Latisha McFadden v. Greg Olesky and Rogelio Sanchez

ACCEPTED
03-16-00067-CV
11192321
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/16/2016 5:19:58 PM
JEFFREY D. KYLE
CLERK
03-16-00067-CV
___________________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE TEXAS COURT OF APPEALS AUSTIN, TEXAS
6/17/2016 2:55:00 PM
FOR THE THIRD JUDICIAL DISTRICT
JEFFREY D. KYLE
Clerk
AUSTIN, TEXAS
__________________________________________________________
LATISHA MCFADDEN,
Appellant,
v.
Greg Olesky and Rogelio Sanchez,
Appellee

On Appeal from the 353rd Judicial District Court of Travis County, Texas
Cause No. D-1-GN-04-001222

APPELLANT’S BRIEF

RESPECTFULLY SUBMITTED,

/s/ Donald J. McCarthy

Donald J. McCarthy
S.B. No. 00794256
The Law Office of Donald J. McCarthy
808 W. 11th Street
Austin, Texas 78701
512-585-9151
512-477-1901 (FAX)
dmccarthy@donaldmccarthylaw.com
 IDENTITY OF PARTIES AND COUNSEL

The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case.

Appellant: Latisha McFadden
Represented by: Donald J. McCarthy
Law Office of Donald J. McCarthy
SB #00794256
808 W. 11th Street
Austin, Texas 78701
(512) 585-9151
(512) 477-1901 (FAX)
dmccarthy@donaldmccarthylaw.com

Appellees Greg Olesky and Rogelio Sanchez

Represented by: Henry Gray Laird
S.B.N. 24087054
Andralee Lloyd
CITY OF AUSTIN LAW DEPARTMENT
P.O. BOX 1088
Austin, Texas 78767
(512) 974-1342
(512) 974-2894 (FAX)
gray.laird@austintexas.gov
Andralee.lloyd@austintexas.gov
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has
been sent on June 16, 2016, to Mr. H. Gray Laird, Assistant Austin City Attorney
and Ms. Andralee Lloyd, Assistant Austin City Attorney, counsel for Defendants
via US Postal Service to the address indicated below.

Henry Gray Laird
gray.laird@austintexas.gov
Andralee Lloyd
Andralee.lloyd@austintexas.gov

/s/ Donald J. McCarthy
Donald J. McCarthy
ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE
I certify that Appellant's Brief complies with the Court's word limit and
is 11,207 words.

/s/ Donald J. McCarthy
Donald J. McCarthy
 TABLE OF CONTENTS

INDEX OF AUTHORITIES...................................................................................i-ii

ISSUES PRESENTED.....…....................................................................................iii

STATEMENT OF THE CASE ………………………………………………… iv

STATEMENT OF FACTS………………………………………………………... 1

SUMMARY OF THE ARGUMENTS…………………………………………... 18

ISSUE ONE……………………………………………………………………... 19

ISSUE TWO…………………………………………………………………….. 36

PRAYER………………………………………………………………………… 42
 INDEX OF AUTHORITIES
CASES:

Armstrong v. West Tex. Rig Co., 339 S.W. 69, 74 (Tex. Civ. App. – El Paso 1960,
writ ref’d n.r.e)…………………………………………………………………… 28
Banda v. State, 768 S.W. 2d 294, 296 (Tex. Crim. App. 1989)…………………. 36
Chaplinsky v. New Hampshire, 35 U.S. 568 (1943)…………………………….. 33
Combined Am. Ins. Co. v. Blanton, 353 S.W. 2d 847, 849 (Tex. 1962)…………. 22
De La Paz v. State, 279 S.W. 3d 336, 343 (Tex. Crim. App. 2009)……………. 39
Downer v. Aquamarine Operators, Inc., 701 S.W. 2d 238 (Tex. 1985)……… 28
Glover v. Henry, 749 S.W. 2d 502, 504 (Tex. App. – Eastland 1988), no writ….29
Goggin v. State, 123 S.W. 3d 83, 90 (Tex. App. – Austin 2003), rev. ref’d.... 33-34
Green Tree Financial Corp. v. Garcia, 988 S.W. 2d 776 (Tex. App. – San Antonio
1999), no pet………………………………………………………………… 20-21
Jimmerson v. State, 561 S.W. 3d 5, 7 (Tex. Crim App. 1979)………………… 33
Kroger Tex. L.P. v. Suberu, 215 S.W. 3d 788 (Tex. 2006)…………….. 20. 24, 25
Lee v. Kline, No. 14-98-00268-CV, 200 WL 19227 (Tex. App. – Houston [14th
Dist.] 2000), rev. denied……………………………………………………….. 29
Reinhart v. Young, 906 S.W. 2d 471, 473 (Tex. 1995)………………………... 35
Richey v. Brookshire Grocery Co., 952 S.W. 2d 515, 517-21 (Tex.
1996)…………………………………………………………………….. 22, 24, 25
Santellan v. State, 939 S.W. 2d 155, 169 (Tex. Crim. App. 1997)……………….40
Sears, Roebuck & Co. v. Menegay, 907 S.W. 2d 72, 74 (Tex. App. – Fort Worth
1995), no writ…………………………………………………………………… 39
Texas A & M University v. Chambers, 31 S.W. 3d 780, 783-785 (Tex. App. –
Austin 2000), rev. denied……………………………………….. 26, 28, 29, 31, 35
 STATUTES AND RULES

Tex. R. Evid. 401…………………………………………………………37
Tex. R. Evid. 402…………………………………………………………37
Tex. R. Evid. 403…………………………………………………………
Tex. R. Evid. 404…………………………………………………… 36. 39

OFFICIAL STATE BAR GUIDE
Texas Pattern Jury Charge 6.4………………………………………… 20-21

SECONDARY SOURCES
O’Connor’s Texas Rules of Evidence, p. 178…………………………. 38
 ISSUES PRESENTED

POINT OF ERROR NUMBER ONE:

THE TRIAL COURT COMMITTED ERROR, ABUSED ITS DISCRETION BY
ACTING WITHOUT REFERENCE TO ANY GUIDING RULES OR
PRINCIPLES, AND THE ERROR RESULTED IN HARM TO PLAINTIFF BY
DENIAL OF DUE PROCESS AND DUE COURSE OF LAW BECAUSE THE
COURT EFFECTIVELY COMMENTED UPON THE EVIDENCE BY
INSERTING AS THE FIRST JURY QUESTION AN ISSUE THAT HAS NO
PLACE IN A CHARGE ON MALICIOUS PROSECUTION. AT THE VERY
LEAST, THE COURT REVERSED THE PROPER ORDER OF THE JURY
CHARGE ON MALICIOUS PROSECUTION, THEREBY DENYING
APPELLANT DUE PROCESS AND DUE COURSE OF LAW.

POINT OF ERROR NUMBER TWO:

THE TRIAL COURT COMMITTED ERROR AND ABUSE OF DISCRETION
BY NOT ALLOWING EVIDENCE OF A SIMILAR OR MORE SERIOUS
ALLEGED CRIME COMMITTED BY DEFENDANT ROGELIO SANCHEZ
BEING TREATED WITH A SOLICITOUS DRIVE TO OFFICER SANCHEZ’S
HOME AND A LIGHT INTERNAL DISCIPLINARY ACTION.
 STATEMENT OF THE CASE

This is a suit by Latisha McFadden filed against Austin Police Officers Greg
Olesky, Rogelio Sanchez, Michael Pollard and Tamara Joseph. The suit was filed
for malicious prosecution, assault and false imprisonment. Joseph was not sued for
malicious prosecution. Judge Orlinda Naranjo dismissed the Plaintiff’s claims in
2009. This court in 03-09-99187-CV, McFadden v Olesky, et al, 440 S.W. 3d 646
(Tex-App – Austin 2010) no pet., confirmed the decision in par, and reversed the
decision in part and remanded the malicious prosecution cliam so three Defendants
remained. The case was tried in November of 2015 in Hon. Judge Orlinda
Naranjo’s Court. Judge Naranjo dismissed Defendant Pollard after the Plaintiff
rested and the case continued against Olesky and Sanchez. After a trial before jury
the jury decided in the favor of Olesky and Sanchez, 10-2. Also, final judgment
was rendered on or about January 5, 2016. Appellant timely appealed this matter
on or about February 4, 2016.
 STATEMENT OF FACTS

McFadden. Latisha Yvonne McFadden is the Plaintiff-Appellant in this

case. McFadden is 5’3” 115 pounds. (RR Vol. 4 p. 34: 5 - 24). She was indicted

and tried for assaulting a 6/2” 235 pound officer. She was acquitted. She is a

cardiovascular surgical assistant who specializes in the surgical approach to heart

procedures. (RR Vol. 4 p. 5: 5 to 6:4). She is trained in trauma, pediatric trauma,

neuro, ortho, general, DBS or deep; brain stimulation with Dr. Buchanan

emphasizing Parkinsons disease and Tourettes and other neurological diseases and

in robotics. (RR Vol. 4 p. 6: 7 to 7:5). She has a number of certifications and

degrees. (RR Vol. 4 p. 7: 6-13). She has to go through background checks and

drug tests to work in her field. (RR Vol. 4:8 to 9:5). While out on bond pending

her criminal trial she had to undergo many such tests. (RR Vol. 4 at 9: 2 to 10: 3).

She had to report and do weekly drug tests. Id.

In 2003 she was visiting one evening with her sister and her friend Leslie

Alexander and after midnight they decided to go to a club and listen to music. (RR

Vol. 4 p. 10: 4 to 11: 6). Id. McFadden ordered one beer but was not able to finish

it as she danced a lot and talked with her friends about “girl stuff”. (RR Vol. 4 p.

11: 15 to p. 12: 17). After they left the club shortly after arriving to go back to

their car Ms. McFadden hears a rude comment from a man across the street. (RR

Vol. 4 p. 12: 18 to p. 14: 6). McFadden’s party ultimately came to the parking lot
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where the car was parked. (RR Vol. 4 p. 15:11 to 16: 10). Their friend Hoagy is

standing at the back of their vehicle which is backed in. Id. McFadden talked to

Hoagy but the man across the street continued to make disparaging comments.

(RR Vol. 4 p. 16: 11-15). Ms. McFadden continued to be involved in this friendly

discussion with Hoagy, but the guy across the street continued his harassment.

(RR Vol. 4 p. 16: 11 to p. 18: 5). She curses back at the gentleman across the

street and then Officer Sanchez appeared and said shut your “f…ing ass up.” Id.

She turns to the Officer but when she hears another negative comment from across

the street and while complying with the officer’s request she gives that person the

finger. Id. Sanchez then grabs her arm. Id. She says the officers then “cranked”

her arm up her back and pepper sprayed her. (RR Vol. 4 p. 18:9 to 19:18).

McFadden then testified that as she is on the ground with pepper spray in her eyes

she wants to get her arms loose to rub out the spray. (RR Vol. 4 p. 20: 3-25). She

says she is screaming and while she is on the ground the officers are giving her

conflicting orders. (RR Vol. 4 p. 21: 2 to 23: 19). She was beaten while she was

on the ground and she felt the officers hands moving all over her. (Id).

Alexander. Leslie Alexander testified that McFadden went to 6th street

with her. Ms. Alexander is a 20 year plus employee of the State who is a buyer for

the School for the Blind. She has known Ms. McFadden since they were children,

and they even get together on holidays. (RR Vol. 2 p. 5: 18-25). She said they got

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to the club late, and she ordered an 8 ounce cranberry juice and Latisha ordered a

beer which she did not have time to finish. (RR Vol. 2 p.6: 24 to 7: 5.) Alexander

says her friend Sonya was with them. (RR Vol. 2 p. 7: 6-7). The place closed

shortly after they arrived and they headed to Leslie's car at 6th and IH35. (RR Vol.

2, p. 7: 12-16). Alexander was 7 months pregnant at the time. (RR Vol. 2 p. 7: 8-

11). Alexander agrees that Latisha was talking with Hoagy once they arrived at the

parking lot. (RR Vol. 2 p. 7: 17 to 8: 1). They walked a short distance from the

club to reach the parking lot. (RR Vol. 2 p. 8: 10-15). A lot of people were walking

and a number were also talking in the parking lot. (RR Vol. 2 p. 9: 7-15).

Alexander says she and McFadden heard the voice initially from across the street

as they walked. (RR Vol. 2 p. 9: 19-24). As this shouting from across the street

was still occurring when they reached the parking lot, police officers on bicycles

"came up." (RR Vol. 2 p. 13: 3-11). Alexander says they were near her car which

was in the southwest corner of the parking lot when the officers arrived. (Vol. 2 p.

13: 12-24). Alexander indicated that in addition to Hoagy and Latisha talking,

there was a group of friends talking in the parking lot. (RR Vol. 2 p. 14: 2-12).

Alexander was 3 feet from Latisha at this point. (RR Vol. 2 p. 14: 13-14). Hoagy

and Latisha and he were having a friendly conversation. (RR Vol. 2 p. 14: 15 to 15:

21). The man across the street was now at a distance and no one was paying him

any attention. (RR Vol. 2 p. 15: 24 to p. 16: 25). They had difficulty hearing the

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man clearly because he was facing west. (RR Vol. 2 p. 50: 24 to p. 51:3). Officer

Sanchez told Latisha to shut up and she did. (RR Vol. 2 p. 54: 7-19). Latisha gave

the finger to the guy across the street. (RR Vol. 2 p. 17: 1-5).

When the first officer arrived, he did the following: (a) threw his bike down;

(b) snapped his helmet off and threw it down; (c) grabbed Latisha by her wrist and

twisted her arm to her back, causing her to move forward; and (d) blurted out I am

going to arrest you. (RR Vol. 2 p. 17: 21 to p. 18: 5). Alexander was a couple of

feet away from Latisha when she was grabbed. (RR Vol. 2 p. 19: 9-16). Alexander

acknowledges that the officer yelled they needed to leave before the officer

grabbed Latisha. (RR Vol 2 p. 18: 17-21). She said they did start to leave, (Vol. 2

p. 18:22 to 19: 1). Alexander says Ms. McFadden was trying to leave with her.

(RR Vol. 2 p. 19: 2-8). Alexander said when the officer grabbed Latisha he twisted

her arm up her back so far that it made her lean down. (RR Vol. 2 p. 19: 19-24).

She said that McFadden showed a lot of pain in her face at that point. (RR Vol. 2 p.

19: 25 to 20:3). Prior to being grabbed by the officer, Alexander had observed no

instance of McFadden disobeying any order from the officer. (RR Vol. 2 p. 20: 9-

11). Alexander says that McFadden did not try to resist arrest. (RR Vol. 2 p. 20:

12-14). Early on the officer said that I am going to arrest you. (RR Vol. 2 p. 21: 21

to p. 22: 3). He actually arrested Latisha in front of Alexander's car, (RR Vol. 2 p.

22: 6-8). Sanchez was holding her arm so far up her back, McFadden fell down to

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her knees. (RR Vol. 2 p. 22: 13-17). At this point her hands were above her head.

(RR Vol. 2 p. 23:-23). When the arrest was made and her arm grabbed, McFadden

fell to her knees. (RR Vol. 2 p. 2: 2-7). She said police came from everywhere on

cars, bicycles, cars and even a bus came. (RR Vol. 2 p. 24: 8 to 25: 6). Alexander

says the police drug McFadden across the asphalt parking lot. Id. Police

surrounded her and were kicking her. Id. McFadden kicked too, but it was not at

the officers but instead was an attempt to get relief from the chemical spray. Id and

(RR Vol. 2 p. 58: 21-25). Alexander started to yell that McFadden was pregnant in

an attempt to find something that might make them stop. Id. She said these men

were kicking her and she barely weighed more than 100 pounds. Id (McFadden

testified she weighed 115 pounds). According to Alexander, McFadden's kicks hit

the ground and not the officers. (RR Vol. 2 p. 59: 17-19). McFadden's top came

off and her breasts were exposed. (RR Vol. 2 p. 25: 16-21). No officer attempted

to give her aid. Id. When the officers were kicking McFadden, another officer

slammed Alexander's let in the door. Id. Horses obstructed views from the

sidewalk. Id. Alexander's view after she and Sonya got inside her car became

partially obstructed after the officers drugged McFadden across the parking lot. Id.

They were in a huddle kicking Latisha. Id. She was dragged across the parking lot

with her breasts exposed. (RR Vol. 2 p. 26: 15-23). Officers positioned themselves

in front of Leslie's vehicle in order to obstruct her vision. (RR Vol. 2 p. 27: 6-14).

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The horses were used to block the vision of others. (RR Vol. 2 p. 28: 19-25). The

crowd was screaming and attempting to get the police to stop beating McFadden.

(RR Vol. 2 p. 30: 10-22). While she was handcuffed and in the middle of the

parking lot she was pepper sprayed. (RR Vol. 2 p. 32: 4-10). Ms. McFadden did

kick when she was on her butt with her hands handcuffed above her head. Id. Her

shoes were not on when she was kicking. (Vol. 2 p. 30: 17-18). Alexander e said

they put her on her stomach and hog tied her feet to her hands with handcuffs. (RR

Vol. 2 p. 34: 3-12). While this was occurring, McFadden was screaming out they

are going to kill me. (RR Vol. 2 p. 34: 18-21). Alexander said that McFadden was

hog-tied in the middle of the parking lot for at least 10 minutes while she continued

to yell and scream. (RR Vol. 2 p. 35: 4-23). While she was sitting in the parking lot

on her stomach awaiting transport, no oficer attempted to administer her aid. Id.

Her breasts were fully exposed during this time period. (RR Vol. 2 p. 36: 1-2).

After Ms. McFadden was loaded into the police vehicle, Alexander attempted to

follow the police van but was pulled over by an officer when she exited the parking

lot. She was stopped as a result of the incident. (RR Vol. 2 p. 64: 10-16).

After being stopped, Alexander and Sonya were unable to follow the van so

they drove to the jail, (RR Vol. 2 p. 37: 1-10). They were informed that Ms.

McFadden was not listed. Id. The police van could have gotten to the jail in less

than a minute if it drove through the alley way to the jail and no more than 5

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minutes if they had taken the street and driven around the block. (RR Vol. 2 p. 72:

8-13). Alexander testified that they then called their Pastor, Sterling Lands, for

help. Id. They went to meet Pastor Lands early that morning. (RR Vol. p. 38: 4-9).

Alexander then entered the hospital for 3 1/2 weeks. (RR Vol. 2 p. 38: 17-18). As a

result of the arrest McFadden changed and is very much afraid. (RR Vol. 2 p. 39:

18 to 40: 5).

Officers Testimony and McFadden. Officer Rogelio Sanchez, one of the

Defendant-Appellees in this case, is a 25 year officer with the Police Department.

He has been commended for being in shape on his evaluations. (RR Vol. 3 p. 6

lines 2-7). He is 5'7" tall and weighs 165 pounds. (RR Vol. 3 p. 7 lines 2-7).

Sanchez, the arresting officer, filed a police report that night. (RR Vol. 3 p. 7 lines

23-25). Sanchez testified that he has arrested people who are larger than him one

on one. (RR Vol. 3 p. 8 lines 1-12). He acknowledges that he was physically

superior to Ms. McFadden. Id. Sanchez says that McFadden was arguing with an

individual in the same parking lot about 15 feet away. (RR Vol. 3 p. 8 line 20 to p.

9 line 25). He says there was no one across the street. Id. Sanchez said they never

identified the man in the parking lot who they said was arguing with McFadden.

(RR Vol. 3 p. 10 lines 4-9). Sanchez thought there was some relationship between

McFadden and the person they said she was arguing with in the parking lot. (RR

Vol. 3 p. 10 10-14). Sanchez could not hear what they were saying but they were

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arguing. (RR Vol. 3 p. 10 Lines 10-25). He said it was a verbal disturbance. (RR

Vol. 3 p. 11 lines 1-5). The black male in the parking lot did leave. (RR Vol. 3

page 11 lines 6-7). Sanchez, the first officer to initiate contact and the one who

placed her under arrest, testified that Ms. McFadden did not assault him. (RR Vol.

3 p. 11 lines 22-24). He testified he decided to arrest McFadden because she

flipped the finger at the man she was arguing with (i.e. FOR DISORDERLY

CONDUCT). (RR Vol. 3 p. 12 lines 13-21). Sanchez, however, never obtained the

name of the subject to determine if he was offended by the gesture. (RR Vol. 3 p.

12 lines 12-22). Sanchez admits it is important to gather all of the facts before

deciding what is happening and taking action. (RR Vol. 3 p. 13 lines 19-23).

Sanchez acknowledges that persons have a right to use profane language. (RR Vol.

3 p. 13 line 24 to p. 14 line 5). He further testified that this also includes the right

to make an obscene gesture. Id. As far as people gathering in the parking lot.

Sanchez testified this is not uncommon. (RR Vol. 3 p. 14 lines 6-14). He said that

the parking lot was a public place, (RR Vol. 3 p. 14 lines 15-17). Sanchez admits

they had a right to argue in the parking lot. (RR Vol. 3 p. 15 line 22 to p. 16 line 2).

He said further that they had a right to even argue in the parking lot. Id. Sanchez

acknowledged in his testimony that all important details should be in his report,

and that he mentions nothing about how McFadden was making threats. (RR Vol.

3 p. 16 lines 3-15). He did say in his report he thought it appeared Ms. McFadden

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was trying to provoke a fight. (RR Vol. 3 p. 17 lines 5-12). Sanchez admits that his

order must be lawful. (RR Vol. 3 p. 18 lines 5-8). He then says the order to leave

not being followed was the reason for the arres) (RR Vol. 3 p. 18 lines 9-12).

Sanchez says you should not arrest someone when it simply appears that they are

about to provoke a fight. (RR Vol. 3 p. 19 lines 1-4). He also testified that he could

simply have given Ms. McFadden a citation. (RR Vol. 3 p. 44 lines 13-25).

Sanchez acknowledges he has special training in executing arrests. (RR Vol.

3 p. 19 lines 5-23). He says when someone pulls away like he alleges Ms.

McFadden did, you re-approach and assert yourself. Id. You simply reapproach

and assert your superiority. Id. Sanchez testified that Officer Olesky joined him

after he says McFadden pulled away and they both attempt to put handcuffs on her.

(RR Vol. 3 p. 20 lines 2-24). He says Olesky is a big man, stronger than he is, and

the kind of guy you want on your side in a fight. Id. He says they finally got her to

the ground. (RR Vol. 3 page 21 lines 3-12). He does not know how she was taken

to the ground but his hands were on her when this was done. (RR Vol. 3 p. 21 lines

16-24). He says throughout the struggle McFadden did not hit him with her other

arm. (RR Vol. 3 p. 22 lines 23-24). Sanchez also says McFadden never kicked him.

(RR Vol. 3 p. 23 lines 1-2). Sanchez testified that he had a hold of her arm longer

than any other officer. (Vol. 3 p. 23 lines 9-23). Sanchez acknowledges that the

APD use of force policy says chemical weapons are to be used to result in

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temporary dysfunction. (RR Vol. 3 p. 23 line 13 to p. 24 line 24). He says they

should not be used until other efforts have failed, the suspect is volatile and

resisting and they are unable to control the suspect. Id. He testified that when the

chemical weapon was used, Ms. McFadden was on the ground and her arms were

still being held. (RR Vol. 3 p. 24 line 25 to p. 25 line 2). He did not say in his

report that Olesky was sprayed with a chemical weapon. (RR Vol. 3 p. 25 lines 3-

11). Sanchez admits that APD policy requires that persons subjected to chemical

weapons "as soon as they are under control" be afforded means of cleansing the

chemical agent. (RR Vol. 3 p. 25 lines 15-23). He said the policy was applicable

that evening. (RR Vol. 3 p. 25 lines 21-23). They had an obligation to help her

cleanse the agent once she was under control. (RR Vol. 3 page 25 line 24 to p. 26

line 3). However, he admits that while she was in the parking lot she was provided

no such assistance. (RR Vol. 3 page 26 lines 4-9). He disputes what Alexander

says about Latisha being hog tied and says she was cuffed in a prone position. (RR

Vol. 3 p. 27 lines 2-20). The officers testified that because she was so difficult to

arrest it took a team of officers to subdue her. He says that once one of two arguing

parties leaves there is no longer a problem. (RR Vol. 3 p. 77 lines 3-17).

Sanchez says that officers off duty should be treated the same as citizens.

(RR Vol. 3 p. 29 lines 1-8). The court, however, prevents counsel from asking

10 | P a g e
questions about an off duty incident involving Sanchez, and says it will reconsider

later after reading our brief. (RR Vol. 3 p. 31 line 24).

Sanchez admits his report as the arresting officer has nothing in it

concerning important details such as Joseph or Olesky being struck or kicked in the

stomach though they should be there. (RR Vol. 3 p. 32 lines 2-22). He

acknowledges that his report was provided to the officer who prepared the

probable cause affidavit as a basis for it. Id. He admits that the probable cause

affidavit expressly says the reports were used as a basis for it. (RR Vol. 3 p. 32 line

23 to p. 33 line 1). He also admits meeting with the district attorney, telling them

what is essentially in his report and he actually testified at Ms. McFadden's

criminal trial. (RR Vol. 3 p. 33 lines 2-17). She was found not guilty of the charge.

(RR Vol. 3 p. 34 lines 1-11). Sanchez also testified that there is nothing in his

reports about assisting McFadden to see a nurse or McFadden saying you cannot

arrest me. (RR Vol. 3 p. 44 lines 16-25). He also acknowledges that neither he nor

any of the other officers includes the fact that her blouse was off and she was

exposed to the public in their reports. (RR Vol. 3 p. 57 lines 16-24). However,

Sanchez says he does not feel bad about leaving it out. (RR Vol. 3 p. 58 lines 11-

17). He says that his report was absolutely the basis for the probable cause

affidavit. Id. He met with the district attorney prior to the case being presented to

the grand jury. (RR Vol. 3 p. 59 lines 12-18). And he testified consistent with his

11 | P a g e
report in the criminal case. (RR Vol. 3 p. 59 lines 19-21). Sanchez acknowledges

in his testimony that he has a duty to see that justice is done and not wrongfully

charge people with crimes. (RR Vol. 3 p. 60 lines 17-23). He says people do argue

regularly on 6th street and they ask them to move on. (RR Vol. 3 p. 66 lines 10-

15). He admits there were techniques that would permit them to subdue a resisting

person such as a rear wrist lock. (RR Vol. 3 p. 69 line 8 to p. 70 line 3). Sanchez

testified he never told Ms. McFadden not to give a gesture. (RR Vol. 3 p. 71 lines

6-14).

Sanchez admits that false facts cannot provide a basis for probable cause. Id.

He testified that an officer can only use reasonable force. (RR Vol. 3 p. 35 lines 3-

9). He acknowledges that if unreasonable force is used a citizen can fight back. Id.

He acknowledges officers should follow the law and refrain from giving orders for

people to leave places where they have a right to be. (RR Vol. 3 p. 35 lines 9-24).

Sanchez testified that giving the finger even to an officer is not disorderly conduct.

(RR Vol. 3 p. 47 lines 2-21). And he admits that the presence of law enforcement

officers when there is a loud noise incident, it should be less likely that a breach of

the peace would result. (RR Vol. 3 p. 47 line 22 to p. 48 line 3). He acknowledges

it is appropriate for people to argue. (RR Vol. 3 p.49 lines 2-18). And in regards to

the man he says was involved in the incident, Sanchez acknowledges he knows

nothing about his credibility. (R Vol. 3 p. 50 lines 14-16). Sanchez testified that the

12 | P a g e
statements in his report that she was verbally and physically aggressive equals

disorderly conduct. (RR Vol. 3 p. 88 lines 4-16). He says he never asked Ms

McFadden what was going on prior to arresting her. (RR Vol. 3 p. 101 lines10-

17).

Sanchez admits there were numerous civilian witnesses to the incident, but

the officers declined to get a single name and based their allegations solely on what

the officers said. (RR Vol. 3 p. 38 lines 1-16). Sanchez says he has partnered with

a number of the other officers who were there that evening and that teamwork is

emphasized. (RRVol. 3 p. 38 line 17 to p. 39 line 2). If another officer has a

concern he will help him. (RR Vol. 3 p. 39 lines 3-11). He acknowledges that in an

investigation you identify witnesses to get a full understanding of what happened.

(RR Vol. 3 p. 39 line 22 to p. 40 line 8).

Officer Greg Olesky, another Defendant Appellee in this case, is a 19-year

Officer of the Austin Police Department. He was a 6-year officer at the time of the

incident. He was 6'2" and 235 pounds and admittedly much stronger than Ms.

McFadden. (RR Vol. 5 p. 4 lines 11-13). He testified that he was far superior in

terms of size and strength compared to Ms. McFadden. (RR Vol. 5 lines 23-25).

He testified that the matter started with an argument between McFadden and a

Black Male. (RR Vol. 5 p. 13 lines 4-15). Olesky says while this was occurring the

Black Male was leaving. (RR Vol. 5 p. 14 lines 3-8). He says the man did leave but

13 | P a g e
the problem was that McFadden was still there. (RR Vol. 5 p. 15 lines 3-21). He

admits that the original problem went away. Id. Olesky also says that if the arrest

was because of the finger being used then it had nothing to do with anything about

what she might have said to Sanchez. (RR Vol. 5 p. 63 lines 11-16). After the

contact had been initiated, Olesky testified that Sanchez grabbed one of her arms

and he grabbed the other. (RR Vol. 5 page 31 lines 21-25). Olesky also testified

that he grabbed Ms. McFadden by the hair and took her down. (RR Vol. 5 p. 7 line

23 to p. 8 line 4). According to his report, McFadden kicked at the officers while

she was standing without any reference of contact, while it says she kicked officers

after she had been taken down. (RR Vol. 5 p. 8 line 23 to p. 9 line 5). He testified

that he actually received training in an unspecified self-defense class which

supported this hair take down move, (RR Vol. 5 page 10 lines 3-6). Olesky says

after McFadden was taken to the ground he kicked her with his size 13 shoes and

she was also pepper sprayed. (RR Vol. 5 p. 10 lines 7-23). He says it knocked the

wind out of her so she could be handcuffed. Id. He says it took 5 officers to

subdue her and at least one of the others was about his same size as he was. (RR

Vol. 5 p. 50 line 21 to p. 51 line 4). He says once she was down on the ground she

kicked him and caused a laceration on his leg. (RR Vol. 5 page 35 lines 4-8).

McFadden testified that the shoes she was wearing would slide right off if she

wasn’t walking in them as they were heels with no back. (RR Vol. 4 p. 28 line 14

14 | P a g e
to p. 30 line 2) See Volume 7, Exhibit D-6). He admits that the alleged

instructions to McFadden while she was down may be conflicting. (RR Vol. 5 p.

63 lines 17-23).

Olesky said in his testimony that he did lay across McFadden once while she

was on the ground, putting his body weight on her. (RR Vol. 5 page 55 lines 5-

12). He testified this was after she was pepper sprayed. (RR Vol. 5 page 51 lines

13-14). He acknowledges in his testimony that most people are in pain when they

are pepper sprayed. (RR Vol. 5 page 53 lines 1-5). Olesky testified that Ms.

McFadden was placed in a prone position after she was pepper sprayed. (RR Vol.

5 p. 45 lines 17-19). He testified that at some point he is scratched by her when

she grabs his helmet while her other hand is restrained and with one hand takes the

helmet off and scratches him. (RR Vol. 5 p. 53 line 22 to p. 54 line 19). Later he

says he is not sure if the other hand was indeed restrained and that she did this with

one hand. Id. Olesky testimony appears to acknowledge that it is possible that the

use of pepper spray on someone may cause flailing. (RR Vol. 5 p. 79 lines 5-18).

He does clearly acknowledge that it may cause death, however. (RR Vol. 5 p. 80

lines 10-25). Olesky also admits that once people are pepper sprayed they will

bring their hands to their eyes or will want to do so if their hands are being held.

(RR Vol. 5 p. 81 lines 1-5). He says that they did not have water with them at the

scene to wash McFadden’s eyes out but they could have gone to a nearby

15 | P a g e
establishment and gotten some. (RR Vol. 5 p. 81 line 15 to p. 82 line 14). Olesky

says the Department policy and training say it should be washed out as opposed to

being rubbed out. (RR Vol. 5 p. 83 lines 8-14). McFadden testified that as she

was being held with her hands behind her back and sitting she was drug around

while blinded. (RR Vol. 4p. 23 line to to p. 25 line 10). McFadden’s ankles and

wrists were touching. Id. She said that while this was occurring, someone put

their hands up in her shorts. Id. McFadden said like a pretzel. (RR Vol. 4 p. 25

lines 13-19).

Olesky testified there were many people there but he took down no names of

witnesses. (RR Vol. 5 page 12 lines 1-10). He did acknowledge that people were

hollering at them to leave. Id. Oleskey said there was a camera but did not take

any pictures at the scene such as of Ms. McFadden on the ground, her being stood

up to walk to the van or of the crowd or of other matters that are in dispute. (RR

Vol. 5 page 56 lines 9-23). Olesky testified that he did not see everything and it

could possibly have been a benefit to have an independent witness. (RR Vol. 5 p.

84 lines 5-19).

General. The District Attorney and the Detective on the case were provided

copies of Olesky's reports in order to bring charges against Ms. McFadden. (RR

Vol. 5 page 16 lines 2-13). The probable cause affidavit specifically references the

reports from Sanchez and Olesky as providing a basis for it and it says that Olesky

16 | P a g e
was the victim of the assault. (RR Vol. 7, Plaintiff’s Exhibit 1). In the request for

admissions, Sanchez admitted he met with the District Attorney prior to the grand

jury presentation and that his original report was never changed and was used

throughout the process. (RR Vol. 7). Olesky testified that the indictment in the

criminal case was about assaulting him. (RR Vol. 5 page 57 lines 8-11, 21-23).

Subsequently, he indicates that the charges brought by the District Attorney were

based on his report, injuries and actions with Ms. McFadden. (RR Vol. 5 p. 57

lines 16-20). Further, he admits that he had the power to have the charges

dropped. (RR Vol. 5 p. 57 line 21 to p. 58 line 40) McFadden said it was a very

painful experience to have to prepare for and then observe the criminal court

proceedings. (RR Vol. 4 p. 55 line 4 to p. 58 line 9). She had to go to multiple

pre-trial appearances, watch the officers perform demonstrations in court that were

false and hear the accusations about her during this process. Id. She felt like

Sanchez showed a clear hatred of her and lack of respect for women during this

process. Id.

17 | P a g e
SUMMARY OF THE ARGUMENT

THE TRIAL COURT ERRED EGREGIOUSLY IN SUBMISSION OF
THE JURY CHARGE, INTRODUCING AN ADDITIONAL ELEMENT TO
PLAINTIFF’S CASE, ONE WHICH, AS A REBUTTED PRESUMPTION,
SHOULD HAVE NEVER COME ANYWHERE NEAR THE JURY
CHARGE. WHEN COMBINED WITH OTHER COMMENTS UPON THE
WEIGHT OF THE EVIDENCE WITHIN THE JUROR CHARGE, THE COURT
MADE IT IMPOSSIBLE FOR PLAINTIFF TO PREVAIL, WHEREAS
INDICATIONS ARE THAT USING THE PATTERN JURY CHARGE WOULD
HAVE RESULTED IN A DIFFERENT RESULT – AT LEAST A HUNG
JURY. THE COURT ACTED WITHOUT REFERENCE TO ANY GUIDING
LEGAL PRINCIPLES OR AUTHORITY.
IN ADDITION, THE COURT ABUSED ITS DISCRETION BY RULING
AS INADMISSIBLE, CERTAIN VITAL, RELEVANT AND ADMISSIBLE
EVIDENCE THAT WOULD HAVE HAD A MATERIAL POSITIVE EFFECT
ON PLAINTIFF’S CASE, AND WHICH SHE WAS ENTITLED TO BRING
FORTH BEFORE THE JURY.
THIS CASE MUST BE REVERSED AND REMANDED SO THAT
PLAINTIFF MAY HAVE A FAIR DAY IN COURT ACCORDING TO DUE
COURSE OF LAW.

18 | P a g e
 POINT OF ERROR NUMBER ONE

THE TRIAL COURT COMMITTED ERROR, ABUSED ITS DISCRETION BY
ACTING WITHOUT REFERENCE TO ANY GUIDING RULES OR
PRINCIPLES, AND THE ERROR RESULTED IN HARM TO PLAINTIFF BY
DENIAL OF DUE PROCESS AND DUE COURSE OF LAW BECAUSE THE
COURT EFFECTIVELYCOMMENTED UPON THE EVIDENCE BY
INSERTING AS THE FIRST JURY QUESTION AN ISSUE THAT HAS NO
PLACE IN A CHARGE ON MALICIOUS PROSECUTION. AT THE VERY
LEAST, THE COURT REVERSED THE PROPER ORDER OF THE JURY
CHARGE ON MALICIOUS PROSECUTION, THEREBY DENYING
APPELLANT DUE PROCESS AND DUE COURSE OF LAW.

A. THE PARTIES’ CORRECTION OF THE REPORTER’S RECORD
AND PRESERVATION OF ERROR

As a preliminary matter, Appellees stipulate that Appellant preserved

error with respect to the insertion of the good-faith question to the extent that she

objected, in a timely and plain manner, to the Court’s decision to make good faith

the first jury question, on the grounds that under the Pattern Jury Charge and the

case law, the first jury issue must be about the tort of malicious prosecution, and

she obtained an adverse ruling from the Court on her objection on the record. See

Exhibit 8, Supplemental 1 Clerk’s Record, which is the Stipulation of the Parties to

Correction of Inaccuracies in Reporter’s Record. Tex. R. App. P. 34.6(e)(1).

With respect to an objection to a jury charge, error is preserved at an

informal jury conference, when the objection is timely and plainly made and a

19 | P a g e
ruling obtained. Green Tree Financial Corp. v. Garcia, 988 S.W. 2d 776, 780-82

(Tex. App. – San Antonio 1999), no pet. “Given the liberal precedent on

preservation that has been established by the Texas Supreme Court, we reject

[Appellee’s] formalistic distinction between an ‘informal’ charge conference and a

‘formal’ charge conference.” Green Tree, 988 S.W. 2d at 782.

B. WHAT A CORRECT JURY CHARGE LOOKS LIKE

As reflected in the Texas pattern jury charge, the elements of malicious

prosecution are: (1) A criminal prosecution was commenced against the plaintiff;

(2) The defendant initiated or procured the prosecution; (3) The prosecution was

terminated in the plaintiff’s favor; (4) the plaintiff was innocent of the charge; (5)

the defendant did not have probable cause to initiate or procure the prosecution; (6)

The defendant acted with malice; (7) The plaintiff suffered damages as a result of

the prosecution. Kroger Tex. L.P. v. Suberu, 215 S.W. 3d 788, 792 (Tex. 2006).

There is no “good faith” element, or “absence of good faith” element. The

Court added a seventh element, and put this seventh element as the first jury

question, blocking the jury from doing its duty of deciding the question of

malicious prosecution.

The Texas Pattern Jury Charge on malicious prosecution reads as follows:

“Did Don Davis maliciously prosecute Paul Payne?
20 | P a g e
 “‘Malicious prosecution’ occurs when one person initiates or
procures, with malice, and without probable cause at the time the
prosecution is commenced, the prosecution of an innocent person.

“‘Malice’ means ill will, bad or evil motive, or such gross
indifference to the rights of others as to amount to a willful or wanton
act.

“‘Probable cause’ means the existence of such facts and
circumstances as would excite belief in a person of reasonable mind,
acting on the facts or circumstances within his knowledge at the time
the prosecution was commenced, that the other person was guilty of a
criminal offense. The probable cause determination asks whether a
reasonable person would believe that a crime had been committed
given the facts as the complainant honestly and reasonably believed
them to be before the criminal proceedings were instituted.

“Answer ‘Yes’ or ‘No.’”

Texas Pattern Jury Charges 2014, PJC 6.4

Plaintiff submitted proposed jury instructions based upon the PJC and

adding definitions of “initiates” and “procurement.” These are the

fundamental questions that must be answered. As to probable cause, if the case

has made it way to the jury, then the jury must be instructed that probable cause

means “whether a reasonable person would believe that a crime had been

committed given the facts as the complainant honestly and reasonably believed

them to be before the criminal proceedings were instituted.” Kroger, 215 S.W. 3d

21 | P a g e
at 792-93, citing, inter alia, Richey v. Brookshire Grocery Co., 952 S.W. 2d 515,

517 (Tex. 1996). “Complainant” in this context means of course the party or

parties who ended up as the defendant(s) in the malicious prosecution lawsuit.

C. THE TRIAL COURT COMMITTED ERROR

Appellees requested and the court granted a jury charge that should not have been

given at all, to say nothing of placing it as the first jury question. The court stood

the law on its head.

As above-shown, Jury question number one should deal with the ultimate question

of malicious prosecution, with definitions for “malice” and “probable cause,” in

essentially the same language as The Pattern Jury Charge. In the instant case,

however, the Court asked the jury to first answer this question:

“Do you find from a preponderance of the evidence that any of the
Defendants listed below acted in good faith while in the performance of a
discretionary duty within the scope of his authority when he allegedly
initiated or procured Plaintiff Latisha McFadden’s criminal prosecution
for assault on a peace officer?

“A person commits the offense of ‘assault on a peace officer’ if he or she
intentionally, knowingly, or recklessly causes bodily injury to a person
that he or she knows is a public servant while the public servant is
lawfully discharging an official duty or in retaliation or on account of an
exercise of official power or performance of an official duty as a public
servant.

22 | P a g e
“A ‘discretionary act’ is an act which involves personal deliberation,
decision or judgment.

“An officer or public official acts in ‘good faith’ if a reasonably prudent
officer, under the same or similar circumstances, could have believed that
his conduct was justified based on the information he possessed when the
conduct occurred.

“To ‘initiate’ a criminal prosecution means to make a charge before a
public official or body in such form as to require the official or body to
determine whether process shall or shall not be issued against the accused.

“A person ‘procures’ a criminal prosecution if his actions were enough to
cause the prosecution, and but for his actions the prosecution would not
have occurred. A person does not procure a criminal prosecution when
the decision whether prosecute is left to the discretion of another,
including a law enforcement official or the grand jury, unless the person
fails to fully and fairly disclose all material information known or
knowingly provides false information.

“An official acts within the ‘scope of his authority’ if he is discharging the
duties generally assigned to him.

“Answer ‘Yes’ or ‘No’ for each Defendant:

a. Greg Oleskey

Answer ______

b. Rogelio Sanchez

23 | P a g e
 Answer ______”
CR 236.

The jury question should never have started with a question on “good

faith.” Rather, it should have started with a question on “malicious

prosecution.” Malicious prosecution did not get mentioned until Question

Number Two. CR 237.

The notion of good faith is a rebuttable presumption. The plaintiff must put

forward sufficient evidence to rebut the presumption, and if she does so, the

presumption dissolves completely and defendant must convince a jury that he had

probable cause under the probable cause definition above-cited, from the Pattern

Jury Charge and Kroger. If Defendants lose the presumption of good faith, as they

did in this case, they do not get a jury charge on it.

The controlling case on this is Richey v. Brookshire Grocery Co., 952 S.W.

2d 515 (Tex. 1996). The facts of this case were that Richey pocketed a package of

cigarettes while shopping, bought his groceries paying $51.75, saw a charity bin on

the way out of the grocery store, went back and bought $8.89 worth of baby food

and put in the bin and walked out of the store. When the night manager stopped

him outside and mentioned the cigarettes in Richey’s pocket, Richey offered to pay

for them. The night manager instead reported him to police for shoplifting. A

24 | P a g e
criminal jury took a few minutes to find Richey not guilty. The civil jury in the

malicious prosecution case found in his favor. The Appellate Court overruled in a

split decision, and its ruling was upheld 5-4 by the Supreme Court. The majority

ruled that the grocery store met the probable cause standard of “whether complaint

reasonably believed that the elements of a crime had been committed based on the

information available to the complainant before criminal proceedings

began.” Richey, 952 S.W. 2d at 519-20. The minority opinion argued that Richey

put on sufficient evidence to support the verdict. Id. at 520-21 (Cornyn, J.

dissenting). This is by way of background. For purposes of the case at bar, the

entire court agreed regarding the role of the good-faith presumption.

“There is an initial presumption in malicious prosecution actions that the
defendant acted reasonably and in good faith and had probable cause to
initiate the proceedings. That presumption disappears once a plaintiff
produces evidence that the motives, grounds, beliefs, and other evidence
upon which the defendant acted did not constitute probable cause. The
burden then shifts to the defendant to offer proof of probable cause.”
Id. at 517-18.

The presumption is a presumption of good faith and probable cause. When

evidence sufficient to put into doubt whether defendants had probable cause is

brought forward, the presumption falls away. That is to say, the presumption

of good faith and probable cause fall away. Once they do, the defendant must

offer proof of probable cause. The question of a police officer’s “good faith” is not

25 | P a g e
on the table any longer. The language of the law at this point becomes the much

more neutral “probable cause.” The juror as fact finder does is not forced to say a

police officer did not act in “good faith.” The jury is merely asked if the officer

has probable cause. For the juror, this is a momentous difference. It makes all the

difference in the world, and certainly all the difference to turn a case. Although

the definitions are similar, one phrase is psychologically loaded. By definition it

forces a jury to decide that a police officer acted in bad faith before even

considering the elements of malicious prosecution, rather than simply asking the

jury to decide whether the officer made a bad mistake. This is an immense

hurdle for the Plaintiff to overcome – a hurdle that is completely unnecessary, and

completely illegal. “An instruction that misstates the law cannot be expected to

produce a correct verdict.” Texas A & M University v. Chambers, 31 S.W. 3d 780,

785 (Tex. App. – Austin 2000), rev. denied.

As soon as positive evidence to the contrary is produced, a presumption is

rebutted. Chambers, 31 S.W. 3d at 784.

Appellant put on sufficient evidence to rebut the presumption and make

probable cause a fact issue upon which Appellees had the burden of proof, as

per Richey. The Trial Court denied Appellees’ Motion for a Directed Verdict,

thereby ruling as a matter of law that the presumption was rebutted. Exhibit 1,

Final Judgment, CR 260-61.
26 | P a g e
 Had it not denied the motion for directed verdict, the Trial Court would have

had to grant Appellees’ Motion for Directed Verdict, which Motion the Trial Court

denied. Had it not, Appellees would have been entitled to a judgment as a matter of

law. But the Trial Court did not grant dismissal as a matter of law, but instead sent

the case to the jury to decide as fact finder. Exhibit 1. This, by itself, shows that

the presumption was overcome and “good faith” should never have been

mentioned in any part of the jury questions or the Court’s Charge as a whole.

The syllogism is a very simple one:

1. Without sufficient rebutting evidence to create a jury issue regarding probable
cause, Appellees would have been entitled to judgment as a matter of law – the
granting of their Motion for a Directed Verdict.
2. Having denied Appellees a judgment as a matter of law, the Trial Court’s duty
was to present a correct series of jury questions covering the elements of malicious
prosecution, as per the Pattern Jury Charges or something similar.
3. “Good faith” or lack thereof is not one of the elements (jury questions) of
malicious prosecution.
4. Therefore, it was error to give a jury instruction and question on “good faith.”

The Trial Court was, of course, correct in denying the motion for a directed

verdict as a matter of law. The testimony of bystander Leslie Alexander set forth

sufficient evidence to overcome the presumption of good faith. RR Vol. 2, at

13:12 – 17:20. Appellant’s testimony raised evidence to rebut the

presumption. RR Vol. 4 at 12:19 – 18:4. Additionally, the testimony
27 | P a g e
of Appellees was evidence sufficient to overcome the presumption of good

faith. The Statement of Facts just recited is full of admissions from

the Appellee Officers that amounted to competent evidence rebutting the

presumption of good faith.

What the Court did instead was to rule that the presumption had been

overcome. But in contradiction to her own ruling, and in clear legal error,

presented this non-element to the jury as the first question to be answered. This

amounted to a misstatement of the law and therefore a denial of due process and

due course of law. It also amounted to a comment on the evidence, as will be

explained below.

D. STANDARD OF REVIEW – THE COURT ACTED WITHOUT
REFERENCE TO ANY GUIDING RULES OR PRINCIPLES.
Courts enjoy considerable discretion in framing a jury charge. Texas A & M

University v. Chambers, 31 S.W. 3d 780, 783 (Tex. App. – Austin 2000). The

reviewing court may only determine whether the trial court acted without reference

to any guiding rules or principles. Chambers, 31 S.W. 3d at 783, citing Downer v.

AquamarineOperators, Inc., 701 S.W. 2d 238, 241-242 (Tex. 1985).

Still, an instruction must be correct. Id. “A presumption ‘may not properly

be the subject of an instruction to the jury.’” Id. at 783-84, citing, United Founders

Life Ins. Co.v. Carey, 347 S.W. 2d 295, 307 (Tex. Civ. App. – Austin

28 | P a g e
1961), rev’d on other grounds, 36 S.W. 2d 236 (Tex. 1962); Armstrong v. West

Tex. Rig Co., 339 S.W. 69, 74 (Tex. Civ. App. – El Paso 1960,

writ ref’d n.r.e); Glover v. Henry, 749 S.W. 2d 502, 504 (Tex. App. – Eastland

1988, no writ).

“A presumption is an artificial thing, a mere house of cards, which one

moment stands with sufficient force to determine an issue, but at the next, by

reason of the slightest rebutting evidence, topples utterly out of consideration of

the trier of facts.” Id., citing Combined Am. Ins. Co. v. Blanton, 353 S.W. 2d 847,

849 (Tex. 1962). See also Lee v. Kline, No. 14-98-00268-CV, 200 WL 19227, *3

(Tex. App. – Houston [14th Dist.] 2000), rev. denied.

“An artificial thing.”

“Topples utterly out of consideration of the trier of facts.”

Not in the instant case. Only slightly less egregiously than in Chambers,

the Trial Court in the instant case made the good-faith presumption a very real

thing and improperly forced the jury to make it its first – and ultimately only –

consideration. In Chambers, the trial court improperly inserted the actual

presumption into the jury charge. Here, what the Court did was to make a

policeman’s “good faith” a roadblock through which the jury could not pass to get

29 | P a g e
to the question it was supposed to consider. We can see how this occurred in three

ways:

1. By insisting on putting a policemen’s “good faith” at issue as opposed to merely

their reasonableness in determining probable cause, the Court forced the jury to not

simply judge that the police officers were plain wrong, but that they had acted in

bad faith. This is something which the neither the PJC nor Kroger or any authority

requires or allows.

2. We know the jury was unable to find its way past the roadblock because it told

the Court that it could not figure out if the good-faith definition referred to “the

officer’s conduct during the arrest or after the arrest when completing the incident

reports.” CR p. 259. The jurors’ confusion is very understandable. This extra-

legal question on good faith, coming as it did out of thin air, without reference to

any guiding rules or principles, was also unintelligible to the average layperson.

Look please at Question No. 1 in its entirety (CR, p. 236, Exhibit 2). The

first paragraph of the question talks about good faith when the officer initiated or

procured the criminal prosecution. But when read in combination with the

“procures” definition, any layman would be confused because of the language that

reads, “if his actions were enough to cause the prosecution, and but for his actions

the prosecution would not have occurred.” To a laywoman that could seem to refer

30 | P a g e
to the officer’s actions on the street, or making the arrest, but not the decision to

recommend a formal charge against Appellant. But it only gets worse. The fourth

paragraph of Question No. 1 defines “good faith” as being if a reasonably prudent

officer “could have believed that his conduct was justified based on the

information he possessed when the conduct occurred.” “When the conduct

occurred” could mean either the incident on the street, or the arrest, or the decision

to recommend that formal charges be brought. The Court’s reaction to this query

was that the jury had to proceed on the jury charge with no additional

explanation. CR p 259.

3. The overall actions of the Court put the case on par with Chambers.

In Chambers, this Court found that the improper charge probably caused the

rendition of an improper verdict. This was because the charge was an improper

comment on the weight of the evidence. Chambers at 785. It is acknowledged

that the Court in the instant case did not recite the presumption in the jury

charge. However, for some of the same reasons as in Chambers, and additional

reasons, the Court’s extra-legal Question No. 1 also likely led to an improper

judgment.

“Reversal is required if an improper comment on the weight of the evidence

was calculated to cause the rendition of an improper judgment . . . An instruction

that misstates the law cannot be expected to produce a correct verdict.” Id.
31 | P a g e
Looked at as a whole, Question No. 1 was clearly an improper comment on the

weight of the evidence.

Firstly, we have the mere fact that good faith was brought up at all. This has

no legal precedent in this State. Appellant has checked and double-checked on

both Westlaw and Lexis and finds no reported case where “good faith” is any part

of the Jury Charge on malicious prosecution. None. The inclusion of this good-

faith charge, which never had any place in a jury charge on malicious prosecution,

was a comment on the weight of the evidence.

Secondly, the Court inserted a definition of “assault on a peace officer” as

the second paragraph of Question No. 1. Such definition was in no way necessary

even under the terms of the Court’s eccentric Question No. 1. Its inclusion

amounted to a comment upon the weight of the evidence. It is a particularly heavy

comment when the Court ignores the qualifying language of Tex. Pen. C §9.31,

which allows citizens self-defense against an officer in instances of alleged Class C

misdemeanors and police excessive force. This, even though Officer Sanchez

agreed that the law states that a citizen can fight back if a police officer uses

excessive force. RR Vol 3, p 35: 6-9

Thirdly, when Appellant, having been overruled on her objection to the

order in which the Jury Questions would proceed, attempted then to inform the

32 | P a g e
jury of what a “good faith police officer” should know regarding the alleged

underlying offense that started the entire police fracas, she was refused by the

Court. The Statement of Facts makes clear that the initial reason for the police

stop of Latisha McFadden was a Class C Disorderly Conduct. But the S.O.F. also

shows strong evidence that such Class C Disorderly Conduct was never committed

by Appellant.

And the law shows that no reasonably prudent officer could have been

justified in taking the violent action they did against Ms. McFadden because her

conduct never even approached conduct sufficiently disorderly to be considered

disorderly conduct.

Appellant duly filed a Supplemental Jury-Charge Requests to put this good-

faith subterfuge in context. The law requires that when a requested jury instruction

is denied, Appellant should have filed a written proposed charge, which was done

in this case. CR 229-31.

Appellant asked the Court to include in its Question No. 1 each or any of

three explanations of the parameters of disorderly conduct – explanations clearly

admonitory toward law enforcement. These were:

“For words or gestures to amount to disorderly conduct, or a breach of the
peace, they must, by their very utterance tend to incite an immediate breach
of the peace.” Jimmerson v. State, 561 S.W. 3d 5, 7 (Tex. Crim. App. 1979)

33 | P a g e
 (Onion, J. for a unanimous Court), citing Chaplinsky v. New Hampshire, 35
U.S. 568 (1943)
“Whether particular words constitute fighting words is a question of
fact. This requires careful consideration of the actual circumstances
surrounding the expression, asking whether the expression is directed to
inciting or producing imminent lawless action and is likely to incite or
produce such action.” Goggin v. State, 123 S.W. 3d 82, 90 (Tex. App. –
Austin 2003, rev. ref’d), citing Texas v. Johnson, 491 U.S. 397 (1989)
“Language that is merely harsh and insulting does not generally rise to the
level of fighting words; derisive or annoying words only rise to such level
when they plainly tend to excite the addressee to a breach of the peace.”
Goggin v. State, 123 S.W. 3d 83, 90 (Tex. App. – Austin 2003, rev. ref’d).

After an exchange of arguments, trial Court denied this motion to include

Texas law pertaining to disorderly conduct. This law likely could have changed

some jurors’ minds by showing them that the police cannot just call a profanity or

profane gesture disorderly conduct unless it likely to incite imminent lawlessness

and immediate breach of the peace. RR Vol. 6 at 7:5 to 10:7.

Fourthly, the Third Court of Appeals is more inclined to remand a case for

improper comment on the weight of the evidence if it is a close case. The

Statement of Facts to this Brief show this was a close case, vigorously contested,

with many pieces of evidence that might have cause a jury to find malicious

prosecution had it not been stopped by the good-faith roadblock.

The jury barely brought in a decision. Two jurors dissented. CR, p. 243.

34 | P a g e
 The undersigned believes Appellees will agree the jury deliberated close to

five hours over the single question of good faith, the question designed to through

it off course.

“A superfluous instruction is more likely to improperly influence a jury in a

close case.” Chambers at 785, citing Reinhart v. Young, 906 S.W. 2d 471, 473

(Tex. 1995).

CONCLUSION and PRAYER

Appellant pray that this Honorable Court reverse and remand the instant case

with instructions to the Trial Court to follow PJC 6.4, except in case of

exceptional, unlikely circumstances and in which case it make findings of fact and

law supporting deviation from PJC 6.4.

35 | P a g e
POINT OF ERROR NUMBER TWO. THE TRIAL COURT COMMITTEE
ERROR AND ABUSE OF DISCRETION BY NOT ALLOWING EVIDENCE
OF A SIMILAR OR MORE SERIOUS ALLEGED CRIME COMMITTED
BY DEFENDANT ROGELIO SANCHEZ BEING TREATED WITH A
SOLICITOUS DRIVE TO OFFICER SANCHEZ’S HOME AND A LIGHT
INTERNAL DISCIPLINARY ACTION.
A. STANDARD OF REVIEW

In a civil proceeding, the standard of review on evidentiary rulings is abuse

of discretion. Bay Area Healthcare Grp., Ltd., v. McShane, 239 S.W. 3d 231,

234 (Tex. 2007). Reversal is warranted only if the error is harmful.” Nissan

Motor Co. v. Armstrong, 145 S.W. 3d 131 144.

The instance involving internal discipline of Rogelio Sanchez in 1999 for

criminal trespass is not a 404(a) question. It is offered for a wholly other

purpose. The purposes enumerated in 404(b) are illustrative, not exclusive.

The 404(b) catalogue, by the same token, is illustrative, not exclusive. Whether

or not it neatly fits one of these categories, an extraneous transaction will be

admissible so long as it logically tends to make the existence of some fact of

consequence more or less probable. Banda v. State, 768 S.W. 2d 294, 296

(Tex. Crim. App. 1989) (emph. added).

In this case the matter is offered to show that the APD was capable and

frequently did approach similar or far worse situations with a much lower level

of force, amounting to zero. Because the two situations – Officer Sanchez’s

36 | P a g e
alleged misdemeanors and Ms. McFadden’s – this is a factor to be considered in

favor of admitting the Sanchez information. Secondly, the two instances have

fundamental features in common. Sanchez was alleged by the owner of the

Tavern pub in Austin to have been involved in a “disturbance” which is not

explained in the report. Meanwhile, in Sanchez’s post-hoc justification for his

treatment of plaintiff he also says that Ms. McFadden was on the verge of

creating a disturbance. RR Vol. 3 at 5:22-24.

This evidentiary issue is actually a classic Rule 402 case.

Relevant evidence” means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.

Plaintiff’s Exhibit 36, the discipline of Rogelio Sanchez, shows that where a

crime clearly was committed (criminal trespass) and another possibly

committed (disorderly conduct – “involved in a disturbance”), the APD reacted

by taking Officer Sanchez home, not jail, and no charges were brought.

Rule 401 defines relevance and 402 says relevant evidence generally is

admissible. There is a two-part test:

37 | P a g e
 1. “Materiality” inquires whether there is an rational relationship or

pertinence of the proffered evidence to any provable or controlling fact

issue in dispute.

2. Then, relevancy inquires whether the proffered evidence has probative

value tending to establish the presence or absence, truth or falsity, of a

fact.

O’Connor’s Texas Rules of Evidence, p. 178

What counts is the probative value tending to establish the presence or

absence, truth or falsity of a fact, which fact has a rational relationship to the

controlling fact in dispute. The controlling fact in dispute is whether there was a

malicious prosecution against Latisha McFadden or conspiracy to maliciously

prosecute her. Plaintiff’s theory is that Defendants motive to maliciously

prosecute plaintiff was to cover up excessive use of force, irrespective of any

alleged disorderly conduct. One piece of probative evidence that this was

excessive force was the fact of the gentle, solicitous way in which Rogelio Sanchez

was treated when he committed a “disturbance” or disorderly conduct, and

allegedly committed the Class B offense of criminal trespass.

38 | P a g e
 The degree of similarity between the two events or transactions does not

need to be high. Sears, Roebuck & Co. v. Menegay, 9-7 S.W. 2d 72, 74 (Tex. App.

– fort Worth 1995, no writ).

As mentioned the 404(b) list is not exhaustive, by its own terms. What is

required is that the proponent of the evidence “must be able to explain to the trial

court the logical and legal rationales that support its admission on a basis other

than bad character” or propensity purpose. De La Paz v. State, 279 S.W. 3d 336,

343 (Tex. Crim. App. 2009)

The test is as follows:

1. The inherent probative value of the evidence (very high in the instant case to

show disturbances can be diffused without any resort to arrest, much less violent,

unlawful arrest);

2. The similarity of the instances (both were lowest-level misdemeanors, occurring

close in time, both involved what were described as “disturbances” and in both

cases the actor reportedly used strong, foul language.)

3. Strength of the evidence of the extraneous (Sanchez) offense (strong).

4. Nature of the extraneous conduct and its potential for impressing the jury in

irrational ways (low). Limiting instruction and responsible jurors understand the

real issues in the case.

39 | P a g e
5. Trial time necessary to develop the evidence (minimal).

6. Availability of other evidence that tends to accomplish the same purpose (there

is no other such evidence in possession of plaintiff).

7. Strength of that other evidence that tends to accomplish the same purpose (such

other evidence does not exist, at least not in Plaintiff’s possession).

8. Is the purpose served by admission of the extraneous conduct related to a

disputed issue (YES). The disputed issue is should the police have conducted the

entire procedure, if any was needed, by a much lower level of force, and was the

cover-up of excessive force a motivating factor in the malicious prosecution.

Santellan v. State, 939 S.W. 2d 155, 169 (Tex.
Crim. App. 1997).

The “Santellan score” is extremely high. It was even higher because the

judge ended up inventing a good-faith question. The Court will remember the

question: “Do you find from a preponderance of the evidence that any of the

Defendants listed below acted in good faith while in the performance of a

discretionary duty within the scope of his authority when he allegedly initiated or

procured Plaintiff Latisha McFadden’s criminal prosecution for assault on a peace

officer.”

40 | P a g e
 Even with this prejudicial comment upon the weight of the evidence, had the

jury heard the evidence on how the Rogelio Sanchez alleged criminal trespass and

disorderly conduct were handled, the jury would have had a far different standard

of good faith. And had the expected charge based on the PJC been given, the

actions toward Sanchez would have informed the jury with regards to what a

“reasonably prudent officer” should do in such low-level situations. The evidence

was of extreme importance and violated no rules.

The Trial Court sustained the City’s objection to the admission of the

evidence. RR. Vol 1, Excerpt of Proceedings, 10:7 – 14

CONCLUSION AND PRAYER

The Trial Court did not follow guiding principles of law and did not do a

proper balancing test and this was highly prejudicial to Plaintiff’s case for it would

have shown that none of what happened to her ever needed to happen, the force

was brutally excessive for the level of alleged misdemeanor and there existed a

double standard, all motives for malicious prosecution. The Court should reverse

and remand for a new trial because of this denial of vital evidence.

41 | P a g e
 PRAYER

For the reasons stated in the Conclusion and Prayer to Points of Error Nos. 1

and 2, Appellant Prays that this case be reversed and remanded back to the trial

court for a new trial.

APPENDIX

1. FINAL JUDGMENT

2. CHARGE TO THE JURY

3. TEXAS PATTERN JURY CHARGES

4. TEXAS RULES OF EVIDENCE, RULE 401

5. TEXAS RULES OF EVIDENCE, RULE 402

6. TEXAS RULES OF EVIDENCE, RULE 403

7. TEXAS RULES OF EVIDENCE, RULE 404

8. STIPULATION OF THE PARTIES TO CORRECTION OF
INACCURACIES IN THE REPORTER’S RECORD

42 | P a g e
Appendix
Exhibit 1
 Filed in The District Court
of Travis County, Texas

JAN 08 20~
CAUSE NO. D-1-GN-04-001222
At
-·f¥
f1r.t
Velva L. Price, Distric Clerk

LATISHA MCFADDEN, § IN THB DISTRICT COURT OF
Plaintiff, §
§
vs. § TRAVIS COUNTY, TEXAS
§
GREG OLESKY, ROGELIO SANCHEZ, §
and MICHAEL POLLARD, §
Defendants. § 353RD JUDICIAL DISTRICT

FINAL ruoGMENI

On the 16TH day of November, 2015, the above entitled and numbered cause came on for

trial. Plaintiff appeared through her attorneys of record and Defendants appeared through their

attorneys of record. The parties announced ready for trial, and a jury of twelve persons and one

alternate was empaneled to try the cause.

At the conclusion of Plaintiff's evidence, Defendants moved for a directed verdict The

Court considered the motion and the evidence and found that Defendants Oleskey and Sanchez

were not entitled to a directed verdict However, the Court found that Defendant Pollard was

entitled to a directed verdict. As such, the Court DENIED Defendants Oleskey and Sanchez'

motion for directed verdict and GRANTED Defendant Pollard,s motion for directed verdict As

such, Plaintiff shall take nothing from Defendant Pollard and all claims against Defendant

Pollard are hereby DIS:MISSED WITH PREJUDICE. At the conclusion of Defendants'

evidence, Defendants re-urged their motion for directed verdict as to Defendants Oleskey and

Sanchez, which the Court DENIED. Defendants' motion for directed verdict and the Court's

order on Defendants' motion for directed verdict are incorporated herein for all pmposes by

reference.

1

1111111 111111111111111111111111111111111111111111111111
004379672
 The parties closed the submission of evidence on November 19, 2015, and the Court

submitted the case to the jury. In response to the Court's charge, the jury returned a verdict that

the court received, filed and entered of record. The questions submitted to the jury and the jury's

verdict are attached as Exhibit A and incorporated by reference. The charge of the Court and the

verdict of the jury are incorporated herein for all purposes by reference.

After the jury returned its verdict, Defendants moved for judgment on the verdict. The

Court, having considered the motion of Defendants, and because the verdict of the jury was for

Defendants and against Plaintiff, finds that judgment should be rendered on the verdict in favor

of Defendants and against Plaintiff.

Accordingly, IT IS, THEREFORE, ORDERED that Plaintiff TAKE NOTHING by her

suit, and that each party shall bear their own costs of court.

This judgment finally disposes of all parties and all claims and is appealable.

-:fttt\~ ~IV
S
SIGNED this_ _day of~lS.

2

261
Exhibit 2
 ,!
lJi;
H DC BK15342 PG1708
H
H ·~
fl
tl lJORIG~L :&~
ll
f.i CAUSE NO. D-1-GN-04-001222 ~t!:_ Y2
tltl ..::-~
... c:
fa 0
LATI~ffA:_: MCFADDEN, Plaintiff IN THE DISTRICT COUBlli ~· -~-· ·· 8
fl :
Q) (.)
s:: fit >
:::r- "t:0..
t' t-·- 0
.se
~~ESKEY,
z
OF TRAVIS COUNTY, TE~-g~
:REJI AND :::o

ROG~q
U-

SANCHEZ, Defendants
H .;
H l
u
~,
l ' CHARGE TO THE JURY
1'1 i

MEM+R~ OF THE JURY:
fh. ! This case is submitted to you by asking questions about the facts, which you must
u ;
decideffroll}l the evidence admitted in this trial.

~~-
d
•. In arriving at your answers, consider only the evidence, including exhibits,

admi tt#t id. this trial.
tl ,l
1
!P· In considering this evidence, you are bound to follow the law set forth in this

charge,jas yen as all instructions concerning jurors' conduct that you have been given.

~~- :' You are to make up your own minds about the facts. You are the sole judges of

the crjibi~ty - L£1 fJ &:L kG
Stt\4t1.?Yt f fJ CltllRlfl-=

07
CA TH I 13 OO~TZ

------·•-•••••-·--·----oo•·----0000 •o·••••o 0

DATE: lljz,f/5

12
243
 r 11\'#U Ill Ill~ '-''~I.H\.rL \.IVUil
of Travis County, Texas

~;;
r~·
. it

.:f
;
NoJ 2o2o15
1--f

f!
-£
CAUSE NO. D-1-GN-04-001222 At Jk"u M.
it 1' Velva L. PrjceJ Distric Clerk

LAi$~ J,cFAPDEN
v. ff !. :
§ IN THE DISTRICT COURT
§
§ 353R 0 • JUDlClAL DISTRI'CT
§
§ TRAVIS COUNTY, TEXAS
r,; '
q.
GR~.G LES_· KEY_._, ROGELIO SANCHEZ,
ANitMICHAEL
~·
•. :t
POLLARD
lt;_:, ~'
~::
!•

1
~1 WRITTEN INSTRUCTIONS
L .
i '.·.:f; ; ;
ME~BF11fS OF THE JURY:
t~ '·. ; '
Jl· . ~Y th~ oath that you just took~you became an official of this court and an active participant in
the }•l)li~·administration of justice. It is essential to the administration of fair and impartial justice
that ·ou follo\v these instructions:
J•; :1J)To!avoid·Iooking like you are friendly with one side of the case, do not mingle with or talk
to U,•, :.l~~er$, the !Witnesses, the parties or any other person who might be connected with or
inte ~steqJn tl1is cas~. You cannothaveeven casual conversation abolitthings completely unrelated to
this :~uit\'y)th imy of those people. Do not accept from or give to any of thetn any favors, however
slig~f. • t :
tf; 2:· Do not discuss anything about this case or mention it to anyone, even your spouse or a
frie'11,•_ .~~.eit.,_·_her ir•1 per.\on or by any other means including by phone, text message, email message, chat
roo116 blqg, or social networking websites such as Facebook~ Twitter, or Myspace. Do not let anyone
disc~s t1~e, case with you or in your presence. If anyone tries to talk about the case with you or in your
hear{pg,_rp~ort it to ~ne.as so_on as possible. We do not want you to be influenced by something other
than.th~ :~yadence admttted m court.
fl.: ~M Dg not even discuss this case among yourselves until after you have heard all of the
evid«npe,~Jhe court's charge, and the attorneys' arguments, and I have sent you to the jury room to
begift yotjr deliberations.
Jl , ~~:~ You are the judges of the facts of this case. It is your duty to listen to and consider
care(plly)he evidence admitted under my rulings, and to answer some specitic questions about the
fact~ttJiatJl. wiJ_I subrpit to you in writing in the court's charge.
i ~ 5}.) In 1arriviug at your verdict, you can consider only the evidence admitted during the trial.
l
Do ,pi:~~~e a:ny in~estigati?n on your o~n aboutthe fac~ ofthi.s case. Do not try to get infonnation
aboqt. th~:;cas~, lawyers, wttnesses, or ·tssues from outstde thts courtroom. Do not go to places
menflope~ in the c~e to i~spect the places. Do not i~spect .items mentione.d ~n this case un~ess they
are ~re~e(J~ed .as evtdence m court. Do not look anythmg up m a law book, dacttOnary, or pubhc record
to trt1to l~am more about the case. Do not look anything up on the Internet to try to learn more about
the q~e. i·

~
, 6,. Do not tell other jurors your own experiences or other people's experiences. For example,
you . ~y.·· :·n_:_._·_~-~v. e.-~. peci~l knowledge of something in the case, such as business~ technic.al, or professional
info ~t~qn. You muy even have expert knowledge or opinions, or you may know what happened in
this ,~e..~:)- another similar case. Do not tell the other jurors about it. Telling other jurors about it is
wro.)k1bepause it means thejury will be considering things that were not presented in court. And do
not l~t 'anYone else do any of these things for you.
tt ··~ This rule is very impot1ant because we want a trial based only on evidence presented in
operJ,couh. Your conclusions about this case must be based only on what you see and hear in this
cou~':o·;.·o·m··._:.,_ .• . beq.ause t.he ~aw does n.ot pe. rmit you _to base ):o.ur conclusions on inl~rmatio.n that. ha.s no. t
part r:1
bee 'tPresente~ to you m open court AII the mformatton must be presented m open court so the
d thqir lawyers can test it and object to it. lnfonnation from other sour~IC JtMED
244
!l .
 ·~ ·.:

~{ :
f!
t! ~ill not go through this important process in the courtroom. In addition, information from
othe4i~?~~~es could ~e completely unreliable. As a result, if you investigate this case on your own,
you ~~11,COJI)Prom!se the fairness to all parties in this case and jeopardize the results of this trial.

(1 7J The law:is determined by the legislature and courts of this state. You are obligated to
folloJM.~. my.· instructions about the law, regardless of whether you think the Jaw is right or wrong.
l! · 8~ During the presentation of evidence, the attorneys may make legal objections. If an
obje lion~to a question is sustained, disregard the question, and do not speculate as to why it was
aske~ or \vhat the answer would have been. If an objection to a witness's answer is sustained,
disrtiar. ~.J.~at answer. It is not. in ~vidence, and ~ho.uld not be considered. Do not speculate about or
cons(per{or any reason the obJections or my rulings themselves .
.
·. ~·'·i
f; · 9) Turn otT all cell phones and other electronic devices. While you arc in the courtroom and
whil~youare deliberating, you may not communicate with anyone through an~ dcctronil: device about
the q~se on your cell phone. through e-mail. Blackberry. iPhone. text messaging. or Oil Twitter .
thro!( I~ _a_~.ny blog or Web site, through any Internet chat room, or by way of any other social
1

net\ · rkirig Web sites, including Facebook. MySpace, Linked In, and You Tube. Do not post
.·., 1

·• 't
info ati(m about the case on the Internet before these court proceedings end and you are released
fron{Uury, duty. Do not record or photograph any part of these court proceedings, because it is
prohl~ite,q_ by law.
[l: ~ I:{). During the trial, if taking notes will help focus your attention on the evidence, you may
take llo::.te~. using t!1e :mate. rial~ the. court has pro. vid7d. Do not use ?ny personal electronic.devices to
take ~ote~; Iftakmg notes wtll dastract your attention from the evtdence, you should not take notes.
You{!not~s are for your own personal use. They are not evidence. Do not show or read your notes to
anyo»e, il)cluding other jurors. When you are released from jury duty, the Court Operations Officer
will promptly destroy your notes so that nobody can read what you wrote.
11· I ~tress again that it is imperative that you follow these instructions, a':i well as any others that I
may~a~ergive you. Keep your copy of these instructions) and refer to them should any question arise
abo~~ t;he; rules that' govern your conduct during this trial. A violation of any instruction must be
reported to me as soon as possible. .
r. n V\ft o . ,
~~~~
i

li
' I
\

!t
. I
·.·· H
fi
~!
g1 '

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f'
I!ii
p
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~.

245
Exhibit 3
 TEXAS
----- PATTERN JURY CHARGES

, ~:neral Negligence • Intentional Personal Torts
Workers' Compensation

Prepared by the
COMMITTEE
on
PATTERN JURY CHARGES
of the
STATE BAR OF TEXAS

Austin 2014
 QUESTION _ _
.'\ pez-!
Did Don Davis maliciously prosecute Paul Payne? eno:lg!- -
:10:: .. ('_
"Ma licio us prosecution" occurs w hen one person initiates o r procures, \\.ii:
prosec.· ~
mali ce, and w ithout probable cause at the time the prosecution is commenced
ere no:: ;: :
the prosecution of an innocent person.
JU~. t..:: -·
"Malice" means ill will, bad or evi l motive, o r such gross indifference to the inform:!: ·
rights of others as to amount to a w illful or wanton act. .-\ crimir.J.
:::ng ,._ Grc: ·._

I
"Probable cause" means the ex istence of such facts and circumstances as
would excite belief in a person of reasonable mind, acting on the facts or cir- _ eck. 881 S ., .
-~rlned. as it ~
cumstances within his know ledge at the time the prosecution was commenced.
-dainst plaimr:-!'
that the other person was guilty of a crimina l offense. The probable cause
determination asks whether a reasonable person would believe that a crime had Exemplar~ d

been committed given the facts as the complainant honestly and reasonabl) -:::ssion of an ::
believed them to be before the criminal proceedings were instituted. .~mber I. 19<1 ~
J3llas 1996. r..:;
A nswer "Yes" or "No." ·~parate issue :·
:roof requirerr.e·
Answer: - - - - -- - -
:0 chapter 41 c ;
:or actions fi led
.:Jmages mus: :;.
COMMENT -:1ents to chap:e:
_,ere is othen\ ,:•
When to use. PJC 6.4 is a broad-form question. See Tex. R. C iv. P. 277. It should
be appropriate in most cases involvi ng c laims for ma licious prosecution arising out of
a crim inal prosecution. See PJC 4 .1 comments, " Broad form to be used when feasible··
and "Whe n broad-form questions not feasible."

Source of question and instructions. The seven e lements o r malic ious prosecu-
tion a re ( I) commencement of a crim inal prosecution aga inst the plai ntiff, (2) in itiated
or procured by the defendant, (3) terminated in fa,·or of the plaintiff, (4) who was
innocent, (5) w ithout probable cause. (6) with malice. (7) resulting in damage to the
plaintiff. Richey v. Brookshire Grocery Co .. 952 S. \V.2d 515, 5 17 (Tex. 1997). Note
that the e lement relating to the prosecution ·s being tenninated in favor of the pla intiff
is not included in the above instructions. In the Comm ittee 's view, this element should
be determined by the trial court as a maner of law before the submission of the case to
the jury. Cf Davis v. City of San Amonio. -s2 S. \\ .. 2d 518, 523 (Tex. 1988). Under the
supreme court's formulation in Richey. the plaintiff's innocence is a factual element
that he bears the burden of establishing.

86
 YJL ().4

Dispute about procurement or initiation. In some sihtations there is a dispute
about the procurement or initiation of the criminal prosecution. [n the case of a dispute
about "procurement." the following instruction may be used:
A person procures a criminal prosecution if his actions were
enough to cause the prosecution, and but for his actions the prosecu-
ti on would not have occurred. A person does not procure a criminal
vith prosecution when the decision \Yhether to prosecute is left to the dis-
::ed, cretion of another, includi ng a Jaw enforcement official or the grand
jury, unl ess the person fa ils to fully and fairly disc lose all material
the information known to him or knowing ly provides fa lse information.
A criminal prosecution may be procured by more than one person.

s as King I< Graham, 126 S.W.3d 75. 77 (Tex . 2003): Brmming-Ferris industries, Inc. v.
Lieck, 88 I S.W.2d 288, 293 (Tex. 1994). ··Initiation would not ordinari ly need to be
Clr-
defined, as it would be demons1rated by evidence that defendant filed formal charges
ced,
against plaintiff . .. :· Lieck, 88 1 S.W.2d at 293.
lUSe
had Exemplary damages. A finding of ma licious prosecution may support the sub-
:ibly mission of an exempla1y damages question for causes of action accruing before Sep-
tember I , 1995. Ellis Count)" Slate Bank r. Kee1·er, 936 S. W.2d 683 (Tex. App.-
Dallas 1996, no wril). For causes of action accruing on or after September l, 1995, a
separate issue for exempl ary damages must be submitted because of the burden of
proof requirements for exemplary damages that were created by the 1995 amendment
to chapter 41 of the Texas Civil Practi ce and Remedies Code. See PJC 4.28. Further,
for actions fi led on or after September I , 2003, the separate submission for exemplary
damages must also account fo r the unanimity requirement created by the 2003 amend-
ments to chapter 41. See PJC 4.2C. The practitioner shou ld be aware, however, that
there is otherwise little guidance in the case law for submissions in this area.
ould
ut of
ible"

;ecu-
iated
was
:l the
~o te
in tiff
\QUid
.se to
~r the
ment
Exhibit 4
Rule 401. Test for Relevant Evidence, TX R EVID Rule 401

Vernon's Texas Rules Annotated
Texas Rules of Evidence (Refs & Annos)
Article IV. Relevance and Its Limits (Refs & Annos)

TX Rules of Evidence, Rule 401

Rule 401. Test for Relevant Evidence

Currentness

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Credits
Eff. March 1, 1998. Amended by orders of Supreme Court March 10,2015 and Court ofCriminal Appeals March
12,2015, eff. April1, 2015.

Notes of Decisions (215)

Rules of Evid., Rule 401, TX R EVID Rule 401
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure urc current with amendments
received through April1, 2016. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules
of Judicial Administration are current with amendments received through April l, 20 16. Other state court rules
and selected county rules are current with rules verified through April 1, 2016.

End nf llncumc-nt t· 20 I(J 'fhomson Rt!uters. No daim to originalll.S. Government Work~.

V-/ESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government vVorks.
Exhibit 5
Rule 402. General Admissibility of Relevant Evidence, TX R EVID Rule 402

Vernon's Texas Rules Annotated
Texas Rules of Evidence (Refs & Annas)
Article IV. Relevance and Its Limits (Refs & Annas)

TX Rules of Evidence, Rule 402

Rule 402. General Admissibility of Relevant Evidence

Currentness

Relevant evidence is admissible unless any of the following provides otherwise:

• the United States or Texas Constitution;

• a statute;

• these rules; or

• other rules prescribed under statutory authority.

Irrelevant evidence is not admissible.

Credits
Eff. March 1, 1998. Amended by orders of Supreme Court March 10, 2015 and Court of Criminal Appeals March
12,2015, eff. April1, 2015.

Notes of Decisions (724)

Rules of Evid., Rule 402, TX R EVID Rule 402
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments
received through April!, 2016. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules
of Judicial Administration are current with amendments received through April 1, 2016. Other state court rules
and selected county rules are current with rules verified through April 1, 2016.
····------------------··-..-...-------···-..--------·--·..·-·····-·--·--·---·--------··---·-------··------------·······-----------------------·-----·..··
End ul' Ducumcnt ;{.:• 2016 Thom:.on Reutl'rs. No daim to original U.S. Governm<.•nt Works.

WEST LAW (..Q' 20·16 Th(:;:rson H.euters. No clam~ tu on~JH ·::~1 U.S. c.;overncwnt vVorks.
Exhibit 6
Rule 403. Excluding Relevant Evidence for Prejudice, ... , TX R EVID Rule 403

Vernon's Texas Rules Annotated
Texas Rules of Evidence (Refs & Annos)
Article IV. Relevance and Its Limits (Refs & Annos)

TX Rules of Evidence, Rule 403

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons

Currentness

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.

Credits
Eff. March I, 1998. Amended by orders of Supreme Court March I 0, 2015 and Court of Criminal Appeals March
12,2015, eff. April1, 2015.

Notes of Decisions (1679)

Rules of Evid., Rule 403, TX R EVID Rule 403
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments
received through April I, 2016. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules
of Judicial Administration are current with amendments received through April I. 2016. Other state court ruh:s
and selected county rules arc current with rules veri tied through April 1, 2016.
- - - - - - - - - - - - - - - ---------------------------- --~--------~--- - ---------- - ----- -------------- ------
End of Document < ~016 Thomson R~:ut..:rs. 1\o ..:htim hl original U.S. G(•\cnun..:nt Work:;.

WESTLAW © 2016 Tr1u1nson Reuters. No claim to ori~_1in(1l U.S. Government \tVorks.
Exhibit 7
Rule 404. Character Evidence; Crimes or Other Acts, TX R EVID Rule 404

Vernon's Texas Rules Annotated
Texas Rules of Evidence (Refs & Annosl
Article IV. Relevance and Its Limits (Refs & Annos)

TX Rules of Evidence, Rule 404

Rule 404. Character Evidence; Crimes or Other Arts

Currentness

(a) Character Evidence.

(I) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a
particular occasion the person acted in accordance with the character or trait.

(2) Exceptio11s for a11 Accused.

(A) In a criminal case, a defendant may offer evidence of the defendant's pertinent trait. and if the evidence
is admitted, the prosecutor may offer evidence to rebut it.

(B) In a civil case, a party accused of conduct involving moral turpitude may offer evidence of the party's
pertinent trait, and if the evidence is admitted, the accusing party may offer evidence to rebut it.

(3) Exceptio11s for a Victim.

(A) In a criminal case, subject to the limitations in Rule 412, a defendant may offer evidence of a victim's
pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.

(B) In a homicide case, the prosecutor may offer evidence of the victim's trait of peacefulness to rebut
evidence that the victim was the first aggressor.

(C) In a civil case, a party accused of assaultive conduct. may offer evidence of the victim's trait of violence
to prove self-defense, and if the evidence is admitted, the accusing party may offer evidence of the victim's
trait of peacefulness.

(4) Exceptio11s for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609.

(5) Definition of"Victim." ln this rule, "victim" includes an alleged victim.

(b) Crimes, Wrongs, or Other Acts.

VVESTLAW ~~; 20 ·t6 Them son Routers. No clam! h:. ori~;imj; U.S. C)overmnet \t VVorks.
Rule 404. Character Evidence; Crimes or Other Acts, TX R EVID Rule 404

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in
order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice i11 Crimi11al Case. This evidence may be admissible for another purpose, such
as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack
of accident. On timely request by a defendant in a criminal case, the prosecutor must provide reasonable
notice before trial that the prosecution intends to introduce such evidence--other than that arising in the same
transaction--in its case-in-chief.

Credits
Eff. March 1, 1998. Amended by orders of Supreme Court March 10,2015 and Court of Criminal Appeals March
12,2015, eff. April 1, 2015.

Notes of Decisions (1914)

Rules of Evid., Rule 404, TX R EVID Rule 404
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments
received through April 1, 2016. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules
of Judicial Administration are current with amendments received through April 1, 2016. Other state court rules
and selected county rules are current with rules verified through April I, 2016.

End of Document t • t: ( ~ • l i i. 1 I , l "· f

'fv'ESTLAW @ 2016 Thu:;:son Reut.:.::rs. No dairn to or:qirkd \.! ..~::, Gcvermnc:nt '.:Yorks. )
Exhibit 8
 2/4/2016 5:22:14 PM
Velva L. Price
District Clerk
Travis County
0·1-GN-04-001222
Patricia Winkler
CAUSE NO. D-1-GN-04-001222

LATISHA MCFADDEN § IN THE DISTRICT COURT
Appellant, §
§
v. § TRAVIS COUNTY, TEXAS
§
GREG OLESKY, and §
ROGELIO SANCHEZ §
Appellees § 353RD JUDICIAL DISTRICT

STIPULATION OF THE PARTIES TO CORRECTION OF
INACCURACIES IN REPORTER'S RECORD

TO THE HONORABLE JUDGE OF SAID COURT:

Under Rule 34.6 (e)(l) of the Texas Rules of Appellate Procedure, Latisha

McFadden, Appellant, and Greg Olesky and Rogelio Sanchez, Appellees, by and through

their respective attorneys of record, agree to correct the following inaccuracies in the

reporter's record without the court reporter's recertification: On page 5 of the Reporter's

Record of the Jury Charge Conference of November 19, 2015, there is a 12-minute gap in

the record.

The Parties agree that during these 12 minutes, argument continued on the record

and the parties debated whether the good-faith defense should be Issue No. 1 in the jury

charge or whether malicious prosecution should be Issue No. 1. Counsel for Appellees

argued as to why the good-faith defense should be the first issue considered by the jury

and malicious prosecution the second, arguing, among other things, that because there is
a rebuttable presumption of good faith, that question should be decided first. Counsel for

Appellant argued why malicious prosecution should be the first issue and good-faith the

second, arguing, among other things, that the pattern jury charge on malicious

prosecution dealt exclusively with the tort, which showed that it was the first concern of

the law, and that the idea of making good-faith the first question would be putting things

backwards.

The Parties agree that Counsel for Appellant made objection to the Court's ruling

that the good-faith defense would be the frrstjury question, in timely and plain manner,

specifically on the grounds that under the pattern jury charges and the law the first issue

must be about the tort of malicious prosecution. Counsel obtained a ruling on his

objection in that said objection was overruled by the Court on the record.

Mr. Gray Laird, counsel for Appellees, is in trial this 4th day of February, 2016,

but has this day given expressed permission to Mr. Donald McCarthy, counsel for

Appellant, to sign this stipulation on Mr. Laird's behalf.
Respectfully submitted,

Donald J. McCarthy
The Law Office of Donald J. McCarthy
S.B.N. 00794256
808 W. 11th Street
Austin, Texas 78701
(512) 585-9151
(512) 477.. 1901 {FAX)

ATIORNEY FOR APPELLANT

rUt·.t:: bJ fev~J.ri dVj
Henry Gray Lair
CITY OF AUSTIN LAW DEPARTMENT
S.B.N. 24087054
P.O. Box 1088
Austin, Texas 78767
(512) 974-1342
(512) 974--2894 (FAX)

AITORNEY FOR APPELLEES
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was delivered to counsel for
Appellees, Mr. Gray Laird, Assistant City Attorney, Austin, by agreement by electronic
mail to gray.laird@austintexas.gov and Ms. Andralee Lloyd to andralee.lloyd@
austintexas.com this 4'h day of February, 2016.

p,JUZU~
Donald J.MCCarth)l