Opinion issued July 1, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00866-CV
———————————
LATRICHA SMITH AND BRYAN JAMES SMITH, Appellants
V.
BAILEY HAMMONDS, Appellee
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Case No. 103835-CV
MEMORANDUM OPINION
Latricha and Bryan James Smith appeal the denial of their motion to dismiss
a malicious-prosecution lawsuit filed against them by Bryan’s ex-wife, Bailey
Hammonds. In three issues, the Smiths contend that (1) the reporting of a crime to
police is an activity covered by the Texas Citizens Participation Act (“TCPA”),1
(2) Hammonds did not establish a prima facia case on each element of her
malicious-prosecution claim, and (3) the case should be remanded to award them
attorney’s fees and costs. We affirm.
I. BACKGROUND
A. The Parties’ History
The evidence presented in the light most favorable to Hammonds2 shows the
following. Bryan Smith and Bailey Hammonds are divorced and share custody of
their minor son. The divorce was “messy” and the relationship between the parties
has been acrimonious ever since. Bryan Smith is now married to Latricha Smith.
Hammonds’s affidavit in support of her petition describes two events that
occurred before the events giving rise to this lawsuit that exemplify their toxic
relationship.
During my divorce with Bryan Smith, on or about September of 2012,
while at work, my Father called me to say Bryan and his girlfriend
and other individuals were taking items out of my house. When I
pulled into the driveway and walked inside, he had a DVD player or
1
The TCPA was amended with an effective date of September 1, 2019. See Act of
May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1–12 (codified at TEX. CIV. PRAC. &
REM. CODE §§ 27.001–.010). Because this lawsuit was filed on July 22, 2019, it is
governed by the pre-amendment version of the TCPA, and our citations refer to
that version.
2
See Heiber v. Percheron Holdings, LLC, 591 S.W.3d 208, 211 (Tex. App.—Houston
[14th Dist.] 2019, pet. denied).
2
DIRECTV box in his hand. We argued that he couldn’t take stuff. I
went to grab the box out of his hand and told him to leave, and he
proceeded to drop the box and exclaim, “Oh! That was assault on a
police officer!” He looked at his friend, who was an off-duty officer,
and said again, “That was an assault, WASN’T IT?” To which the off-
duty officer replied, “Yes. I saw it.” I was called into the police
department by a SGT who told me that he advised Bryan that this
wasn’t a smart move, and everything was dropped immediately.
In October of 2012, I received a phone call from his girlfriend at the
time to say he is extremely upset and headed my way and I need to
leave. I proceeded to walk out to my car, when Bryan pulls up in his
truck, with bottle of whiskey and officer issued pistol in hand. He
yelled that he wasn’t going to pay much in child support, and I wasn’t
going to ruin his life, and then threatened me by screaming “I’m going
to kill you - and then I’m going to kill myself.” Officers showed up,
his parents showed up, and I stayed inside for the rest of the time. This
incident immediately followed from our court hearing that set child
support.
****
His child support was increased on or about June of 2018, and ever
since then, the problems have only intensified once again. When he
learned of our [son’s] orthodontist appointment, he proceeded to order
me to stop scheduling [our son’s] appointments on days that he is
supposed to have him, and that he is cancelling the dental appointment
for December 20th because it is HIS time with him.
Bryan Smith believes I am taking time away from him from [our son],
and together combined with his anger of child support being
increased, continued with the following acts of obtaining false charges
upon me, eventually leading to my arrest of a crime that I never
committed.
Hammonds’s petition then alleges the two specific incidents that gave rise to
her lawsuit against the Smith’s for malicious prosecution.
3
B. The Incident at the Orthodontist
Hammonds’s affidavit describes an incident at her son’s orthodontist’s
office, for which she received a citation for leaving a child in a car unattended.
On December 20th, 2018, a criminal prosecution was commenced
against me in the form of a citation for leaving a child unattended in a
vehicle. I set said charge for trial, and it was ultimately dismissed on
the State’s own motion. In this charge, the Defendants themselves
initiated the above prosecution, in that Latricha Smith was in the
parking lot of the Orthodontist that I was at, watching me as I went in.
I believe she communicated with Bryan about me going in, to which
Bryan Smith calls the Lake Jackson Police Department about me
leaving a child in a vehicle, even though I regularly came outside to
check on them, never leaving them alone for more than 5 minutes at a
time. The Officers that arrived were not in the area for more than 60
seconds before I came back outside once again. The Officer went to
her vehicle after I discussed with her what was going on, and she
checked the statute, and then gave me a citation. The charge was
dismissed on the State’s own motion on May 7th, 2019. I was
innocent of the charge placed against me, in that I did not
intentionally or knowingly leave a child in a motor vehicle for longer
than five minutes, knowing that the child is: younger than seven years
of age; and not attended by an individual in the vehicle who is 14
years of age or older. Additionally[,] the [] Clerk of the Orthodontist’s
Office, Haley Tyler, recalls seeing me exit and reenter the building
numerous times to check on my children. Bryan Smith was nowhere
to be seen[] and was not at the orthodontist’s office at any time during
my exiting and re-entering the orthodontist’s office numerous times. I
saw Latricha Smith each time I walked out. For this case, I had to hire
an attorney, Tyson R. Phillips, for $750, to defend me.
C. The Flower-Picking Incident
Hammonds’s affidavit also describes an incident when her child picked
flowers from the Smiths’ yard, for which she was arrested and charged with
criminal mischief.
4
On or about April 5th, 2019, I was arrested for the criminal charge of
criminal mischief[] and was told I had a warrant for my arrest. I was
placed in jail[] and had a bond in the amount of $1500 issued. I had to
hire an attorney to defend me for this, of Tyson R. Phillips and Jimmy
Phillips, Jr., to the amount of $5000, and the case was ultimately
dismissed on June 28th, 2019, by Judge Sherry Kersh, by the State’s
own Motion to Dismiss. I was innocent of the charge placed upon me,
in that I did not, on or about the 28th of March, 2019, intentionally or
knowingly damage or destroy tangible property, namely, Latricha
Smith, or any property owned by Latricha Smith, with or without the
effective consent of Latricha Smith, the owner of said property, of
which the pecuniary loss of said property was alleged to be at least
$100 but less than $750 dollars. When I inquired into what it related
to, I was told it was in relation to my picking up my child for baseball
practice on March 28th, 2019. Our modification order gives me the
right to pick up [my son] for his baseball activity when Bryan Smith is
unable to or otherwise refuses to. He had told me in effect that he
wouldn’t be taking [my son] to his baseball activity, and so I showed
up as I regularly and normally do to take him to his baseball activity.
When I arrived, I saw Latricha Smith and [my son] outside, to which
Latricha immediately shooed [my son] inside the house. After a few
minutes, one of the children told me he wanted to play on the
trampoline, to which I saw [my son] in the backyard jumping on the
trampoline. When walking up to the door, my child handed me a
flower, to which I told him, “Thank you. Don’t pick their flowers. I
did not bang on the door. I did not yell during my time there. I was not
aggressive in any way towards any individual at the location. I did not
tell my children to pick flowers or destroy their flowerbed. I merely
came to exercise the right to take my child to his baseball activity just
as I regularly do. Officer Stackhouse, who I asked about what
happened on the body-cam video of the incident, told me that Bryan
Smith was at the scene, told the officer that he was an ex-cop, told the
officer he knew the law, and that it looked like Bryan Smith bullied
the somewhat new responding officer into filing a charge, to which
the responding officer was reluctant to file.
I have learned that statements have been made about me, to which
they are not true. I never harassed Latricha Smith. I did not have my
kids destroy her flowerbed. I did not commit criminal mischief. I did
not leave my children unattended in a vehicle for more than 5 minutes
5
at a time, I am not court ordered to pick up my child 30 minutes
before [his] baseball practice. I did not tell my children something and
have them walk over to the flower bed and pull off all the flowers. I
did not yell at Latricha Smith. I do not have a history of aggressive
behavior towards Latricha Smith or Bryan Smith. I did not yell and
pound on the door, and I am not court-ordered to contact Bryan Smith
to ask for permission to get my child for baseball practice before
getting my child for baseball practice. I am a mother who follows the
orders of the Court, and have never been held in contempt of violating
such orders.
D. The Malicious-Prosecution Lawsuit
In July 2019, Hammonds sued the Smiths alleging malicious prosecution.
Her live petition asserts that the Smiths maliciously and without probable cause
had charges brought against her as a result of the two incidents detailed above, and
that both charges were ultimately dismissed in her favor. Hammonds alleged that
she “has suffered pecuniary injury, including to [her] reputation, personal
humiliation, and mental anguish and suffering.” She also requested a jury trial on
her claims.
E. The Motion to Dismiss
The Smiths filed a motion under section 27.003 of the TCPA, asserting that
Hammonds’s malicious-prosecution claims should be dismissed because they
implicated the Smiths’ right to petition. After a hearing on the same, the trial court
denied the Smiths’ motion to dismiss. This interlocutory appeal followed.3
3
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12) (authorizing interlocutory
appeal from order denying motion to dismiss brought under TCPA).
6
II. DENIAL OF TCPA MOTION TO DISMISS
In three issues, the Smiths contend the trial court erred by denying their
motion to dismiss, arguing that the TCPA applies to Hammonds’s malicious-
prosecution claims, that Hammonds did not establish a prima facia case on each
element of her malicious-prosecution claims, and that they, the Smiths, are entitled
to recover their attorney’s fees and costs.
A. Applicable Law and Standard of Review
The purpose of the TCPA is to “encourage and safeguard the constitutional
rights of persons to petition, speak freely, associate freely, and otherwise
participate in government to the maximum extent permitted by law and, at the
same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002. The TCPA
provides a mechanism for early dismissal of a cause of action that “is based on,
relates to, or is in response to a party’s exercise of the right of free speech, the right
to petition, or right of association . . . .” Id. § 27.003.
The party moving for dismissal has the initial burden to establish by a
preponderance of the evidence “that the legal action is based on, relates to, or is in
response to the party’s exercise of . . . the right to petition.” Id. § 27.005(b)(1)(B).
If the movant makes this showing, the burden shifts to the nonmovant to establish
by “clear and specific evidence a prima facie case for each essential element of the
7
claim in question.” Id. § 27.005(c). However, even if the nonmovant makes this
showing, the trial court must dismiss the cause of action if the movant “establishes
by a preponderance of the evidence each essential element of a valid defense to the
nonmovant’s claim.” Id. § 27.005(d).
When determining whether to dismiss the legal action, the court must
consider “the pleadings and supporting and opposing affidavits stating the facts on
which the liability or defense is based.” Id. § 27.006(a). “Under [s]ection 27.006 of
the Act, the trial court may consider pleadings as evidence.” Serafine v. Blunt, 466
S.W.3d 352, 360 (Tex. App.—Austin 2015, no pet.). We review the evidence in
the light most favorable to the nonmovant. Heiber v. Percheron Holdings, LLC,
591 S.W.3d 208, 211 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).
The Supreme Court has noted that “[c]lear and specific evidence is not a
recognized evidentiary standard[ ]” and “[a]lthough it sounds similar to clear and
convincing evidence, the phrases are not legally synonymous.” In re Lipsky, 460
S.W.3d 579, 589 (Tex. 2015). “Clear” means “unambiguous, sure or free from
doubt,” and “specific” means “explicit or relating to a particular named thing.” Id.
at 590.
In addition, the Supreme Court noted that the term “prima facie case” means
“evidence sufficient as a matter of law to establish a given fact if it is not rebutted
or contradicted.” Id. at 590. The “clear and specific evidence” requirement does
8
not impose an elevated evidentiary standard, nor does it categorically reject
circumstantial evidence. Id. at 591. But, it requires more than mere notice pleading.
Id. at 590–91. Instead, a plaintiff must provide enough detail to show the factual
basis for their claim.4 Id. at 590.
We consider de novo the legal question of whether the movant has
established that the challenged legal action is covered by the TCPA. Serafine, 466
S.W.3d at 357. We also review de novo a trial court’s determination of whether a
nonmovant has presented clear and specific evidence establishing a prima facie
case of each essential element of the challenged claims. Id.
B. Applicability of the TCPA
In their first issue, the Smiths argue that “the reporting of a crime to police is
covered by the TCPA.” We agree. The TCPA defines the exercise of the right of
free speech as “a communication made in connection with a matter of public
4
In their appellate brief, the Smiths refer to, but do not cite to, a federal district
court case which holds that, “in regard to malicious prosecution under the TCPA,
the principal difference between a prima facie case established by clear and
specific evidence compared to the typical prima facia case is that tclear and
specific evidence must be made without the benefit of rational inferences drawn
from the evidence presented.” Presumably, this statement from appellants’ brief is
a reference to Charalambopoulos v. Grammar, No. 3:14-CV-2424-D, 2015 WL
390664, at *15 (W.D. Tex. Jan. 29, 2015), a case in which the federal district court
made an “Erie-guess” that “a prima facie case established by clear and specific
evidence must be made without the benefit of rational inferences drawn from the
evidence presented.” This “Erie-guess” proved to be incorrect. See Lipsky, 460
S.W.3d at 591 (“We accordingly disapprove those cases that interpret the TCPA to
require direct evidence of each essential element of the underlying claim to avoid
dismissal”).
9
concern.” TEX. CIV. PRAC. & REM. CODE § 27.001(3). A matter of public concern
includes, among other things, “an issue related to . . . health or safety,” or
“environmental, economic, or community well-being.” Id. § 27.001(7). Reporting a
crime to law enforcement and related judicial proceedings arising from
prosecutions are matters of public concern. Brady v. Klentzman, 515 S.W.3d 878,
884 (Tex. 2017); Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 609 (Tex.
App.—San Antonio 2018, pet. denied) (holding court agreed statements to police,
even if false, were exercise of right of petition, a First Amendment right listed in
the TCPA); Fishman v. C.O.D. Capital Corp., No. 05-16-00581-CV, 2017 WL
3033314, at *6 (Tex. App.—Dallas July 18, 2017, no pet.) (mem. op.); see Murphy
USA, Inc. v. Rose, No. 12-15-00197-CV, 2016 WL 5800263, at *3-*4 (Tex.
App.—Tyler Oct. 5, 2016, no pet.) (mem. op.) (holding that TCPA protected
criminal activity report even though charges were dropped).
Having determined that the Smiths’ statements to police were
communications covered by the TCPA, we turn to their remaining issues.
C. Prima Facia Case
In their second issue, the Smiths contend that Hammonds has not presented
clear and specific evidence to support a prima facie case for each essential element
of her malicious-prosecution claims. To prove a civil claim for malicious
prosecution, a plaintiff must establish: (1) the commencement of a criminal
10
prosecution against him; (2) initiation or procurement of the action by the
defendant; (3) termination of the prosecution in his favor; (4) the plaintiff’s
innocence; (5) the absence of probable cause; (6) malice in filing the charge; and
(7) damages. Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 792 n.3 (Tex.
2006). The elements concerning probable cause and malice guard against the
inclination to punish those who, through error but not malevolence, initiate
criminal proceedings against a person who is exonerated. Id. at 792. The probable
cause element 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 initiated. Id.
1. Prima Facie Case Regarding the Incident at the Orthodontist’s Office
Regarding this incident, the Smiths challenge two elements of Hammonds’s
malicious-prosecution cause of action. First, the Smiths contend that, because they
did not give false information to the police, there is no evidence of element 2; i.e.,
there is no evidence that they initiated a criminal prosecution against Hammonds.
Second, the Smiths contend that there is no evidence of element 5; i.e., there is no
evidence of the absence of probable cause. We address each argument,
respectively.
11
a. Initiation or procurement of a criminal prosecution
The Smiths argue that Hammonds’s belief that Bryan Smith called the Lake
Jackson Police Department to report the unattended children in the car is not based
on direct evidence, and thus is not “clear and specific” for purposes of a TCPA
case. However, as noted above, the Supreme Court has disapproved cases
requiring direct evidence and held that circumstantial evidence will suffice. See
Lipsky, 460 S.W.3d at 591 (“We accordingly disapprove those cases that interpret
the TCPA to require direct evidence of each essential element of the underlying
claim to avoid dismissal”). Here, Hammonds presented circumstantial evidence to
support her assertion that Bryan Smith called the Lake Jackson Police Department.
Specifically, she alleged that Latricha Smith “was present and parked in the
vicinity [of the orthodontist office]” shortly before the call to police was made.
Given the parties’ acrimonious history and that Latricha Smith was parked nearby,
it could be rationally deduced that Bryan Smith, after a discussion with Latricha
about what she saw, reported the incident to police.
The Smiths also argue that, even if they reported the incident, the report was
technically true5 and they cannot have caused the initiation of the prosecution
5
The phone call correctly informed the police that there were “2 children left inside
a white suburban at an orthopedic office at the related location, and that the
children were under the age of seven, and that nobody over 14 was in the vehicle.”
This information includes all of the elements of the crime of leaving a child in a
vehicle, except that it omits any reference to the requirement that the child be left
12
because that was decided by the responding police officer’s discretion alone. The
Texas Supreme Court provided guidance on this issue in Browning-Ferris
Industries, Inc. v. Lieck, 881 S.W.2d 288 (Tex. 1994). In Lieck, the appellant
argued that “a person who cooperates with law enforcement authorities by
providing them information should not be liable for malicious prosecution unless
he knows the information to be false.” Id. at 293. The court rejected this bright-
line rule, holding instead that “a person may be liable, not only when he gives
information he knows is false to a prosecutor, but also when his conduct is the
determining factor in the prosecutor’s decision to prosecute.” Id. at 294. In a later
case, the Supreme Court explained that “failing to fully and fairly disclose all
material information and knowingly providing false information to the prosecutor
are relevant to the malice and causation elements of a prosecution claim[.]” Richey
v. Brookshire Grocery Co., 952 S.W.2d 515, 519 (Tex. 1997).
Here, Hammonds alleged that the Smiths failed to fully and fairly disclose
all material information to the police that responded to the call at the orthodontist
office. Specifically, Hammonds’s petition states:
Further, Defendant Bryan Smith did not make a full and fair
disclosure to the Lake Jackson Police Department of material facts
regarding the allegation made, omitting that [Hammonds] was
regularly checking the children in the vehicle, never leaving them
unattended for more than 5 minutes, and said information, if not
in the vehicle longer than five minutes. See TEX. PENAL CODE § 22.10. The
phone call did not mention the parties’ relationship.
13
withheld, would have been a material factor in the officer’s decision
to prosecute and issue a citation to [Hammonds], because such a fact
would have made the Officer aware that there was no violation of the
statute.
Other relevant information omitted from the report to the police, which
could have affected the officer’s decision to issue the citation, were the facts that
Latricha Smith was the witness, Bryan Smith was the caller, and the alleged
perpetrator of the crime was not some unknown person, but was, in fact, Bryan
Smith’s ex-wife. Thus, there was evidence that the Smiths caused the initiation of
the prosecution by failing to fully and fairly disclose all material facts to the
responding officer.6
b. Absence of Probable Cause
The Smiths also attack element 5 of a malicious-prosecution action,
asserting that Hammonds presented no evidence of an absence of probable cause.
In this issue, the Smiths again argue that “because the officer exercised her
discretion to cite Ms. Hammonds, the Smiths did not cause the commencement of a
criminal prosecution.” However, this is “relevant to the malice and causation
6
The Smiths contend for the first time in their reply brief that Hammonds presented
no evidence of malice. However, we note that the evidence presented by
Hammonds to support causation also supports malice. See Richey, 952 S.W.2d at
529 (“failing to fully and fairly disclose all material information and knowingly
providing false information to the prosecutor are relevant to the malice and
causation elements of a prosecution claim”).
14
elements of a malicious prosecution claim but ha[s] no bearing on probable cause.”
See Richey, 952 S.W.2d at 519.
The Smiths also assert that they, as private citizens making a police report,
had no duty to investigate how long Hammonds left the children in the car, that all
other elements of section 22.10 of the Penal Code were met, and that they had a
duty, as citizens, to report suspected child endangerment. As such, the Smiths
contend that they acted in good faith upon probable cause.
The probable-cause element 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 initiated.
Richey, 952 S.W.2d at 517. In malicious prosecution claims, there is a presumption
that the defendant acted in good faith in reporting an apparent subversion of the
law. S. Tex. Freightliner, Inc. v. Muniz, 288 S.W.3d 123, 133–34 (Tex. App.—
Corpus Christi–Edinburg 2009, pet. denied) (citing Kroger, 216 S.W.3d at 794).
The plaintiff bears the burden to rebut this presumption “by producing evidence
that the defendant initiated a prosecution on the basis of information or motives
that do not support a reasonable belief that the claimant was guilty of the charged
crime.” Id. “Evidence of motives that undermine the presumption of reasonable
belief include prior bad relations, preexisting debt, racial animus, or any private
motivation to harm.” Id. at 134; see also Suberu, 216 S.W.3d at 795 (holding
15
probable cause presumed because plaintiff “introduced no evidence of, for
example, prior bad relations, preexisting debt, racial animus, or any private
motivation to harm her”).
Hammonds’s petition and supporting affidavit show a long history of “prior
bad relations” between the Smiths and herself. In her petition, Hammonds asserts:
[The Smiths] have continuing and bad relations with [Hammonds].
Defendant Bryan Smith has previously driven over to Plaintiff’s house
during the divorce, threatening to shoot her and himself. Further,
Defendant Bryan Smith has used his position as an officer in
attempting to file a false charge of assault on a police officer during
their divorce.
Defendant Bryan Smith has been extremely aggressive ever since his
child support was increased in late 2018. After his child support was
increased, any responsible relationship between the unmarried parents
of their child is completely unmanageable and has deteriorated almost
completely.
Defendant Bryan Smith refuses to go to any counseling. Bryan Smith
refuses to take [Hammonds’s] and Bryan Smith’s child to his
extracurricular activity. He has blocked [Hammonds’s] number from
their child’s phone.
In her affidavit, Hammonds asserted:
My divorce with Bryan Smith was messy, and he has harbored ill-will
and ill-feelings towards me ever since. To give a history of his
continuing and patterned behavior, it is necessary to understand the
lengths he will go to in abusing his position [as a police officer] and
the acts he does to attempt to control the individuals in his life.
[Hammonds provides several examples of conflicts she alleges were
initiated by Mr. Smith]
16
Bryan Smith believes I am taking time away from him [and their
child], and together combined with his anger of child support being
increased, continued with the following acts of obtaining false charges
upon me, eventually leading to my arrest of a crime that I never
committed.
Based on this evidence, we conclude that Hammonds has presented evidence
of the parties’ “prior bad relations” and the Smiths’ “private motivation to harm
her” and that, as a result, the Smiths did not act in good faith and did not
reasonably believe that Hammonds had committed a crime when reporting the
incident at the orthodontist’s office. See Suberu, 216 S.W.3d at 795.
2. The Flower-Picking Incident
Regarding this incident, the Smiths challenge two elements of Hammond’s
malicious-prosecution cause of action. First, the Smiths again contend that because
“the decision to prosecute was left to the discretion of individuals other than the
Smiths,” there is no evidence of element 2; i.e., there is no evidence that they
initiated or procured a criminal prosecution against Hammonds. Second, the
Smiths contend there is no evidence of element 3; i.e., that the prosecution was
terminated in Hammonds’s favor. Finally, the Smiths contend there is no evidence
of element 5; i.e., that Hammonds did not present evidence that the Smiths lacked
probable cause in initiating or procuring the criminal-mischief prosecution against
Hammonds. Again, we address each argument, respectively.
17
a. Initiation or procurement of a criminal prosecution
The Smiths argue that Hammonds presented no evidence that they initiated
or procured the criminal-mischief prosecution against Hammonds. Regarding the
procurement element of malicious prosecution, the Texas Supreme Court has
noted:
When a private person gives to a prosecuting officer information that
he believes to be true, and the officer in the exercise of his
uncontrolled discretion initiates criminal proceedings based upon that
information, the informer is not liable under the rule stated in [§ 653]
even though the information proves to be false and his belief was one
that a reasonable man would not entertain. The exercise of the
officer’s discretion makes the initiation of the prosecution his own and
protects from liability the person whose information or accusation has
led the officer to initiate the proceedings.
If, however, the information is known by the giver to be false, an
intelligent exercise of the officer’s discretion becomes impossible, and
a prosecution based upon it is procured by the person giving the false
information.
Lieck, 881 S.W.2d at 293–94 (quoting RESTATEMENT (SECOND) OF TORTS, § 653,
Comment g).
Here, Hammonds produced the following evidence in her pleading:
Defendant Bryan Smith further procured the prosecution when he told
the Brazoria County Sheriff’s Office false information, including that
[Hammonds] was harassing his wife, and had her kids destroy the
flowerbeds. Further, Bryan Smith also procured the prosecution of
criminal mischief when the Responding Officer was reluctant to file
any charged, but Bryan Smith repeatedly told him that he was a[n]
ex[-]cop [sic], and “he knows the law.” Further, Bryan Smith
attempted to bully the relatively new responding officer with
18
intimidation of his extensive expertise and knowledge, and of what
crime [Hammonds] should be charged with.
Defendant Latricha Smith initiated the prosecution by her formal
charge of making a sworn false report, and both Defendants actions
being necessary and sufficient cause of the criminal prosecution.
In her own affidavit, which was attached to her petition, Hammonds stated,
“I did not have my kids destroy [the Smiths’] flowerbed,” and asserted that the
Smiths brought “false criminal charges” against her. Because Hammonds asserted
that the information the Smiths provided to the police was untrue, she has
presented evidence that they procured a criminal prosecution against her. In such a
case, the decision to arrest her would be based on the false information, not the
officer’s discretion.7
b. Termination of the Prosecution in Hammonds’s Favor
The Smiths also argue that “a criminal prosecution that is dismissed does not
warrant a malicious prosecution action” because it is not a termination in the
plaintiff’s favor. In support, the Smiths cite several cases holding that an acquittal
or dismissal are not evidence of a lack of probable cause.8 While these cases may
7
Again, to the extent that the Smiths are complaining for the first time in their reply
brief about Hammonds’s failure to show malice, we note that the same evidence
admitted to show causation supports the malice issue. See Richey, 952 S.W.2d at
519 (“failing to fully and fairly disclose all material information and knowingly
providing false information to the prosecutor are relevant to the malice and
causation elements of a prosecution claim”).
8
See Fisher v. Beach, 671 S.W.2d 63, 66 (Tex. App.—Dallas 1984, no writ);
Parker v. Dallas Hunting & Fishing Club, 463 S.W.2d 496, 500 (Tex. Civ.
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be relevant to the lack-of-probable-cause element of malicious prosecution, they do
not address the termination-of-the-prosecution-in-plaintiff’s-favor element of
malicious prosecution.
For purposes of malicious-prosecution cases, and with exceptions not
applicable here, criminal cases are terminated in favor of the accused by: (1) a
discharge by a magistrate at a preliminary hearing; (2) the refusal of a grand jury to
indict; (3) the formal abandonment of the proceedings by the public prosecutor; or
(4) the quashing of an indictment or information; (5) an acquittal; or (f) a final
order in favor of the accused by a trial or appellate court. RESTATEMENT (SECOND)
OF TORTS, § 659.
In her petition, Hammonds stated that “approximately three months [from
her arrest], the criminal mischief case was dismissed.” In her affidavit, Hammonds
stated, “On or about April 5th, 2019, I was arrested for the criminal charge of
criminal mischief . . . . I was placed in jail, and had a bond in the amount of $1,500
issued . . . . I had to hire an attorney to defend me for this . . . and the case was
ultimately dismissed on June 28th, 2019 . . . by the State’s own Motion to
Dismiss.” Thus, Hammonds has presented evidence that the criminal-mischief case
was terminated in her favor.
App.—Dallas 1971, no writ); Parkerson v. Carrouth, 782 F.2d 1449, 1452 (8th
Cir. 1986); Ledesma v. Dillard Dep’t Stores, Inc., 818 F. Supp. 983, 986 (N.D.
Tex. 1993).
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c. Absence of Probable Cause
Finally, the Smiths again argue that “it is presumed that the party reporting
to the police acted with probable cause,” and that “[g]iven the facts as Ms. Smith
honestly and reasonably believed them to be, she had probable cause to believe
that Ms. Hammonds had engaged in criminal mischief.”
However, as we pointed out earlier, Hammonds presented evidence of the
parties’ “prior bad relations” and the Smiths’ “private motivation to harm her” and
that, as a result, the Smiths did not act in good faith and did not reasonably believe
that Hammonds had committed a crime when reporting the criminal-mischief
incident.
3. Conclusion regarding Prima Facie Case
We conclude that Hammonds’s live pleadings and affidavits, which we are
required to consider as evidence under the TCPA, allege facts that if neither
rebutted nor contradicted, demonstrate the elements of her cause of action for
malicious prosecution. See Serafine, 466 S.W.3d at 360; Lipsky, 460 S.W.3d at
590; Suberu, 216 S.W.3d at 792 n.3; Richey, 952 S.W.2d at 517; see also TEX. CIV.
PRAC. & REM. CODE § 27.006. Because Hammonds made a prima facie case by
marshaling clear and specific evidence of each essential element of her malicious-
prosecution claims, we overrule issue two. See TEX. CIV. PRAC. & REM. CODE Ann.
§§ 27.005(c), 27.006.
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D. Attorney’s Fees
In their third issue, the Smiths contend that “the case [should] be remanded
for a determination of the amount of attorney’s fees and costs due the Smiths as,
under the applicable version of the TCPA here, the award of such fees and costs is
mandatory.” Section 27.009 of the Civil Practices and Remedies Code provides
that “if the court orders dismissal of a legal action under this chapter, the court
shall award to the moving party . . . court costs, reasonable attorney’s fees, and
other expenses incurred in defending against the legal action as justice and equity
may require. TEX. CIV. PRAC. & REM. CODE § 27.009(a)(1).
However, here, the trial court properly denied the Smith’s motion to dismiss,
thus section 27.009(a)(1) does not apply. Accordingly, we overrule the Smiths’
third issue.
III. CONCLUSION
We affirm the trial court’s interlocutory order denying the Smiths’ TCPA
Motion to Dismiss.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Landau and Countiss.
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