Harris County, Texas and Kevin Vailes v. Barbara Coats, Individually, as Personal Representative of the Estate of Jamail Amron, and as Heir to the Estate of Jamail Amron, And Ali Amron, Individually and as Heir to the Estate of Jamail Amron

Motion for En Banc Reconsideration Denied and Dissenting Opinions on Order
filed September 17, 2020.

In The

Fourteenth Court of Appeals

NO. 14-17-00732-CV

HARRIS COUNTY, TEXAS AND KEVIN VAILES, Appellants

V.

BARBARA COATS AND ALI AMRON, Appellees

On Appeal from the 80th Judicial District Court of
Harris County, Texas
Trial Court Cause No. 2012-55551

DISSENTING OPINION FROM DENIAL OF EN BANC
RECONSIDERATION

I join Justice Spain in his dissent. I join Justice Bourliot in her dissent as to
the errors in the panel’s opinion, but do not join in her commentary regarding the
suggestion to temporarily appoint an additional justice to the court of appeals in
order to comprise a majority vote of the court.
 Further, in circumstances such as here, where the vote is tied 4-4, under our
current rules en banc reconsideration fails, which does not serve the parties or the
public interest. See Tex. R. App. P. 49.3. It is the purpose of the courts to address
issues of importance, and if at least four of eight sitting justices of the court find the
opinion merits review en banc, then in the interest of justice, the vote should be
considered granted rather than denied. The Supreme Court should review and
change the Rule.
I would further add that the extraordinary circumstances of this case warrant
it be reheard en banc. See Tex. R. App. P. 41.2(c).
After a three-week trial, the jury returned a verdict against Deputy Vailes and
Harris County. The jury found that Jamail sustained an injury resulting directly from
Deputy Vailes’s use of excessive force that was objectively unreasonable, and that
Deputy Vailes unreasonably seized Jamail. As to Harris County, the jury made
several findings (i.e., findings (a)-(f)), including that a final policymaker for the
county failed to train and supervise law enforcement officers adequately, was
deliberately indifferent to the consequences of such failure, and that a final
policymaker for the County ratified Deputy Vailes’s conduct that violated Jamail’s
constitutional rights to be free from excessive force and unreasonable seizure. The
jury crafted a verdict after considering the evidence, reflecting their consideration,
apportioning damages for fault for Jamail’s death 60% to Harris County, 20% to
Deputy Vailes, and 20% to Jamail. The trial court signed a judgment based on the
verdict.
I agree with Justice Bourliot’s dissent wherein she finds error in the panel’s
reversal of the judgment against Harris County by concluding the County is not
liable under 42 U.S.C. § 1983 for any damages based upon Deputy Vailes’s
constitutional violations because appellees did not establish that the violations were
pursuant to an act or decision of a Harris County final policymaker. The panel’s
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conclusion is contrary to the law, the evidence presented at trial, and the jury finding
in this case. Based on the evidence presented in this case, the jury could have
reasonably found implied delegation by Harris County of policymaking authority on
law enforcement matters to Constable Hickman. See Harris County v. Nagel, 349
S.W.3d 769, 793 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (discussing
governmental liability under Section 1983 based on ratification in relation to a
constable acting in lieu of the county’s governing body with respect to serving
mental health warrants).
Additionally, I agree with Justice Bourliot that the panel erred in reversing the
jury’s finding that Deputy Vailes’s placement of his boot over Jamail’s nose and
mouth for two to five minutes was a proximate cause of his death. The panel
disregards relevant authority and engages in an improper sufficiency review. City
of Keller v. Wilson, 168 S.W.3d 802, 808 (Tex. 2005) (in reviewing the jury’s verdict
for the legal sufficiency of the evidence, we consider all of the evidence in the light
most favorable to the prevailing party, “crediting favorable evidence if reasonable
jurors could, and disregarding contrary evidence unless reasonable jurors could
not.”). Under the facts of this case, there is no requirement for expert testimony to
prove causation. The facts here fall squarely within the line of authority providing
lay testimony is sufficient when “general experience and common sense will enable
a layman to determine, with reasonable probability, the causal relationship between
the event and the condition.” See Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex.
2010); Guevara v. Ferrar, 247 S.W.3d 662, 668 (Tex. 2007) (lay evidence is
sufficient when it establishes a “sequence of events which provides a strong,
logically traceable connection between the event and the condition.”). Based on
witness testimony in this case, the jury could have reasonably inferred that Deputy
Vailes’s boot completely obstructed Jamail’s airways for two to five minutes, and
that as a result Jamail was not breathing and died. Finally, the panel opinion takes
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issue with the jury’s interpretation of the evidence, inappropriately substituting its
opinion on witness credibility for that of the jury. Keller, 168 S.W.3d at 819;
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998) (We may not
pass upon a witness’s credibility or substitute our judgment for that of the jury, even
if the evidence might clearly support a different result).
It is undisputed that the facts of this case involve an unfortunate and
unnecessary death proximately caused by excessive force in violation of Jamail’s
constitutional rights to be free from excessive force and unreasonable seizure. A
final policymaker for Harris County failed to train and supervise law enforcement
officers and was deliberately indifferent to the consequences of such failure.
Moreover, a final policymaker ratified Deputy Vailes’s conduct that violated
Jamail’s rights. Recognizing the gravity of the issues involved, in 2017, a Harris
County jury found in favor of appellees, sending a message that these actions are
unacceptable. Three years later, in 2020, the same message is being heard across
the country: citizens will not tolerate official policies or customs that cause an
individual to be subjected to a denial of a constitutional right. Based on the
importance of this ruling, justice requires this case be heard en banc by the full court.
In sum, the panel, in overturning the jury’s verdict and the trial court's
judgment, misapplies well-settled legal standards and authority as well as invades
the province of the jury. Accordingly, the panel’s errors should be corrected by this
Court or by our high court. See Tex. R. App. P. 41.2(c). Otherwise, the defects in
the panel opinion will ripple through every segment of society.

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 /s/ Margaret “Meg” Poissant
Justice

En banc court consists of Chief Justice Frost and Justices Christopher, Wise, Jewell,
Bourliot, Zimmerer, Spain, and Poissant. (Justice Hassan not participating).
Justices Bourliot, Zimmerer, Spain, and Poissant voted to grant en banc
reconsideration.
Justice Bourliot filed a dissenting opinion in which Justices Zimmerer and Spain
joined, and Justice Poissant joined in part on the merits only.
Justice Spain filed a dissenting opinion in which Justices Bourliot, Zimmerer, and
Poissant joined.
Justice Poissant filed a dissenting opinion, in which Justice Zimmerer joined.

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