COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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ALEJANDRO HERNANDEZ, No. 08-12-00111-CV
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Appellant, Appeal from the
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v. County Court at Law No. 5
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LAURA PORTER, of El Paso County, Texas
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Appellee. (TC# 2011-1222)
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OPINION
Proceeding pro se, Alejandro Hernandez appeals from the trial court’s order granting
El Paso Police Detective Laura Porter’s motion for summary judgment on Hernandez’s claim of
malicious prosecution. In a single issue, Hernandez contends that the trial court erred by granting
summary judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case stems from a family law dispute between Israel Mendoza and his former wife,
Edith Roman, who is now married to Hernandez. Roman obtained an order from the family court
requiring Mendoza to pay increased child support and to reimburse her for certain medical
expenses incurred by her on behalf of one of their children. Shortly after Roman obtained the
court order, she and Hernandez began communicating with Mendoza by email and telephone.
Mendoza asked them to stop calling him. Roman did not, prompting Mendoza to file a report
with the El Paso Police Department.1 According to Mendoza, when he received four successive
calls from a blocked number he recognized—the fourth one a voice mail from Hernandez
threatening him with malicious prosecution for reporting Roman—Mendoza contacted the police.
Detective Laura Porter was assigned to investigate. During her investigation, Porter
spoke to Mendoza on four separate occasions and took two statements. According to Porter,
Mendoza informed her of numerous annoying phone calls made by Hernandez and brought her
documentation in support of his complaint. After her investigation was complete, Porter typed an
affidavit in support of a harassment complaint and presented it to the district attorney. Assistant
District Attorney Kristin Romero reviewed the case and, exercising her discretion, accepted it for
prosecution.
Hernandez was arrested and tried on a single charge of harassment, but was subsequently
acquitted by a jury. Hernandez then sued both Mendoza and Porter for malicious prosecution.
Porter moved for summary judgment on three grounds (1) that she did not initiate or procure
Hernandez’s prosecution and that if she did initiate or procure the prosecution, (2) she did not lack
probable cause to do so, and (3) did not do so maliciously. In the order granting summary
judgment for Porter, the trial court stated its reason for doing so: “The Court having found that
there was probable cause as a matter of law for the issuance of the capias ordering [Hernandez’s
arrest] for the offense of telephone harassment . . . .”
SUMMARY JUDGMENT
We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim, 315
1
Roman was subsequently tried and convicted of harassing Mendoza. This Court upheld her conviction on direct
appeal. See Roman v. State, 2012 WL 5287933, 08-11-00057-CR (Tex.App.--El Paso Oct. 24, 2012, no pet.h.)(not
designated for publication).
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S.W.3d 860, 862 (Tex. 2010). Where, as here, the trial court expressly states in its order the
ground on which it granted summary judgment, we must determine if the trial court was correct in
granting summary judgment on that basis. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623,
625-26 (Tex. 1996). In the interest of judicial economy, we may consider other grounds that were
raised and preserved by the movant but not ruled on by the trial court to decide if they support
summary judgment. Id.; see Haddad v. Wood, 949 S.W.2d 438, 440, 442 (Tex.App.--El Paso
1997, writ denied)(citing Cates as authority permitting consideration of both grounds raised by the
movants in their motion for summary judgment because trial court granted summary judgment
“based upon the Statute of Frauds” without specifying under which of the two grounds raised in
the motion – both based on the Statute of Frauds – judgment was granted).
A party moving for traditional summary judgment must establish that there is no genuine
issue of material fact and that he is entitled to judgment as a matter of law. See TEX.R.CIV.P.
166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). If the
defendant is the party moving for traditional summary judgment, she must negate at least one
element of each of the plaintiff’s theories of recovery or plead and conclusively establish each
element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.
1997). If the defendant establishes her right to summary judgment as a matter of law, the burden
shifts to the plaintiff to present evidence raising a genuine issue of material fact. Centeq Realty,
Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
Evidence raises a genuine issue of material fact if reasonable and fair-minded jurors could
differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire &
Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). In ascertaining whether the plaintiff has
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presented such evidence, we consider all the evidence in the light most favorable to him, crediting
evidence favorable to him if reasonable jurors could, and disregarding evidence contrary to him
unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in
the plaintiff’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
MALICIOUS PROSECUTION
The elements of malicious prosecution are: (1) commencement of a criminal prosecution
against the plaintiff; (2) the defendant’s initiation or procurement of that prosecution; (3)
termination of the prosecution in the plaintiff’s favor; (4) the plaintiff’s innocence; (5) lack of
probable cause to initiate or procure the prosecution; (6) malice in filing the charge; and (7)
damage to the plaintiff. Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 n.3 (Tex. 2006).
Lack of Probable Cause
Porter moved for summary judgment on the ground that if she did initiate or procure
Hernandez’s prosecution, she did not lack probable cause to do so. Porter argues that the trial
court correctly granted summary judgment on this ground because a magistrate found probable
cause to issue a warrant for Hernandez’s arrest.
Probable cause is “the existence of such facts and circumstances as would excite belief in a
reasonable mind, acting on the facts within the knowledge of the prosecutor [complainant], that the
person charged was guilty of the crime for which he was prosecuted.” Richey v. Brookshire
Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997), citing Akin v. Dahl, 661 S.W.2d 917, 921
(Tex.1983). “The probable-cause determination asks whether a reasonable person would believe
that a crime had been committed given the facts as the complainant honestly and reasonably
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believed them to be before the criminal proceedings were instituted.” Richey, 952 S.W.2d at 517
citing Akin, 661 S.W.2d at 920-21. The question is not what the actual facts were, but what the
defendant honestly and reasonably believed the facts to be. Kroger, 216 S.W.3d at 792-93.
Porter has failed to establish her entitlement to summary judgment on the probable cause
element of Hernandez’s claim of malicious prosecution. As summary judgment evidence on
probable cause, Porter relied on the Complaint and Information, her report and arrest warrant
affidavit, and the capias issued by a magistrate. Porter contends on appeal that if she initiated or
procured Hernandez’s prosecution, she did not lack probable cause to do so because the capias
issued by the magistrate is an independent determination of probable cause.
The subsequent probable cause determination of the magistrate who issued the capias is
irrelevant in determining whether a reasonable person would believe that Hernandez harassed
Mendoza given the facts as Porter honestly and reasonably believed them to be before criminal
proceedings were instituted. See French v. French, 385 S.W.3d 61, 66-7 (Tex.App.--Waco 2012,
pet. denied)(concluding that, under Richey, probable cause determinations made by investigating
officer and judge who issued arrest warrant were irrelevant in determining whether reasonable
person would believe plaintiff committed theft given the facts as complainants honestly and
reasonably believed them to be before criminal proceedings were instituted). Since Porter does
not direct our attention to any facts she relies upon to believe Mendoza was harassed by
Hernandez, she has not succeeded in negating the probable cause element of Hernandez’s claim of
malicious prosecution. See Richey, 952 S.W.2d at 517. Accordingly, the trial court erred in
granting summary judgment on this basis. See French, 385 S.W.3d at 67.
Initiation or Procurement of Prosecution
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Although the trial court erred in granting summary judgment on the probable-cause
element, summary judgment is proper nonetheless if it is supported by another ground that was
raised and preserved by Porter but not ruled on by the trial court. See Cincinnati Life, 927 S.W.2d
at 625-26; Haddad, 949 S.W.2d at 440, 442. As noted above, one of the other grounds raised by
Porter was her assertion that she was not responsible for procuring Hernandez’s criminal
prosecution. Porter argues that she did not procure Hernandez’s prosecution because the decision
to prosecute was alone made by Romero, whose decision was not influenced by the erroneous
statement in Porter’s complaint affidavit that Hernandez accused Mendoza of being a homosexual.
To prove malicious prosecution, a plaintiff must establish that the defendant caused his
prosecution by either initiating or procuring it.2 See Richey, 952 S.W.2d at 517; Browning-Ferris
Indus., Inc. v. Lieck, 881 S.W.2d 288, 292 (Tex. 1994). A defendant procures a criminal
prosecution when his actions are enough to cause the prosecution, and but for those actions, the
prosecution would not have occurred. Lieck, 881 S.W.2d at 292. A defendant does not procure a
criminal prosecution when the decision to prosecute is left to the discretion of another, such as a
law enforcement official or a grand jury, unless the defendant knowingly provided false, material
information and the false information caused a criminal prosecution. King v. Graham, 126
S.W.3d 75, 76 (Tex. 2003)(per curiam).
On appeal, Hernandez does not challenge the propriety of summary judgment on this
ground. But in the section of his brief arguing why Porter lacked probable cause to procure his
prosecution, Hernandez contends that Porter knowingly included false, material information in her
2
“A person initiates a criminal prosecution if he makes a formal charge to law enforcement authorities.” Lieck, 881
S.W.2d at 292.
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complaint affidavit.3 Notwithstanding Hernandez’s contention, we conclude that Porter did not
procure Hernandez’s prosecution.
Porter adduced evidence establishing she did not knowingly provide false information in
her complaint affidavit. In her answers to Hernandez’s interrogatories, Porter stated that she
would never knowingly include incorrect information in her complaint affidavits and that, except
for the statement about homosexuality, the facts in the complaint affidavit she prepared against
Hernandez were true and correct to the best of her knowledge. In her affidavit, Porter averred that
although she incorrectly included in her complaint affidavit the statement about homosexuality,
she did so mistakenly and innocently and further that her decision to present the complaint
affidavit against Hernandez was made in good faith and with no malice or ill will against him.
Porter also adduced evidence establishing that Romero’s decision to prosecute Hernandez
was not materially influenced by her erroneous statement. Romero swore in her affidavit that:
The fact that the Complaint Affidavit stated that . . . Hernandez had made
claims that . . . Mendoza was a homosexual was immaterial to my decision to
accept the case for prosecution. My decision was based on the repeated phone
calls made as stated in the Complaint and Information.
Similarly, Joseph Moody, one of the assistant district attorneys who prosecuted Hernandez,
avowed in his affidavit that:
The fact that the Complaint Affidavit stated that . . . Hernandez had made
claims that . . . Mendoza was a homosexual was immaterial to my decision to
continue the case for prosecution. The evidence presented at trial was based on the
repeated phone calls made as stated in the Complaint and Information.
Hernandez asserts that the inconsistency in Porter’s complaint affidavit and her trial
testimony concerning the identity of the individual who labeled Hernandez a homosexual raises a
genuine issue of material fact as to whether Porter knowingly provided false information.
3
Briefing rules are liberally construed to preserve the right to appellate review. See TEX.R.APP.P. 38.9; El Paso Nat.
Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 316 (Tex. 1999).
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Hernandez also asserts that the similarity of Porter’s complaint affidavits in both his and Roman’s
criminal cases raises a genuine issue of material fact as to whether Porter knowingly provided false
information. But we fail to see how this summary-judgment evidence and inferences drawn from
that evidence support Hernandez’s assertions that Porter knowingly provided false, material
information to Romero. Simply put, providing inaccurate or incomplete information will not
result in liability for procuring a criminal prosecution. See Wal-Mart Stores, Inc. v. Rodriguez, 92
S.W.3d 502, 509-11 (Tex. 2002)(noting that rule requiring “knowingly providing false
information” for instigating an arrest in a false-imprisonment context is similar to the rule in a
malicious-prosecution context to procure criminal proceedings). Likewise, Hernandez points to
no evidence that the Romero’s decision to prosecute was based on any information supplied by
Porter that was known then to be false. Accordingly, granting summary judgment on the basis of
procurement would have been proper.
In light of the preceding, we conclude that the trial court did not err in rendering summary
judgment in favor of Porter on Hernandez’s claims for malicious prosecution. Because summary
judgment would have been proper on the basis of procurement, we need not address the malice
ground asserted by Porter in her motion for summary judgment. See TEX.R.APP.P. 47.1. We
overrule Hernandez’s issue.
CONCLUSION
The trial court’s judgment is affirmed.
July 31, 2013
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
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