitted to utilize computer-scanned images of the negatives and an overhead
projector to display enlarged images of the photographs to aid the jury. We will identify the
photographs being referenced in testimony simply as PX-5 through PX-14, except where their format
becomes relevant.

23
the same ones sold on the following day. The parties hotly disputed what the photographs

showed, however. We observe that neither Reynolds nor Grant elaborated on whether

the photographs—some of which show only close-ups of brands or other cattle features—depict

each of the 13 cattle in the trailer or the extent to which some of the cattle were depicted in more

than one photograph.

Reynolds testified that three of the photographs—PX-5, -6, and -8—depicted at least

one black cow with a Rafter L brand. David Munden, the TSCRA brand inspector, concurred that

these brands were Rafter L’s. Reynolds and Munden also agreed that another photograph, PX-7,

depicted a close-up of an “MK” brand on a cow’s left hip—the brand of Bay Maintenance owners

Frank and Melanie King, registered in McCulloch County. Harold Gage, the ranch manager for the

Kings, also testified that the brand “looks to me like it’s the MK,” the Bay Maintenance brand, and

that the brand appeared in the location on the cow where Bay Maintenance normally placed it. Gage

was unaware of anyone else who had registered the MK brand in another county. Reynolds further

observed that the cow looked like one of those he had purchased from Bay Maintenance in 1998 and

placed on the Locker property.

In another photograph, PX-9, Reynolds identified a calf in the right foreground

as a “smoky calf” that looked like one of those he had on the Locker property, the product of cross-

breeding between one of his black Brangus cows and Charolais bull. Finally, according to

Reynolds, PX-13 was a close-up of a brand on a cow’s left hip that, according to Reynolds, “looks

like a Box W.” Reynolds testified that he owned some cattle bearing the Box W brand that he

had previously purchased.

At trial, Bennett disputed whether any of Grant’s photographs showed a Rafter L

brand. He described one of the brands shown in PX-6, identified by other witnesses as a Rafter L,

as “a quarter cycle L,” suggesting that it had a “round top” distinguishable from what he

24
characterized as the pointed top of the Rafter L brand. Bennett was similarly adamant that the

“MK” other witnesses identified in PX-7 was actually an “ML” brand on a cow that he had

purchased in Brownwood or Abilene27; that the “smoky” calf in PX-9 was actually a “red, red

cow” that “came out of [his] red Santa Gertrudis cow”; and that the cow in PX-13 “came from

the Brownwood cattle.”

Bennett also asserted that one of the brands shown in PX-6, identified by other

witnesses as a Rafter L, was actually a D with a slash through its upper left corner—“a bar D, like if

a man had a brand name Tom Dooley or something.” In support, Bennett relied on what purported to

be two enlargements of PX-6 that had also been key to his defense in his criminal trial. PX-35 was

roughly 8 ½” x 11”, while PX-36 was a large poster-sized print. In each enlargement, Bennett

pointed to what appeared to be a white rounded line in the brand connecting the bottom right end

of what the other witnesses had identified as the “L” to the right lower end of the

“rafter,”creating the “D.” During his adverse direct examination of Bennett, Reynolds’s counsel

27
Bennett initially contended that the cow bore the registered brand of a Mark Lundgren of
Jones County, from whom Bennett claimed he had purchased 22 black cattle in 1995. He introduced
what purported to be a handwritten receipt from the individual who delivered the cattle to Bennett.
Bennett claimed that he had purchased these and other cattle in response to newspaper
advertisements. (Thus, the transaction would have lacked the more extensive “paper trail” of
Reynolds’s transactions through Jordan Cattle Auction).

When confronted with Jones County brand records indicating that Mr. Lundgren branded on
the right hip and his admission that the brand in the photo was on the left hip, Bennett at first
dismissed the discrepancy, explaining that, “Just because it that’s on the wrong hip, that doesn’t
mean anything. A lot of times people get them on the wrong hip.” Bennett subsequently pointed out
that other ranchers had registered brands in Jones County that were some version of an “ML” on the
left hip. Bennett suggested that he had bought cattle in Brownwood that “could have come from
there.”

25
questioned whether Bennett had “dummied up” his enlargements of PX-6 while showing the

jury enlarged images of PX-6 on an overhead projector, challenging Bennett to find the rounded

white line and “D” shown in his enlargements. Bennett steadfastly insisted that the “D” was clearly

discernable in the images.28

28
The following exchange is illustrative of what the jury heard and saw regarding Bennett’s
“Tom Dooley” brand:

Q: . . . And what you’re saying is, if you blow this thing [PX-6] up, it will look
like a D? Is that what you’re saying?

A: Yes, sir. . . . It looks like a D. It says a D.

Q: There—lower that a little bit. Enlarge it a little more. Bring it down to the
middle. Enlarge it a little more. Can you enlarge it again?

Does that start looking like a D to you?

A: Yes, sir. You can see the white coming out over there with the hairs grown
over it. On the right, you can see it coming out, right there on the right.

Q: You talking about right there?

A: Right there, yes, sir.

Q: Okay. You think that’s making a D?

A: Yes, sir. It comes right up.

Q: Well, let’s enlarge it a little bit more. Can you move it over there where that
white was?

A: You can see that coming right on up, yes, sir.

Q: And you’re claiming that that makes that D?

A: You can see where the—it’s coming up, yes, sir. That’s the hair growing
over it.

26
 Bennett acknowledged that he had made PX-35 “[p]robably at Wal-Mart” on

a “picture machine” resembling a “copy machine.” He had the poster-sized PX-36 blown up “[a]t

a place in Dallas . . . that has a big picture machine,” but could not name the person who made it.

Bennett also admitted that he had not presented any expert testimony to authenticate

the enlargements—even though he had designated an expert to prove up some of his

tape recordings—because “I didn’t feel like I needed one . . . because anybody can look at

that picture and see it.”

In addition to viewing the brands depicted in the photographs, the jury considered

evidence that Reynolds’s Rafter L brands were not entirely uniform because of differences in the

Q: How much larger are we going to have to make it before you can see that D
like you can in the exhibit you offer?

A: I already said I can see the D, sir.

Q: Well, it’s pretty plain in your exhibit, isn’t it?

A: It’s pretty plain in yours to me.

Q: You think that’s plain?

A: Yes, sir. Positively not—not a Rafter L.

* * *

Q: And it’s your sworn testimony that the D brand on Plaintiff’s Exhibit No. 36
is an untouched-up blow-up of Plaintiff’s Exhibit No.—or State’s Exhibit
No. 2 [in the criminal trial] . . . [w]hich is Plaintiff’s Exhibit No. 6 in this
case?

A: That’s right.

27
branding irons he used, “smearing” of the brand due to blistering, and the difficulty of achieving a

“perfect” brand on a cow struggling to escape the hot iron.

We conclude that the jury could reasonably have resolved conflicts in the evidence

to conclude that the photographs depict several cows with Rafter L brands, a cow with the Bay

Maintenance MK brand that resembled one of those Reynolds purchased in 1998, a box W brand that

some of Reynolds’s cattle bore, and Reynolds’s “smoky” calf.29 Further, as we elaborate below, the

jury could have considered Bennett’s own evidence of ownership—especially the “Tom Dooley”

enlargements—as probative of his ongoing efforts, continuing through trial, to avoid his knowing

responsibility for having sold Reynolds’s cattle.

We conclude that the evidence was sufficient to enable a reasonable and fair-minded

jury to infer that all 13 cattle had belonged to Reynolds. See City of Keller, 168 S.W.3d at 827.

Furthermore, considering both the evidence supporting the finding and the contrary evidence on

which the appellants rely on appeal, we conclude that the contrary evidence is not so overwhelming

as to render the jury’s finding clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176.

Such inconsistencies go merely to the testimony’s weight or credibility, and were within the sole

province of the jury to resolve. Jackson, 116 S.W.3d at 761. We accordingly overrule Bennett’s

first, second, fifth and sixth issues, and Bonham Corporation’s sixth and seventh issues.

29
On appeal, Bennett also asserts that Reynolds “did not claim to own the cow depicted in
PX-7,” suggesting some sort of conclusive admission by Reynolds that he did not own at least one
of the 13 cattle in the trailer. We have reviewed the testimony on which Bennett relies and conclude
that, at most, Reynolds acknowledged some inconsistencies between his trial and deposition
testimony regarding his perceptions of PX-7 that were not conclusive, go only to Reynolds’s
credibility, and which the jury could have disregarded.

28
 Malice by Bennett

The district court’s submission of Bennett’s liability for punitive damages inquired

whether the jury found “by clear and convincing evidence that the harm to Plaintiff resulted from

malice by Defendant Bennett.” “Malice” was defined as:

(a) a specific intent by Defendant Bennett to cause substantial injury to Plaintiff;
or

(b) an act or omission by Defendant Bennett;

(1) which, when viewed objectively from the standpoint of Defendant
Bennett at the time of its occurrence, involved an extreme degree of
risk, considering the probability and magnitude of the potential harm
to others; and

(2) of which Defendant Bennett had actual, subjective awareness of the
risk involved, but nevertheless proceeded with conscious indifference
to the rights, safety or welfare of others.

“Specific intent,” as referenced in subpart (a) of the malice definition, means that “the actor desires

to cause the consequences of his act, or that he believes the consequences are substantially certain

to result from it.” Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985). Subpart (b)

corresponds to the definition of gross negligence. See Mobil Oil Co. v. Ellender, 968 S.W.2d 917,

921 (Tex. 1998). As reflected in the charge, it has two elements. Under the first or “objective”

element, “extreme risk” is not a remote possibility of injury or even a high probability of minor

harm, but rather the likelihood of serious injury to the plaintiff. Id. at 921. Under the second or

“subjective” element, “actual awareness” means that the defendant knew about the risk, but the

29
defendant’s acts or omissions demonstrated that it did not care. See Wal-Mart Stores, Inc.

v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993).

Malice may be proven by circumstantial evidence. Transportation Ins. Co.

v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994). Malice may be implied from the conversion of another’s

property when the defendant knew or should have known he had no legal right to the

property. Kinder Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 447-48

(Tex. App.—Texarkana 2006, no pet.).

The charge also defined “clear and convincing evidence” as “the measure or degree

of proof that produces a firm belief or conviction of the truth of the allegations sought to be

established.” In light of this heightened standard of proof, we analyze Bennett’s sufficiency

challenges to the jury’s malice finding under a modified version of our legal and factual sufficiency

standards of review. Specifically, “in reviewing the legal sufficiency of evidence to support a finding

that must be proved by clear and convincing evidence, an appellate court must ‘look at all the

evidence in the light most favorable to the finding to determine whether a reasonable trier of fact

could have formed a firm belief or conviction that its finding was true.’” Southwestern Bell Tel. Co.

v. Garza, 164 S.W.3d 607, 609 (Tex. 2004) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).

[A] reviewing court must assume that the fact finder resolved disputed facts in favor
of its finding if a reasonable fact finder could do so. A corollary to this requirement
is that a court should disregard all evidence that a reasonable fact finder could have
disbelieved or found to have been incredible. This does not mean that a court must
disregard all evidence that does not support the finding. Disregarding undisputed
facts that do not support the finding could skew the analysis of whether there is clear
and convincing evidence.

30
Id. at 627.

In a factual sufficiency review of a finding subject to a clear-and-convincing standard

of proof, “a court of appeals must give due consideration to evidence that the fact finder could

reasonably have found to be clear and convincing.” In re J.F.C., 96 S.W.3d at 266. “[T]he inquiry

must be whether the evidence is such that a fact finder could reasonably form a firm belief or

conviction about the truth” of the disputed finding. Id.

A court of appeals should consider whether disputed evidence is such that a
reasonable fact finder could not have resolved that disputed evidence in favor of its
finding. If, in light of the entire record, the disputed evidence that a reasonable fact
finder could not have credited in favor of the finding is so significant that a fact
finder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient. A court of appeals should detail in its opinion why
it has concluded that a reasonable fact finder could not have credited disputed
evidence in favor of the finding.

Id. at 266-267.

To establish malice on the part of Bennett, Reynolds presented essentially three

categories of evidence: (1) the information known to Bennett as the cattle were being penned and

loaded for transport to auction; (2) Bennett’s motives to sell the cattle despite his awareness that he

did not own them; and (3) Bennett’s efforts after the sale to cover-up his acts. We note that the

nature of Bennett’s acts bears not only on the jury’s malice findings, but ultimately on our due

process analysis as well.

31
 Information known to Bennett

Larry Grant and Bennett each testified regarding the circumstances in which the

13 cattle were rounded up and loaded for transport to auction. Grant recounted that when he reported

for work at the Bennett Ranch’s shop on October 11, 2000, Bennett instructed him and another hired

hand, Jerry McBride—whom Bennett had brought from Corsicana—“to grab the gooseneck trailer

and we was going to go looking for some more cows” to haul to auction. The men took the trailer

to the front of the property, near Farm Road 500, and parked in front of the Bonham Corporation-

owned trailer home where Grant was living at the time. They proceeded on foot, with the two hired

hands walking in one direction, Bennett another. Bennett eventually located some cattle, which the

men drove on foot through a field and into a loading pen or corral.

The evidence supporting the jury’s actual damages finding, again, included proof that

the 13 cattle sold were black cows and calves (with the exception of a single smoky calf), that all of

the cows had been branded with the Rafter L on the right hip, and that some of the cows had

additional brands that included the Bay Maintenance MK and a Box W. Grant recounted that the

cattle the men found were black, but “[t]hat’s about all I could tell you” regarding the details of their

appearances. Grant stated that he did not notice any branding on the cattle at that time, perceiving

the “backward J” brands only after he later unloaded the cattle at the auction barn. Nonetheless,

Grant testified that—having acquired familiarity with Bennett’s cattle from working on the Bennett

Ranch for several years and also living there for extended periods—“I had my doubts” that the cattle

belonged to Bennett. Grant also observed that normally Bennett had “all different colors” of cattle

on his ranch, although he admitted that Bennett did have some black cattle.

32
 Grant claimed that he expressed his doubts about the cattle’s ownership to Bennett

and McBride. Over objection, the district court allowed Grant to testify that McBride then angrily

called Bennett a “cattle rustler,” instructing the jury that it could consider the hearsay statement only

as it bore upon the information Bennett possessed at the time.30 Grant added that, “I told [Bennett]

I really didn’t think they belonged to him.” Bennett responded, according to Grant, that “if they

didn’t belong to him he would make it right, just take them to the sale.” Grant testified that all three

men participated in loading the cattle into the trailer.

Bennett acknowledged that the three men had rounded up 13 cattle and that he had

directed Grant to haul them to auction, but differed from Grant’s account in several key details.

According to Bennett, the men drove 15 cattle into the corral, but cut out a black bull and a dark

“curly-horned cow” that he “didn’t recognize” as belonging to him, leaving 13.31 Grant did not recall

cutting out any cattle or anything about a curly-horned cow or a bull.

Bennett maintained that because the men had found these two strays amid his cattle,

he instructed Grant “to be sure there wasn’t anything else in there that was not mine and to sell the

rest.”32 Grant denied that Bennett made such a statement.

30
McBride did not testify. Bennett claimed that he had attempted unsuccessfully to locate
McBride, describing him as a “drifter” whose whereabouts were simply unknown.
31
Bennett testified that the men simply released the two strays and that he made no effort
to contact neighbors or others regarding the strays. Bennett explained that he was in a hurry to leave
and because he had assumed the cows would find their way home by whatever means they had
entered the ranch. Bennett stated that he never saw those cows again.
32
He added that McBride had “never helped us with the cattle before” and had no knowledge
about the kind of cattle Bennett owned.

33
 Bennett denied that McBride had made the “cattle rustler” remark. Over

objection—and with the limiting instruction that the jury could consider it only for the purpose of

showing the information known to Bennett—the district court permitted Bennett to testify about a

subsequent statement in which McBride, according to Bennett, told him that McBride “remembered

that I told Larry to cut out anything that wasn’t mine and to sell the rest.”

Bennett was unsure whether he had directly participated in loading the cattle into the

trailer—he claimed he “was in a hurry that day to go to Corsicana” and, with McBride, left as soon

as he could—but did not deny that it was “possible” that he helped load the cattle. During cross-

examination, Bennett was pressed as to why the men would go to the trouble of loading the

cattle—the cows weighed roughly 1,000 pounds each—if he had harbored some doubts about their

ownership and anticipated that Grant might have to extract some from the trailer. To this, Bennett

responded that “I don’t know” whether he had told Grant to examine the cattle before or after they

had already been loaded into the trailer, but maintained that “[i]f they weren’t mine, I sure would”

want him to unload the cattle.

Bennett testified, consistent with Grant, that he owned different colors of cattle and

that some of his cattle were black. He explained that he had not branded his cattle in “[s]everal

years” and did not believe he had ever branded the cattle he ran in San Saba County, but that most

of the cattle he would purchase from others would have brands already on them. Bennett testified

that he had cut out the black bull and curly-horned cow because, “I didn’t recognize those two as

being mine, so I wanted to be sure and cut them,” adding that he “believe[d] the bull wasn’t mine”

because “[h]e looked different” than some black bulls that he owned. When pressed whether he had

34
similarly been able to get a good look at the other 13 cattle and their brands, however, Bennett

responded, “Sir, my eyes been operated on about five times. I don’t have good eyes. I told Larry

[Grant] to look them over and be sure they were all mine.”

Bennett’s motives

On appeal, Reynolds does not contend that there is evidence Bennett knew, at the time

the 13 cattle were penned and loaded, that they belonged to Reynolds, as opposed to merely knowing

that they did not belong to him.33 The jury nonetheless could reasonably have relied on evidence of

Bennett’s dispute with Reynolds regarding the fence, along with other evidence, in finding that

Bennett had broader motives to sell the cattle despite an awareness that they did not belong to him.

Bennett claimed that the Bonham Corporation spent thousands of dollars tearing

down and rebuilding the barbed-wire fence dividing the Bennett Ranch and the Locker property.

Bennett testified that the new fencing had between five and as many as nine strands, and cost the

corporation an average of $3 per foot. Further, unlike the many other area property owners who

relied on the Colorado River alone to confine cattle, the corporation had constructed a fence along

the river, which ran along what witnesses termed the “high bank.” Monty Carlisle, who worked for

33
The evidence was undisputed that when attempting to locate his missing cattle during the
fall of 2000, Reynolds was never able to make contact with Bennett and had no contact until mid-
December, when Reynolds was served with Bennett’s small claims court suit. Nor does Reynolds
suggest there is evidence that Bennett knew at the time that the Rafter L brand was registered to
Reynolds.

35
his father’s cattle operation on a lease across the Colorado from the Bennett Ranch, described this

fence along the river as “a new fence, a tall fence,” with two or more gates.34

Mr. Carlisle testified concerning an incident in 2000 in which some of his father’s

cattle came onto the Bennett Ranch. Like other witnesses, Carlisle recalled that during that year,

“the river was real low. It was dry and [we were] having a lot of trouble with cattle. There wasn’t

any running water, so they’d cross at the shoal.” During this dry period, he saw some of the Carlisle

cattle cross the Colorado onto an area of the Bennett Ranch below the fenced high bank. Carlisle,

along with Brad Barnett, rode after the cattle on horseback, crossed the river at a rock shoal, and

“went into those cattle to get them back.” As they “were getting around the cattle,” the men saw

some people working on “an irrigation pump pad they were building.” According to Carlisle, “I

rode down there [on] horseback and told them what we were doing, why we were over

there.” Bennett, Carlisle testified, introduced himself (the two hadn’t previously met), and a

conversation ensued. Carlisle recounted that Bennett informed him that he owned the property, that

“[h]e was self-made, and he was worth quite a bit of money.” Bennett, Carlisle added, also stated

that he didn’t trust people.

Then, Carlisle continued, Bennett “asked me how I was going to get my cattle back

across.” Carlisle “told him we had to go back upriver quite a ways to a rock shoal, and then we

could cross the river back over onto our property” because “at the point where those cattle were, the

bank’s too steep to do so.” Bennett, according to Carlisle, offered to open his gates to let him and

34
These gates were periodically left open, and it was through one of them that Reynolds
testified his cattle had been able to enter the Bennett Ranch.

36
Barnett drive the cattle through the Bennett Ranch to short-cut back to the shoal. Carlisle agreed.

However, Carlisle testified:

And when we drove our cattle into his place and went just a little ways up there, at
that time, he come up in his pickup and scattered the cattle and told us that the game
had changed, that he had—was going to hold us and the cattle until that man who
owned the property across the river—which was where we’re at—would agree to
build a fence like he’d built on his side.

Carlisle responded to Bennett that his father owned the cattle, and a man from Louisiana owned the

land, “so it wasn’t my deal.” Carlisle stated that he offered to provide Bennett the phone number

for his father or the landowner, “but there was nothing that I could do and I wasn’t staying. I said

you might hold the cattle, but you won’t hold me.” Carlisle testified that he and Barnett left, and that

he thereafter called the Mills County and San Saba County sheriffs’ departments. According to

Carlisle, they were instructed by the justice of the peace to meet him at the Bennett Ranch gate on

Farm Road 500, where they were allowed to enter and recover the cattle.

Bennett admitted remembering one day when Monty Carlisle and some of his

cowboys rode up on horseback while he was working on the irrigation pump and that “[h]e said he

was looking for cattle.” Bennett recounted that he hadn’t met the men previously and didn’t know

whether they actually owned the cattle they claimed. Although professing not to remember all of

the details of the encounter—Bennett noted that “[i]t’s been several years . . . and there were cattle

in and out of that place many, many times”—Bennett recalled seeing some cattle on the Bennett

Ranch that did not belong to him, although he could not remember whether he had noticed the cattle

before or after the men rode up. Bennett stated that he called the justice of the peace “to get it

37
straighten[ed] out and be sure whose they were and get them to the right person, get them off my

place.” Bennett was sure he told Carlisle and Barnett that he wanted the cattle to remain there until

the justice of peace arrived. Bennett emphatically denied that he had locked the men in the Bennett

Ranch and threatened to hold them, terming Carlisle’s contrary testimony “a lie.”

When asked whether it made him “real angry when somebody has cattle on your

ranch,” Bennett acknowledged, “Well, I wouldn’t like it. But I mean, it doesn’t make me real angry,

no; but I’m not crazy about anybody else’s cattle on my place.” He professed not to be aware of the

open range law governing San Saba County.

On the other hand, there was evidence that Bennett had cooperated with R. C.

Edmondson, who owned property along the Colorado between the Bennett Ranch and the Locker

property, when Edmondson’s cattle had gotten loose and entered the Bennett Ranch.

Mr. Edmondson testified that when one of his bulls and some cattle had gone onto the Bennett

Ranch, “Mr. Tom” had called him, they “set up a time,” “he and I went over, and he helped round

them up.” Mr. Edmondson added that Bennett was a good neighbor and “[w]e like him.”

Bennett’s attempts to cover-up

In addition to the foregoing evidence of pre-sale events probative of Bennett’s

awareness and intent, Reynolds presented evidence of numerous post-sale acts by Bennett to avoid

responsibility for selling any cattle belonging to Reynolds. Evidence of post-act attempts by

tortfeasors to cover-up or avoid responsibility for their acts may imply a consciousness that their acts

were intentional or willful, and not a mere mistake or accident. See Transmission Exch. Inc. v. Long,

821 S.W.2d 265, 273 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (jury finding of willful

38
misrepresentation was supported by evidence including “when appellants realized that appellee was

willing to pursue his remedies at law, they instituted a cover-up in an attempt to avoid the

consequences of their actions”); Bennett v. Mason, 572 S.W.2d 756, 760-61 (Tex. Civ. App.—Waco

1978, writ ref’d n.r.e.) (post-sale attempts by realtor—Bennett—to “cover up the truth” helped

support finding that he had willfully made a misrepresentation to induce the purchase); cf. King

v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (appellant’s false statements to the media

indicated “consciousness of guilt and an attempt to cover up the crime”); Ross v. State, 154 S.W.3d

804, 812 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (“A defendant’s conduct after the

commission of a crime which indicates a ‘consciousness of guilt’ is admissible to prove that he

committed the offense.”). The rule is particularly applicable in this case. Bennett, in addition to

insisting that all 13 cattle had belonged to him, urged the alternative defense that he, at most, made

an “honest mistake,” emphatically professing before the jury that he had always stood ready and

willing to reimburse the true owner if it was shown that he had in fact sold someone else’s cattle.35

35
Examples include the following exchange between Bennett and his counsel during his
direct examination:

Q: Tom, have you always taken the position that if someone could show you that
you had sold Randy Reynolds[’s] cow or a calf or any combination that you
were ready, willing, and able to pay?

A: I would have made it right anytime. If they would have showed me the
pictures, I would have sat down a round table with anybody and made it right,
yes, sir.

Further, Bennett introduced the following written statement he had given during his criminal

investigation, dated February 2002:

39
 1. Initial accusations against Reynolds

As previously noted, following the January 2001 trial of Bennett’s small claims court

suit against Reynolds, Reynolds mentioned to Bennett that he was missing some cattle and asked if

Bennett had seen them. Bennett acknowledged that Reynolds did not accuse him at this time of

stealing cattle. Bennett’s immediate response was to accuse Reynolds of stealing Bennett’s cattle.

When reporting the alleged theft to the Sheriff, Bennett claimed that the cattle were black, later

testifying that, contrary to other witnesses, “[m]ost of my cows were black.” None of Bennett’s

cattle were subsequently found on the Locker property.

2. Bennett offers to pay for evidence incriminating Reynolds

Later, in August 2001, Hunter Hibler, who had worked for Reynolds several years

earlier, testified that he received a call from Bennett, who was ostensibly interested in purchasing

mesquite firewood that Hibler had been selling. Bennett came to Hibler’s house. According to

Hibler, “We talked about the trouble he and Randy had had with some fence they was trying to get

built or had been built.” During that conversation, Hibler and Bennett agree that Bennett offered

In October 2000, Larry Grant and I rounded up a group of cattle on the Bennett
Ranch in San Saba County. I told Larry to cut out any cattle that were not mine and
take the rest to the sale. I immediately left for Corsicana Texas. If Larry took any
cattle to the sale that were not mine I will gladly pay for them. At this time no one
has given me any proof to show that the cattle were not mine. I will be 65 this year
and I have never been in trouble with the law. If a mistake was made it was an
honest mistake as I did not intend to sell cattle that were not mine.

40
Hibler $2,000 for assistance in implicating Reynolds in the theft of Bennett’s cattle. The precise

nature of Bennett’s offer was disputed.

As Hibler described the $2,000 offer, “That was to try to get me to say that he had

—Randy had took some of his cows out of his pasture.” On cross-examination, Hibler admitted that

Bennett had not asked him to make up facts, but to help him prove that Reynolds had taken some

of his cows. Hibler testified that he declined the offer. Bennett, on the other hand, maintained that

he had offered Hibler $2,000 to “[h]elp me prove it,” that Hibler had agreed to help “[f]ind out about

Randy stealing my cattle,” and that the $2,000 was to be paid only if Hibler succeeded in finding

evidence to convict Reynolds. Bennett explained, “I wasn’t going to give him $2,000 for nothing.”

Hibler testified that, at some point, he inquired with Reynolds about Bennett’s

allegation. Reynolds, according to Hibler, explained that he had merely recovered his own cattle

from the Bennett Ranch. Hibler did not divulge that information to Bennett at the time.

3. Bennett’s response to the existence of the Grant photos

During the evening of October 4, 2001, having learned that Reynolds would be

contacting law enforcement regarding his photographs, Grant testified that he became concerned

about his own role in the cattle sale, began drinking to relieve the tension, and made a series of

phone calls during which he eventually became drunk.36 At 9:22 p.m., he reached Ex Rogers,

described as “[o]ne of Tom’s friends,” because “[b]asically we were friends and I was trying to find

36
Grant also acknowledged the possibility that he had been smoking marijuana during the
calls and that he had prior convictions for marijuana possession in 1993 and 1998.

41
where Tom was at.” Grant and Rogers spoke for three minutes. According to Grant, he told Rogers

“[t]hat I had some pictures and these cows didn’t belong to Tom and I needed to get a hold of Tom.”

Grant’s next call, at 10 p.m., was to Bennett in Corsicana. Bennett answered, and the

men spoke for thirteen minutes. Grant explained that he called Bennett “[b]ecause he said he would

do right with the cows” back in 2000 when Grant had raised concerns about their ownership as the

men were loading them for transport to auction. Grant tried to get Bennett to pay for them. Bennett,

according to Grant, “pretended he didn’t know” anything about the cattle. When Grant mentioned

that he had pictures demonstrating they had been stolen, Bennett responded that “if I had any pictures

give them to whoever wanted them,” including law enforcement. At some point, Grant mentioned

to Bennett that he had pictures and that Bennett could look at them, but “nobody was getting them.”

Bennett, on the other hand, claimed that Grant threatened to blackmail him with the

photos unless Bennett sent money, and that he had responded by refusing the offer and telling Grant

to give the photos to law enforcement or whoever wanted them. Grant denied that he ever offered

to sell the photos to Bennett or anyone else.

After hanging up with Bennett, Grant called Ex Rogers again, at 10:15 p.m. The

phone records indicated a one-minute call, and Grant wasn’t sure if they spoke at that time. At

10:16, Grant called Reynolds, and the two spoke for ten minutes, followed by a second call from

Grant to Reynolds starting at 10:28 and lasting for five minutes. Reynolds recounted that during

these calls or their earlier ones, he had assured Grant that he should cooperate with authorities and

that if he did so, Reynolds would not press charges against him. Both Reynolds and Grant denied

that Grant ever offered to sell Reynolds the photos or that Reynolds ever offered to pay or did pay

42
Grant for the photos. At trial, Bennett pointed to these calls as circumstantial proof that Reynolds

and Grant had conspired against him after Bennett had dismissed Grant’s alleged blackmail attempt.

At 10:45, Grant called Ex Rogers again and spoke for 17 minutes. Rogers testified

that during his conversations with Grant, Grant had stated that he was offering to sell the photos to

Bennett. Grant acknowledged that during his second conversation with Rogers, the men discussed

the prospect of Bennett paying for the pictures, but “[j]ust jokingly,” and that he had no intent to

actually extort money from Bennett.

Two days later, Grant testified, he was contacted by Bennett, and Bennett came to

his home in Coleman.37 According to Grant, Bennett, in contrast to his statements over the

telephone two days earlier, “told me to deny it to the end and nine times out of ten you won’t

have to worry about it.”

In the weeks that followed, Grant claimed that Bennett attempted to contact him

“[t]hirty or 40” times, often through “people who lived around me.” Grant testified that he began

avoiding Bennett.

4. Bennett’s offers of financial assistance to Grant

On or about January 5, 2002, Grant testified that he and his wife were in a serious car

accident. Grant’s sister, Debbie Maxcey, recounted that Grant’s wife was in intensive care. Grant

recalled that Bennett, possibly accompanied by Ex Rogers, came to see him again and offered him

money, stating that “he wanted to help me because I was in a car wreck.” Also, around that time,

37
Roughly an hour to hour-and-a-half trip one-way.

43
Ms. Maxcey recalled, “I started receiving phone calls from Mr. Bennett wanting to get in touch with

my brother.” Ms. Maxcey responded “that it was not a good time, just to leave him alone.” Bennett,

according to Ms. Maxcey, “wanted to help out financially.” Ms. Maxcey stressed that if her brother

needed help, “it would be me or my mother would help him. Just leave him alone right now.”

Nevertheless, Ms. Maxcey maintained, Bennett “continued to call me off and on for probably a

month, calling me two or three times a day at work. He came to my work, which I told him don’t

come back. I told him numerous times not to call me anymore.”

During one of Bennett’s calls, Ms. Maxcey claimed, Bennett stated that “I’ve got a

job for him [Grant]. He said I’ll pay him around [$]4,000” per week. By comparison, evidence of

Grant’s checks from his work at the Bennett Ranch reflected earnings of $1,100 per month.

Ms. Maxcey testified that during what ultimately was Bennett’s last call to her, “he

kept asking me—he said, I know he’s [Grant’s] got a cell phone, and I said okay. And for some odd

reason,” Ms. Maxcey continued, “I gave him my husband’s cell phone number.” Ms. Maxcey

explained that she then called her husband, Mack, informed him that “I’ve given Tom your number;

handle this for me.” Mack agreed to do so.

Bennett testified that—despite his and Ex Rogers’s claims that Grant had tried to

blackmail him with the photos—he had genuinely wanted to help Grant after his accident, further

pointing to various acts of his generosity while Grant worked on the Bennett Ranch.38 Bennett

38
These included paying Grant money when a child was born, selling Grant a car
inexpensively, and loaning Grant’s daughter an ATV for use on the Bennett Ranch. While
acknowledging some of these acts, Grant also described less flattering behavior by Bennett toward
his employees. See infra note 40.

44
denied offering Grant a $4,000 per-week job, stating that he instead merely relayed information

about a potential job opportunity in the Corsicana area with an unspecified salary. Bennett explained

his persistence in attempting to reach Grant as motivated by his desire merely to see the photos,

ascertain whether or not the cattle depicted had belonged to him, and make good on his intention to

rectify any “honest mistake.”

5. “Ex’s” call

Mack Maxcey, Jr., testified that during the first part of 2002, he received a call on his

cell phone from a male who identified himself only as “Ex.” Mr. Maxcey recounted that “primarily

he just wanted to threaten me” with “bodily harm.” Specifically, Mr. Maxcey testified that “he

wanted to have a meeting’ and if there was no meeting to be made, then he suggested some

bodily harm might occur to me. And at the time, he thought I was [Grant].” According to

Mr. Maxcey, he responded that Ex “needed to . . . quit talking and start the bodily harm.” After

“Ex” asked Mr. Maxcey to identify himself, Maxcey testified that “I told him that those that know

me best call me ‘sir.’”

Grant explained that Ex Rogers had been one of his co-workers at the Bennett Ranch

and in Corsicana, who did “[j]ust whatever Mr. Bennett asked him to do.” He described Rogers as

“a Harley rider” who wore “[m]ostly gang member clothes, bandanas, beard, kind of hippie-type

dude” with long hair. (Grant acknowledged that Rogers’s appearance had since changed: by

Bennett’s 2003 criminal trial, Rogers had a bald head, no beard, and walked with a cane). Grant

indicated that he feared Rogers because Rogers “always talked about cutting people from . . . ear bow

to—all the way across” and “how bad he was and how he always tore people up.”

45
 Ex Rogers acknowledged having a phone conversation in which he had attempted to

reach Grant to offer help following Grant’s car wreck because he considered Grant a friend. He

denied that Bennett had anything to do with the call.39 Rogers recounted that he used the cell number

that Grant had previously given him while they were working together. According to Rogers, he

reached “[s]omebody else,” who never identified himself, but “started cussing me.” Rogers denied

making any threats either during the call, terming Maxcey’s contrary assertions a lie. He furthered

denied ever threatening Grant, and that he wouldn’t threaten his friend.

Rogers added that he had been on disability since 1996 and, while he did own a

Harley and would wear some of the Harley regalia, denied he was in a gang, had tattoos, had

ever been arrested, or had ever talked about cutting anyone in a fight. Rogers admitted,

however, that he may have talked to Grant about fights he had been in. He also acknowledged

having been involved in an incident in Mills County where he and Bennett had confronted an

individual who had been claiming an easement through Bonham Corporation land and tearing down

a fence. Rogers insisted that “I was out there to help Mr. Bennett rebuild that fence they had

torn down.” The record is unclear about the precise nature of this encounter, but Rogers

acknowledged that the police were called.

6. Bennett attempts to register the Rafter L brand

Kim Wells, County and District Clerk of San Saba County, testified regarding an

incident—though she could not recall the date or year—in which Bennett had come to her office and

39
He also denied ever having traveled to Coleman to see Grant.

46
sought to register the Rafter L brand as his own. As County Clerk, Ms. Wells’s duties including

maintaining the San Saba County records of brand registrations. Ms. Wells recounted that she

informed Bennett that the brand was registered to Reynolds. Bennett denied that he had ever

attempted to register the Rafter L in his name, suggesting that Ms. Wells had confused an occasion

where he had requested some certified copies of brand records. Ms. Wells, however, maintained that

Bennett had been accompanied by counsel when requesting the certified copies, while Bennett had

been alone when making a separate visit to register the Rafter L.

7. Bennett’s attempts to prove his ownership of the cattle

We have previously reviewed the evidence Bennett presented to the jury that he, not

Reynolds, owned all 13 cattle that he sold. The jury was able to assess the veracity of Bennett’s

interpretations of the cattle and brands shown in Grant’s photos as compared to those of Reynolds

and his witnesses (who included the Bay Maintenance ranch manager and a TSCRA brand

inspector). Further, the jury heard Bennett’s explanations of his enlargements depicting the “Bar-D”

brand and could evaluate the credibility of his claims that the identical features appeared in PX-6

while enlarged images from the original negatives were being shown on an overhead projector in the

courtroom. The jury could rely on this evidence, in turn, in evaluating Bennett’s professions of

“honest mistake” and his willingness to “make it right.”

Conclusion

We hold that the foregoing evidence, viewed in the light most favorable to the jury’s

finding, enabled a reasonable trier of fact to form a firm belief or conviction that Bennett’s harm to

47
Reynolds resulted from malice.40 Regarding the information available to Bennett at the time the

cattle were penned and loaded, the jury reasonably could have resolved the conflicting testimony

between Grant and Bennett in favor of Grant’s version—that Bennett was warned the 13 cattle did

not belong to him and was even accused of being a “cattle rustler.” Further, in the face of Bennett’s

acknowledgments that he had been able to distinguish his own cattle from stray cattle on numerous

occasions—including his claims of having culled out a bull and “curly-horned cow” at the time and,

also in 2000, distinguishing the Carlisle cattle from his own—the jury reasonably could have

disregarded Bennett’s claims that “bad eyesight” prevented him from distinguishing his cattle from

those belonging to others, especially given Bennett’s close proximity to the cattle as they were

penned and loaded. Finally, relying on Grant’s testimony and other evidence of the cattle’s

appearance and branding, the jury reasonably could have concluded that the 13 cattle did, in fact,

look different from Bennett’s cattle. This evidence, at a minimum, could have allowed the jury to

form a firm belief or conviction that Bennett’s conduct in ordering the cattle sold, when viewed

40
In addition to this evidence, we note that the jury heard some testimony by Larry Grant
in the nature of adverse character evidence against Bennett. Grant claimed that, among other things,
Bennett would compel ranch employees to make bets against their paychecks and then would cheat
them to win the bets—including an instance when, according to Grant, Bennett and Grant cheated
a mentally-retarded youth out of $1,500 and split the proceeds. Grant also testified that Bennett
cheated Grant’s 12 year-old daughter on a bet over the length of a water hose, ordered a serial
number ground off of a mobile home to conceal it from the tax assessor, had a two-way mirror in
a Corsicana ranch shed that viewed into a ranch hand’s bedroom, and regularly contrived ways to
deprive departing employees of the amounts owed in their final paychecks. Bennett emphatically
denied these allegations, later terming Grant “the biggest liar [Reynolds] had on here.” The district
court admitted much of this testimony after concluding that Bennett had opened the door by
inquiring of Grant, “Now Tom treated you okay as a worker out there, did he not?” Bennett does
not complain on appeal of the court’s admission of this evidence, and we must consider it to have
been properly before the jury. Nonetheless, we have based our legal and factual sufficiency analyses
of the jury’s malice finding solely on the evidence summarized above.

48
objectively from his standpoint at the time, involved an extreme degree of risk that the cattle

belonged to someone else, that Bennett was actually aware of this risk, did not care, and proceeded

anyway. See Mobil Oil Co., 968 S.W.2d at 921.

We further hold that the evidence was sufficient to enable a reasonable jury to form

a firm belief or conviction that Bennett had desired to sell, or believed that it was substantially

certain that he was selling, cattle belonging to someone else. See Reed Tool Co., 689 S.W.2d at 406.

In addition to the evidence that Bennett was aware that the cattle did not belong to him, the jury

could consider proof of Bennett’s motives to sell the cattle despite that awareness. Specifically, the

jury reasonably could have resolved the conflict between Bennett’s and Monty Carlisle’s versions

of their encounter in favor of Mr. Carlisle’s account. That account, along with the evidence of

Bennett’s behavior toward Reynolds in their fence-related dispute, is probative of a motive to force

neighboring cattle operations and landowners—by legal or extra-legal means—to assume more of

the financial burden of keeping their cattle off the Bennett Ranch.

Further supporting the jury’s finding of specific intent was evidence of Bennett’s

behavior to avoid responsibility as the risk grew that his wrongdoing would be discovered.

See Transmission Exch. Inc., 821 S.W.2d at 273; Bennett, 572 S.W.2d at 760-61; cf. King,

29 S.W.3d at 565; Ross, 154 S.W.3d at 812. The jury reasonably could have resolved conflicts in

the evidence to conclude (1) Bennett was aware that he had sold someone else’s cattle in

October 2000, (2) Bennett deduced from Reynolds’s January 2001 inquiry about his missing cattle

that the cattle must have belonged to Reynolds, (3) Bennett’s immediate response was to deflect

blame by attacking Reynolds in a manner calculated to confuse the issue of the cattle’s ownership,

49
(4) Bennett thereafter offered to pay Hunter Hibler $2,000 to find evidence to convict Reynolds of

cattle theft (though there is no dispute that Bennett didn’t explicitly ask Hibler to make up facts, the

jury reasonably could have drawn that implication in light of other evidence), (5) although initially

feigning ignorance about the cattle sale when Grant called him about the photos, two days later

Bennett urged Grant to “deny it to the end and nine times out of ten you won’t have to worry about

it,” (6) Bennett thereafter persisted in repeatedly attempting to contact Grant directly or through

neighbors or relatives, and Ex Rogers, Bennett’s employee, attempted to threaten Grant if he did not

agree to a meeting, (7) despite his claims that Grant had attempted to blackmail him, Bennett

conveyed an offer of a $4,000 per week job, and (8) Bennett attempted to register the Rafter L brand

as his own. Further, the jury could reasonably have inferred that Bennett’s “enlargements” and trial

testimony were not only false or fabricated, but wholly contrary to Bennett’s professions of having

made a mere “honest mistake” that he was willing to make right once his error was shown to him.

As Reynolds’s counsel inquired of Bennett, as Bennett persisted in defending his enlargements and

his interpretations of Grant’s photos, “It’d be pretty hard to convince you to pay Randy any money

[for the cattle], wouldn’t it?”

We also conclude that considering the evidence the jury reasonably could have found

to be clear and convincing, the evidence is such that the jury could reasonably have formed a firm

belief or conviction that Bennett had acted with specific intent or, at a minimum, with gross

negligence. Southwestern Bell Tel. Co., 164 S.W.3d at 609; In re J.F.C., 96 S.W.3d at 266.

In contending otherwise, Bennett asserts that Reynolds “offered no other evidence

as to any ill will or malice of [Bennett] toward [Reynolds]” beyond that concerning the

50
fence dispute; that Bennett “gave a written statement in which he stated that if any of the cattle were

not his, he would pay for them, and that if a mistake was made, it was an honest mistake”; and

that Grant admitted Bennett initially told him to take the photos to law enforcement or

whoever wanted them. Bennett ignores much of the evidence we have surveyed above and urges

us to credit disputed evidence that the jury reasonably could have disregarded. We overrule

Bennett’s third and fourth issues.

Bonham Corporation’s liability

Bonham Corporation remaining sufficiency-of-the-evidence challenges concern

the two alternative liability theories that were submitted against it: (1) reverse alter-ego—whether

the corporate form should be disregarded so as to make the corporation liable for Bennett’s

acts—and (2) agency principles. We need not address Bonham Corporation’s challenges to the

reverse alter-ego finding or submission because we conclude that the jury’s findings against it under

agency principles are supported by sufficient evidence and can alone support its liability.

The district court submitted whether Bonham Corporation, “either individually or

through an agent, convert[ed] . . . cattle owned by Randy Reynolds.” “Agent” was defined as “a

person authorized by another to act for or in place of the other person or corporation and acting

within the scope of his authority.” Further, in the district court’s submission of Bonham

Corporation’s malice, the jury was instructed that in order for Bennett’s malice to be attributable to

Bonham Corporation, it must find, by clear and convincing evidence, that either (1) the corporation

“authorized the doing and the manner of the act,” (2) the agent acting on behalf of Bonham

Corporation was unfit and the corporation was reckless in employing him, (3) “Bennett was

51
employed in a managerial capacity and was acting in the scope of employment,” or (4) Bonham

Corporation or a manager of the corporation ratified or approved the act. Finally, in its submission

of whether Bonham Corporation committed felony theft, the district court instructed the jury:

If conduct constituting theft is performed by an agent acting in behalf of a
corporation or association and within the scope of his office or employment, the
corporation or association is criminally responsible for the theft only if its
commission was authorized, requested, commanded, performed, or recklessly
tolerated by a high managerial agent acting in behalf of the corporation or association
and within the scope of his office or employment.

Because Bonham Corporation advances essentially the same arguments in challenging each of the

jury’s findings on these issues, and because the findings rest on the same evidence, we will consider

the corporation’s challenges to these findings together.

To summarize Bonham Corporation’s arguments, it asserts there is insufficient

evidence to support these findings because the evidence conclusively established (1) it is not in the

cattle business, (2) any cattle operations on the Bennett Ranch are exclusively Bennett’s personal

concern, such that (3) Bennett’s involvement in selling the cattle was beyond the scope of his agency

authority or employment as Bonham Corporation president and not in behalf of the corporation.

It also urges that—somewhat contrary to its concession of the jury’s finding that Bennett

“either individually or through an agent” converted cattle—because Larry Grant was an

“independent contractor,” the corporation cannot be held liable for his acts in delivering and selling

the cattle on Bennett’s behalf.

52
 According to Bennett, Bonham Corporation was in the business of buying and

improving land for later subdivision and resale.41 To that end, Bennett acknowledged, the

corporation’s activities on the Bennett Ranch included building fences, pens, and cattle guards, and

irrigation. Grant testified that his primary job was welding, and that he worked on fences, pens,

cattle guards, and fixing farm and ranch equipment. Bennett, as noted, testified that Bonham

Corporation paid for the tearing down and replacement of the fence giving rise to the dispute with

Reynolds, performing the work with corporation employees, using corporation materials

and equipment. Bennett added that when he later sued Reynolds in small claims court to recover

a share of the fence’s cost, he was intending to act as a representative of the Bonham

Corporation rather than his own behalf.

Bennett distinguished these corporate activities from his cattle-raising on the Bennett

Ranch. Bennett testified that the Bonham Corporation owned no cattle, did not buy or sell cattle,

and did not run a cattle operation. Grant, in fact, agreed that the Bennett Ranch was not a cattle

operation. While there were cattle on the Bennett Ranch, Bennett explained that he owned those

cattle in his own name, and that the corporation had merely permitted him to run those personal

cattle on the property. In evidence was a 1991 corporate resolution of Bennett’s two daughters, as

the corporate shareholders, authorizing Bennett, as president, to “transact business on behalf of the

corporation . . . sign deeds, notes, deeds of trust, mineral deeds, royalty contracts, oil and gas leases,

41
As noted, the Bonham Corporation’s articles of incorporation state its purposes as
“construction and repair of buildings; development of property; and all related contracts permitted
by law.”

53
and all other legal papers and documents in the name of and on behalf of the corporation.” The

resolution added, “Also, he shall be entitled to run his personal livestock on any corporate land.”

When Bennett would periodically sell cattle, he explained, he did so in his own name,

always cashing the check—he did not have a personal bank account—and spending the funds on

cattle purchases, feed, or other personal rather than corporate uses. Bonham Corporation points to

the cattle sale at issue in this case as an illustration of this arrangement—the cattle were sold in

Bennett’s name, the check was payable to him personally, and Bennett cashed the check and claimed

he spent it on cattle, feed, or other personal matters. Consequently, Bonham Corporation reasons,

“[t]he fact that Mr. Bennett sold cattle either belonging to him or [Reynolds] referred to no duty

owing by Mr. Bennett to [Bonham Corporation] and was not done in the discharge of any corporate

duty or responsibility,” and “[t]he record is void of evidence that Mr. Bennett in doing so was acting

in behalf of [Bonham Corporation] or within the scope of his office or employment.” We disagree.

We first note that the evidence conclusively establishes that Bennett was a vice-

principal of Bonham Corporation. A “vice principal” encompasses certain types of corporate

agents who represent the corporation in its corporate capacity, including corporate officers,

“those who have authority to employ, direct, and discharge servants of the master,” and “those to

whom a master has confided the management of the whole of a department or division of his

business.” Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex. 1997) (quoting Fort Worth

Elevators Co. v. Russell, 70 S.W.2d 397, 403 (Tex. 1934)). When describing his authority on the

Bennett Ranch, Bennett stated that “I make the decisions” and “I run that ranch.” His duties, he

explained, included hiring help on behalf of the corporation and telling the hires what to do. Bennett

54
also had authority to write corporate checks, and he regularly signed paychecks. Larry Grant testified

that during his tenure, between 1997 and 2000, no one other than Bennett gave him orders. In

contrast to the acts of ordinary employees for which a corporate principal may by held vicariously

liable through respondeat superior principles, the acts of a vice principal like Bennett within his or

her general authority and in furtherance of the employer’s business are considered to be the acts of

the corporation itself. See GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex. 1999).

Bonham Corporation’s proffered distinction between its corporate functions and

Bennett’s supposedly “personal” acts relating to the cattle sale is illusory at best. The jury heard

Bennett characterize his right to run personal cattle on Bonham Corporation-owned land as a “lease”

or “payment” for “tak[ing] care of [his] daughters’ interests” as corporation president. In addition

to this benefit, Bennett explained that he was allowed to live rent-free in corporation-owned houses

on both the Bennett Ranch and the Corsicana property. Bennett received no monetary salary for his

work as Bonham Corporation president. He did, however, garner some revenues from his cattle sales

(although he insisted that his annual income, net of feed and other costs, had been so minimal that

he had incurred no federal income tax liability—and had paid none—for approximately 20 years).

Bennett emphatically denied that Bonham Corporation obtained any financial benefit from his cattle

operations and rejected the suggestion that its revenues effectively substituted for an

explicit president’s salary.

Assuming a material distinction between Bonham Corporation’s construction of cattle

guards and fencing and Bennett’s “personal” raising of cattle confined by those corporate assets,

such a distinction implies nothing about the corporation’s interests or Bennett’s authority or duties

55
in keeping others’ cattle out of the Bennett Ranch. Bonham Corporation largely overlooks this

central flaw in its argument, instead asserting that Bennett was acting within his personal capacity

because “[t]he great weight and preponderance of the evidence establishes that [Bonham

Corporation] owned no cattle, was not conducting a cattle operation on the San Saba County

property, that the cattle were owned by Mr. Bennett, the cattle were sold in the name of Mr. Bennett,

and the check issued by the cattle auction was in the name of Mr. Bennett.” (Emphasis added). We

have already rejected this contention regarding the evidence of the cattle’s ownership.

Bennett described his role as corporate president as “tak[ing] care of [his] daughters’

interests” in the land. Bennett testified that it was Bonham Corporation’s purpose to improve land

for later resale. To that end, Bennett caused Bonham Corporation to spend thousands of dollars on

fencing—including fencing along the Colorado, a feature many other area ranches lacked—and

constructed cattle guards and pens. If, as Bennett suggests, the corporate fences and cattle guards

had nothing to do with keeping his “personal” cattle confined within the ranch, the jury could

reasonably have inferred that they served a corporate interest in keeping others’ cattle or livestock

off of the land it was attempting to improve. Further supporting this inference was evidence that San

Saba County was governed by an open range law, that stray cattle were fairly common along the

Colorado during dry periods, and the common knowledge of the property damage cattle can cause.

For the same reasons, the jury reasonably could have inferred that Bennett’s removal of stray cattle

from the Bennett Ranch was in behalf of the corporation’s interests and within the scope of his

authority and duties as Bonham Corporation president.

56
 Bennett, in fact, admitted that he was acting within his authority as president of

Bonham Corporation when instructing Grant to haul the 13 cattle to auction:

Q: You had the authority of the president of the James B. Bonham Corporation
to tell Larry Grant to haul these cattle to town, didn’t you?

A: I told Larry Grant, when we cut those two heads out, I told him to take cattle
to town, they belonged to me, and look them over and be sure that there
wasn’t anything else in there that wasn’t mine before he took them. And I
have him on tape saying that.

Q: All right. You had the authority to say that to him?

A: Yes, sir. I had the authority to tell him not to break the law and don’t take
cattle up there that wasn’t mine.

Q: He was a corporate employee, wasn’t he?

A: Yes, sir, at the time.

Q: He was being paid by corporation checks, wasn’t he?

A. Yes, sir.

Q: And you, as president of the corporation, had authority to tell him what to do
on that day, didn’t you?

A: I didn’t tell him to break the law, sir.

Q: I know. But you just told the jury what you said you told him. And you had
the authority to say what you said you told him, didn’t you?

A: Yes, sir.

Bennett further acknowledged that Grant hauled the cattle to auction with “[p]robably a corporation

truck,” pulling a trailer that Bennett claimed he owned personally but that bore a license plate for a

57
vehicle registered to Bonham Corporation.42 Grant added that he had previously taken cattle to

auction at Bennett’s direction ten or twelve times, that Bennett “[a]lways” made the decisions as to

which cattle were to be sold, and that Grant had “[n]ever” made decisions regarding which cattle to

be sold. Finally, we note again that Bennett was personally involved in rounding up the 13 cattle,

did not deny that he helped load the cattle, and directed two Bonham Corporation employees to assist

him during the process.

Even if the jury credited Bennett’s disputed assertion that he instructed Grant not to

sell the cattle illegally, what matters in determining Bonham Corporation’s liability is Bennett’s

general authority and duties to sell the cattle at all on behalf of the corporation. Cf. Celtic Life Ins.

Co. v. Coats, 885 S.W.2d 96, 99 (Tex. 1994) (“In determining a principal’s vicarious liability, the

proper question is not whether the principal authorized the specific wrongful act; if that were the

case, principals would seldom be liable for their agent’s misconduct. Rather, the proper inquiry is

whether the agent was acting within the scope of the agency relationship at the time of

committing the act.”).

Finally, Bonham Corporation suggests that the evidence establishes that Larry

Grant—the ranch hand who hauled the cattle to auction—was acting as an independent contractor

and that this should preclude its liability for selling the cattle. Grant confirmed that the term

“independent contractor” was used by Bennett to describe his arrangement with Bonham

Corporation, but explained that this was Bennett’s term only and that Bennett had the right to control

42
Grant testified that if a vehicle they desired to use didn’t have a current or valid license
plate, Bennett would order him to switch a valid plate from another vehicle. Bennett blamed the tag-
switching practice on Grant alone.

58
the progress of his work and supervised him every day. Grant also noted that he did not own the

welding tools and equipment he used on the Bennett Ranch, that he received a monthly paycheck,

and that he had no other jobs. Further, Grant testified that when selling cattle, Bennett “[a]lways”

made the decisions as to which cattle were to be sold, and that Grant had “[n]ever” made decisions

regarding which cattle to be sold. The jury could have reasonably resolved the conflicting evidence

regarding the scope of Grant’s authority in favor of the jury’s findings.

In sum, legally and factually sufficient evidence supports the jury’s finding that

Bonham Corporation, directly (through Bennett, its vice-principal) or through an agent (Grant),

converted cattle belonging to Reynolds. The evidence, further, was legally and factually sufficient

to enable the jury to form a firm belief or conviction that, at a minimum, (1) Bonham Corporation,

through its vice-principal Bennett, “authorized the doing and the manner of the act”; and

(2) “Bennett was employed in a managerial capacity and was acting in the scope of employment.”

Regarding the latter finding, although acts based purely on personal animosity are not within

the scope of employment, see Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 578-79

(Tex. 2002) (distinguishing defamation to one’s employer for one’s own purposes from defamation

for one’s employer), here the evidence was legally and factually sufficient to enable the jury to form

a firm belief or conviction that Bennett’s acts advanced the objective of “tak[ing] care of [his]

daughters’ interests” as corporate shareholders by recouping corporate fencing costs, ridding their

property of stray cattle, and subsequently covering up the wrongdoing to prevent corporate exposure.

Cf. Long, 821 S.W.2d at 273 (subsequent cover-up was probative of corporation’s willful conduct

through its general manager). For the same reasons, the evidence was legally and factually sufficient

59
to support the jury’s findings that Bonham Corporation committed theft: Grant’s acts in selling the

cattle were in behalf of the corporation and within his scope of employment, and such acts were

authorized, requested, and commanded by Bennett, a high managerial agent acting in behalf of the

corporation and within the scope of his office or employment. We overrule Bonham Corporation’s

fourth, fifth, eighth, ninth, tenth, and eleventh issues.

Constitutional challenges to punitive damages awards

In the final issue brought by both appellants, both Bennett and Bonham Corporation

assert that “the exemplary damages assessed by the jury are excessive and exorbitant.” They rely

exclusively on the due process principles reflected in BMW of N. Am. v. Gore, 517 U.S. 559 (1996),

and its progeny. See, e.g., State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003);

Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 431 (2001); Tony Gullo Motors

I, L.P. v. Chapa, 212 S.W.3d 299, 307-08 (Tex. 2006).43 The appellants emphasize the ratio between

the punitive damages awards and actual damages—187.7:1 for Bonham Corporation and 46.9:1 for

Bennett. Although acknowledging that “the U.S. Supreme Court has not drawn a bright line ratio

which an exemplary damage award cannot exceed,” each appellant points to the Supreme Court’s

observation in State Farm that “few awards exceeding a single digit ratio” will satisfy due process.

43
Although Bennett and Bonham Corporation also invoke the protection for due course of
law as guaranteed by the Article I, Section 19 of the Texas Constitution, they rely only on authorities
under the federal Due Process Clause and do not attempt to advance any basis in the text, history or
purpose of Article I, Section 19 as to why it would be in any material way different from its federal
counterpart. Any argument to that effect is thus waived, and we will address these two protections
together presuming that they are coextensive for purposes of our analysis. See Texas Workers’
Comp. Comm’n v. Patient Advocates, 136 S.W.3d 643, 658 (Tex. 2004); see also Texas Dept. of
Transp. v. Barber, 111 S.W.3d 86, 106 (Tex. 2003).

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State Farm, 538 U.S. at 427. Each argues that Reynolds “suffered only an economic loss

[and] . . . no physical injury, mental anguish, pain and suffering, emotional distress, nor any other

injury that would justify exemplary damages in an amount greater than nine times actual damages.”

We begin our analysis of these contentions by noting their narrow focus. First, the

appellants do not challenge the excessiveness or exorbitancy of the punitive damages awards as a

factual matter—i.e., the sufficiency of the evidence to support the awards under the charge as

submitted to the jury. See Chapa, 212 S.W.3d at 307-08.

Nor do the appellants challenge the form of the punitive damages submission. The

jury was asked to determine the amount of exemplary damages—defined as “an amount that

[the jury] may in [its] discretion award as a penalty or by way of punishment”—that should be

awarded “because the conduct of [Bennett and Bonham Corporation] “was committed with malice.”

The jury was instructed that, in determining any award, it was to consider each of the Kraus factors.

See Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981); Comms. On Pattern Jury

Charges, State Bar of Tex., Texas Pattern Jury Charges General Negligence, Intentional Personal

Torts PJC 8.6 (2006). Thus, we observe, the jury was explicitly required to consider evidence of

“conduct” by each appellant that was not limited solely to the immediate sale of Reynolds’s cattle,

but also extended to evidence of their intent and subsequent attempts to cover-up their acts as it

bore upon “[t]he nature of the wrong,” “[t]he character of the conduct involved,” “[t]he degree

of culpability” of each appellant, “[t]he sense and sensibilities of the parties concerned,” and

“[t]he extent to which such conduct offends a public sense of justice and propriety.”

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 Finally, the jury was explicitly instructed to consider, among the other Kraus factors,

the net worth of each appellant. Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex. 1988). During the

punitive damages phase of trial, Bennett testified that the net worth on Bonham Corporation is

“around $3 million,” yet acknowledged that he had listed the San Saba County property alone for

sale at $3 million, that the corporation owned thousands of acres in other counties, and that the

corporation’s most recent tax return stated over $4 million in assets. Jan Vanderburn of the San Saba

County Tax Appraisal District testified that the market value of the corporation’s San Saba County

property was appraised at over $1.4 million.

Because Bennett and Bonham Corporation do not complain about the form of this

submission, they have waived any complaint based on the procedural protections of the Due Process

Clause. Cf. Phillip Morris USA v. Williams, __ U.S. __, 127 S. Ct. 1057, 1063-65 (2007) (sustaining

preserved complaint that punitive-damages submission enabling jury to consider actual and potential

harm to non-parties violated procedural protections of Due Process Clause); cf. Harris County

v. Smith, 97 S.W.3d 230, 236 (Tex. 2002) (preserved complaint of error in charge that commingled

valid and invalid damages theories).

Instead, Bennett and Bonham Corporation rely solely on what the United States and

Texas Supreme Courts have termed the “substantive” limitations imposed on punitive damages

awards by the Due Process Clause. Campbell, 538 U.S. at 418; Chapa, 212 S.W.3d at 307-08.

These standards reflect recognition by the high courts that “[p]unitive damages may properly be

imposed to further a State’s legitimate interests in punishing unlawful conduct and deterring its

repetition.” Campbell, 538 U.S. at 416 (quoting Gore, 517 U.S. at 568). However, “[w]hile States

62
possess discretion over the imposition of punitive damages, it is well established that there are

procedural and substantive limitations on these awards.” Id. Specifically, “[t]he Due Process Clause

of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments

on a tortfeasor” because “‘elementary notions of fairness enshrined in our constitutional

jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him

to punishment, but also of the severity of the penalty that a State may impose.’” Id. at 416-17

(quoting Gore, 517 U.S. at 574). Thus, “[t]o the extent an award is grossly excessive, it furthers no

legitimate purpose and constitutes an arbitrary deprivation of property.” Id. at 419; see also id. at

417-18 (quoting Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 59 (1991) (O’Connor, J.,

dissenting) (“[T]he point of due process—of the law in general—is to allow citizens to order their

behavior. A State can have no legitimate interest in deliberately making the law so arbitrary that

citizens will be unable to avoid punishment based solely upon bias or whim.”)).

To effectuate the “substantive” aspect of these limitations, the amount of a

punitive damages award is “‘subject to an ultimate federal constitutional check for exorbitancy,’”

Chapa, 212 S.W.3d at 307 (quoting Gaspirini v. Center for Humanities, Inc., 518 U.S. 415, 431 n.12

(1996)), in which three “guideposts” are considered: (1) the nature, or “reprehensibility,” of the

defendant’s conduct, (2) the ratio between exemplary and compensatory damages, and (3) the size

of civil penalties in comparable cases. Campbell, 538 U.S. at 418; Gore, 517 U.S. at 574-575;

Chapa, 212 S.W.3d at 308. We observe that these “guideposts” are not ends in themselves—and

do not merely substitute arbitrary appellate mechanisms for the perceived arbitrariness of juries—but

are intended to illuminate our ultimate due process inquiry. See Johansen v. Combustion Eng’g,

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Inc., 170 F.3d 1320, 1335 (11th Cir. 1999) (describing “the essential legal issue [as] whether the

relevant facts of this case, as indicated by the various BMW factors, constitutionally support the

punitive damage award, i.e., do these facts indicate that [the defendant] had adequate notice that its

conduct might subject it to this punitive damage award”), cert denied, 528 U.S. 921 (1999).44

Whether a punitive damages award passes constitutional muster under this standard is a question of

law that we review de novo. Chapa, 212 S.W.3d at 307.

Reprehensibility

“The most important indicium of the reasonableness of a punitive damages award is

the degree of reprehensibility of the defendant’s conduct.” Campbell, 538 U.S. at 419 (quoting Gore,

517 U.S. at 575). The Supreme Court has further instructed us

to determine the reprehensibility of a defendant by considering whether: the harm
caused was physical as opposed to economic; the tortious conduct evinced an
indifference to or a reckless disregard of the health or safety of others; the target of
the conduct had financial vulnerability; the conduct involved repeated actions or was
an isolated incident; and the harm was the result of intentional malice, trickery, or
deceit, or mere accident.

Id. The existence of any one of these factors weighing in favor of a plaintiff may not be sufficient

to sustain a punitive damages award, and the absence of all renders any award suspect. Id. Further,

44
These standards, in part, compensate for the potential impact of any “evidence that has
little bearing as to the amount of punitive damages that should be awarded” or “[v]ague instructions
[that] do little to aid the decisionmaker in its task of assigning appropriate weight to evidence that
is relevant and evidence that is tangential or only inflammatory.” Campbell, 538 U.S. at 418.

64
 It should be presumed that a plaintiff has been made whole for his injuries by
compensatory damages, so punitive damages should only be awarded if the
defendant’s culpability, after having been paid compensatory damages, is so
reprehensible as to warrant the imposition of further sanctions to achieve punishment
or deterrence.

Id.

We are to consider reprehensibility not only in light of the harm actually caused to

the plaintiff, but harm potentially caused to the plaintiff by the defendant’s acts. See Williams,

127 S. Ct. at 1062, 1063; Campbell, 538 U.S. at 424; see also TXO Prod. Co. v. Alliance Res. Corp.,

509 U.S. 443, 460-62 (1993) (plurality op.). On the other hand, “[a] defendant’s dissimilar acts,

independent from the acts upon which liability was premised, may not serve as the basis for punitive

damages,” as “[d]ue process does not permit courts, in the calculation of punitive damages, to

adjudicate the merits of other parties’ hypothetical claims against a defendant under the guise of a

reprehensibility analysis.” Campbell, 538 U.S. at 422-23 (addressing role of evidence regarding

defendant’s alleged torts to third parties).

Here, as previously discussed, the jury’s findings that the harm to Reynolds resulted

from the malice of both Bennett and Bonham Corporation were supported by evidence not only that

each appellant acted intentionally in converting and committing theft of cattle owned by Reynolds,

but also that each attempted to cover-up the wrongdoing by numerous unlawful means extending to

acts endangering the liberty and safety of Reynolds and others. Although the jury awarded only

$5,327.11 in economic damages under Reynolds’s conversion claim, the evidence supporting the

jury’s malice findings included appellants’ attempts to implicate Reynolds in cattle theft—which

65
potentially could have landed Reynolds in prison45—and a threat of bodily injury intended for Grant.

The evidence also included offers to pay witnesses and fabricated evidence and testimony. These

acts were repeated over time—continuing even into the trial below—and were pervaded with

intentional malice, trickery and deceit. Such actions evince a profound degree of reprehensibility.

Furthermore, the actions of Bennett and Bonham Corporation underlying the jury’s

malice finding go beyond merely implicating Texas’s general policy interest in punishing and

deterring tortious conduct through its civil justice system. They seek to undermine Texas’s civil

justice system itself. Such acts implicate Texas’s more basic and fundamental state interests in

preserving the integrity of its courts and the rule of law.

The ratio

We turn now to the second guidepost, which requires us to compare the disparity

between the punitive damages awards and the actual or potential harm suffered by Reynolds.

Campbell, 538 U.S. at 424; Gore, 517 U.S. at 580; Chapa, 212 S.W.3d at 308. Bennett and Bonham

Corporation emphasize that the jury awarded $5,327.11 in actual damages compared to $1 million

in punitive damages against the corporation (a 187.7:1 ratio) and a $250,000 award against Bennett

45
See Tex. Penal Code Ann. § 31.03(e) (West Supp. 2007) (classifying theft of “less than
10 head of cattle” as a “state jail felony” and theft of “10 or more head of cattle . . . stolen during a
single transaction and having an aggregate value of less than $100,000” as a “felony of the third
degree”), see also id. § 12.34 (West 2003) (“An individual adjudged guilty of a felony of the third
degree shall be punished by imprisonment in the institutional division for any term of not more than
10 years or less than 2 years.”), § 12.35 (West Supp. 2007) (“[A]n individual adjudged guilty of a
state jail felony shall be punished by confinement in a state jail for any term of not more than two
years or less than 180 days.”).

66
(a 46.9:1 ratio). Although we must acknowledge that these ratios appear superficially dramatic, they

overstate, in several ways, the relevant disparities between the awards.

Although the Supreme Court has noted that “few awards exceeding a single-digit

ratio between punitive and compensatory damages, to a significant degree, will satisfy due process,”

the Court has repeatedly declined “to impose a bright-line ratio which a punitive damages award

cannot exceed.” Id. at 425. Significantly, the Court has recognized that “low awards of

compensatory damages may properly support a higher ratio than high compensatory awards, if, for

example, a particularly egregious act has resulted in only a small amount of economic damages.”

Gore, 517 U.S. at 582; see also Campbell, 538 U.S. at 425 (“[R]atios greater than those we have

previously upheld may comport with due process where ‘a particularly egregious act has resulted in

only a small amount of economic damages.’” (quoting Gore, 516 U.S. at 585)). This is such a case.

See Johansen, 170 F.3d at 1338-39 (upholding punitive damage award of 100 times greater than

$43,500 actual damages; pointing to state’s strong interest in deterring conduct in

question—environmental pollution—by corporate tortfeasor and noting that plaintiffs had waived

some compensatory damage claims to obtain injunctive relief); see also Cooper v. Casey, 97 F.3d

914, 919 (7th Cir. 1996) (a “mechanical ratio . . . would not make good sense. The smaller the

compensatory damages, the higher the ratio of punitives to compensatory damages has to be in order

to fulfill the objectives of awarding punitive damages.”); cf. Campbell, 538 U.S. at 426 (holding

$145 million punitive damages award unconstitutional where the compensatory award of $1 million

“was substantial” and constituted “complete compensation”); Williams v. Brown, 352 F.3d 994, 1016

(5th Cir. 2003) (punitive damages ratio analysis “cannot be applied effectively in cases where only

67
[$100] nominal damages have been awarded” and to do so would effectively bar punitive damages

altogether in such cases).

We also observe that because the $5,327.11 compensatory damages consisted solely

of economic damages (the reasonable cash market value of the converted cattle), there is no danger

that the punitive damages awards duplicated any punitive component of the compensatory award.

Cf. Campbell, 538 U.S. at 425 (noting that the $1 million dollar compensatory award was “likely

based on a component that was duplicated in the punitive award”) (citing Restatement (Second) of

Torts § 908, comment c., p. 466 (1977) (“In many cases in which compensatory damages include

an amount for emotional distress, such as humiliation or indignation aroused by the defendant’s act,

there is no clear line of demarcation between punishment and compensation and a verdict for a

specified amount frequently includes elements of both.”)).

Furthermore, we again emphasize that our baseline for comparison is not only

the actual damages in fact awarded by the jury, but also the potential harm likely to have resulted

from the appellants’ conduct. See Williams, 127 S. Ct. at 1062, 1063; Campbell, 538 U.S. at 424;

see also TXO Prod. Co., 509 U.S. at 460-62; Tronzo v. Biomet, 236 F.3d 1342, 1350 (Fed. Cir. 2001)

(reduction in actual damages from $7 million to $250 on appeal, causing increase in punitive

damages ratio from 2.8:1 to 38,000:1, was not a “substantial change in facts” enabling district court

to revisit punitive damages on remand; court pointed to reprehensibility of acts and potential for high

actual damages not reflected in award), cert. denied, 534 U.S. 1035 (2001). The potential harm to

Reynolds from the appellant’s actions, again, included loss of liberty from imprisonment, not to

mention damage to reputation, mental anguish, and attorney’s fees.

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 We need not address how such potential damages, as a general matter, should be

quantified for purposes of the “ratio” guidepost46 because Bennett admitted that such damages from

being wrongfully accused of cattle theft would be substantial. Bennett counterclaimed

against Reynolds for mental anguish, attorney’s fees, and reputational damage arising from what

he contended was “getting railroaded” in the “false” criminal prosecution against him. Bennett

testified that he was seeking $15,000 in attorney’s fees expended in regard to his criminal trial, plus,

“[a]ll the jury would give me” for his mental anguish. When asked whether he’d take $500,000 for

his mental anguish, Bennett responded, “That would be all right, yeah,” and that he wouldn’t feel

bad about taking that amount “after what they put me through.” If this estimate from Bennett’s own

testimony is credited as a baseline of potential harm from the appellants’ actions, the ratios of

punitive to actual damages would be less than 2:1 for Bonham Corporation and less than 0.5:1 for

Bennett. More importantly, Bennett’s testimony is significant as it bears on the notice concerns that

are the ultimate focus of our due process analysis.

Comparable penalties

Under the third guidepost, we compare the punitive damages awards to the

civil penalties that could be imposed for comparable misconduct. See Campbell, 538 U.S. at

428; Gore, 517 U.S. at 583; Tony Gullo Motors, 212 S.W.3d at 308. In Campbell, the Supreme

Court observed that it had also looked to the existence of criminal penalties for comparable conduct,

as the existence of such penalties “does have a bearing on the seriousness with which a State views

46
As Reynolds acknowledges, the jury did not find the amount of “potential” damages, only
actual damages.

69
the wrongful action.” Campbell, 538 U.S. at 428. Here, the conduct at issue entailed third-degree

felony theft, see Tex. Penal Code Ann. § 31.03(e)(5)(A), as well as witness tampering. See id.

§ 36.05 (West 2003). In the criminal context, a person convicted of a third degree felony “shall

be punished by imprisonment . . . for any term of not more than 10 years or less than 2 years.”

Id. § 12.34. Witness tampering is a state jail felony, see id. § 36.05, which is punishable

“by confinement in a state jail for any term of not more than two years or less than 180 days.”

See id. § 12.35.

Although illustrating the seriousness with which a state views the wrongful action,

“[w]hen used to determine the dollar amount of the award, however, the criminal penalty has less

utility.” Campbell, 538 U.S. at 428. Turning to comparable civil penalties, we note the Texas

Legislature’s policy choice to exempt conduct constituting third-degree felony theft from the caps

otherwise applicable to punitive damages awards. See Tex. Civ. Prac. & Rem. Code Ann.

§ 41.008(c)(13) (West Supp. 2007) . In other words, barring contrary constitutional impediments,

the legislature has deemed such conduct so serious as to remove the state statutory limitations

otherwise restricting the amount of punitive damage awards for such conduct.

Further, we again emphasize that this due process guidepost, like the others, is

ultimately an inquiry into whether the defendant has fair notice of the conduct that will subject him

to punishment and the severity of the penalty. Campbell, 538 U.S. at 417 (quoting Gore, 517 U.S.

at 574). Bennett admitted his actual awareness and belief that punitive damages were appropriate

for wrongfully accusing another of cattle theft. Bennett acknowledged that he had sought punitive

damages in his counterclaim (and had even sought them in his small claims court suit against

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Reynolds), that he believed that punitive damages had a role to play in a civil lawsuit, and that he

was requesting the jury to punish Reynolds with punitive damages merely for bringing his lawsuit

and assisting in the criminal prosecution. On the other hand, Bennett testified that “I honestly don’t

know” a specific size of an award with which he wanted the jury to punish Reynolds.

Conclusion regarding punitive damages

Applying the three “guideposts” to this somewhat unusual record before us, we

conclude that the jury’s punitive damages awards against both Bennett and Bonham Corporation do

not violate due process. Specifically, the awards are not grossly excessive or arbitrary relative to

Texas’s legitimate (if not more fundamental or compelling) interests in punishing and deterring their

malicious conduct as to reflect a lack of fair notice that their conduct would subject them to the

penalties the jury ultimately imposed. Campbell, 538 U.S. at 417; Johansen, 170 F.3d at 1335.

Simply put, Texans know better than to steal cattle and then attempt to subvert the legal system to

cover their tracks, and can fairly expect that the legal system can (and must) impose severe penalties

for such acts. We overrule Bennett’s seventh issue and Bonham Corporation’s twelfth issue.

CONCLUSION

We affirm the district court’s judgment in its entirety.

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 __________________________________________

Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Henson

Affirmed

Filed: December 21, 2007

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