dissenting.
I respectfully dissent.
In my view, this is a very simple case which the majority makes very complicated. There was an altercation between Lanzl and Forbes. On the basis of that altercation, Forbes filed the following criminal charge against Lanzl:
I, Mary Jane Forbes, being duly sworn, do state upon my oath that I have good reason to believe and do believe and I charge that heretofore, and before the making and filing of this complaint, on or about the 20th day of August, 1993, in the County of Comal and State of Texas Eugene Lenzl [sic], did then and there intentionally, knowingly or recklessly cause bodily injury to another to wit: Mary Jane Forbes, by kicking the said Mary Jane Forbes’s leg with his foot against the peace and dignity of the State.
/s/ Mary J. Forbes
Complainant
(Emphasis added.) This charge was later dismissed, whereupon Lanzl filed suit against Forbes for malicious prosecution.
In the trial of this lawsuit, Lanzl testified unequivocally that he had not kicked Forbes. Forbes testified that he had. The jury was properly charged on the seven elements of a malicious prosecution action. The jury was also instructed on the general strictness required before they could find in Lanzl’s favor:
You are instructed that actions for malicious prosecution are not favored in law. Public policy favors the exposure of crime, which a recovery against a citizen filing a complaint about a crime tends to discourage.
Public policy requires strict adherence to the rules governing malicious prosecution actions; any departure from the exact prerequisites for liability may threaten the delicate balance between protecting against wrong and encouraging the reporting of criminal conduct.
Finally, the jury was instructed extensively on the meaning of “probable cause,” the initial presumption that the defendant acted reasonably, and the necessity of finding that Forbes lacked probable cause before they could find her liable for malicious prosecution:
“Probable cause” means the existence of such facts and circumstances as would excite belief in the mind of a reasonable person, acting on facts within his or her knowledge, that the person charged was guilty of the offense of assault. The question of probable cause does not depend upon the guilt or innocence of the Plaintiff.
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There is an initial presumption that the Defendant acted reasonably and in good faith and had probable cause to initiate the proceedings; however, that presumption disappears once the Plaintiff produces evidence that motives, grounds, beliefs and other evidence upon which the Defendant acted did not constitute probable cause, and the burden then shifts to the Defendant to offer proof of probable cause.
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You are instructed that the question of probable cause does not depend upon the guilt or innocence of the Plaintiff, but on whether the Defendant had reasonable grounds to believe, and did believe, that Plaintiff was guilty from the facts known to the Defendant at the time of the filing of the complaint.
*904Moreover, if there is probable cause for the belief in the guilt of the Plaintiff for the offense complained of, the Defendant is not liable for malicious prosecution.
With these instructions, the jury was asked in Question No. 1: “Do you find from a preponderance of the evidence that MARY JANE FORBES initiated or procured a malicious prosecution case against EUGENE J. LANZL?” The jury answered ‘Tes.”
I agree that Richey v. Brookshire Grocery Co., 952 S.W.2d 515 (Tex.1997), is the controlling authority. There, the underlying facts were undisputed, allowing the supreme court to conduct a de novo review. The court did, however, address how to decide whether the probable cause issue is one of law or fact, and what to do when the issue is one of fact:
Whether probable cause is a question of law or a mixed question of law and fact depends on whether the parties dispute the underlying facts. When the facts underlying the defendant’s decision to prosecute are disputed, the trier of fact must weigh evidence and resolve conflicts to detemine if probable cause exists, as a mixed question of law and fact.
Id. at 518 (emphasis added).
In the present case, based on the specific assault charge Forbes brought against Lanzl, the relevant “underlying fact” was whether Lanzl kicked Forbes during their altercation. As noted above, that fact was highly disputed. If Lanzl did not actually kick Forbes, then Forbes could not have had probable cause to charge Lanzl with a criminal offense that was based solely on an assertion that he kicked her. Thus, Lanzl’s unequivocal testimony that he did not kick Forbes clearly constituted evidence “that the motives, grounds, beliefs, and other evidence upon which the defendant acted did not constitute probable cause.” Id. at 518. With the presence of such evidence, the initial presumption of reasonableness disappeared. When Forbes testified that Lanzl did kick her, a classic disputed fact issue was created. Under the supreme court’s holding in Richey, the issue was one for the jury to decide as a mixed question of law and fact. See id. The members of the jury did decide that issue, and, in light of the ample evidence to support their answer, I would respect their right to do so.
I would affirm the trial court’s judgment.