We have "long recognized that prosecutors' arguments which attack the personal morals or trustworthiness of defense counsel are manifestly improper b

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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-1753-06 ANN CAROLINE YORK, Appellant v. THE STATE OF TEXAS ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY Johnson, J., delivered the opinion of the Court, joined by Meyers, Price, Womack, Holcomb, and Cochran, JJ. Keller, P.J., filed a dissenting opinion in which Keasler and Hervey, JJ. joined. O P I N I O N After a trial by jury, appellant was convicted of driving while intoxicated (DWI). The trial court imposed a sentence of 180 days in jail and a $500 fine, suspended the jail sentence, and placed appellant on community supervision for one year. The court of appeals affirmed the conviction and sentence. York v. State, No. 14-05-00448-CR (Tex. App.-Houston [14th] 2007). We granted appellant's petition for discretionary review. We reverse the judgment of the court of appeals. On direct appeal, appellant's sole point of error claimed, "The trial court erred in denying [her] multiple requests for a mistrial after the prosecutor repeatedly ignored the court's rulings and admonitions during closing arguments and continued making improper arguments." The court of appeals discussed the jury arguments at issue. It noted that there were "only" seven instances during the state's closing argument at the guilt phase, they occurred at the beginning of the state's argument, and appellant's objections for improper jury argument were each sustained and followed by an instruction to disregard. York, 2006 Tex. App. LEXIS 9200 at * 10. The court of appeals ultimately agreed that "the prosecutor's repeated refusal to heed the trial court's rulings was highly improper," but concluded that the conduct "does not rise to the level of reversal." Id. at * 9-10. It specifically said that "although the prosecutor engaged in improper arguments, . . . the repetitive nature of the argument was not so prejudicial as to require a mistrial." Id. at * 10-11. We granted appellant's two grounds for review which assert that the court of appeals erred: (1) in failing to consider or address all of the factors argued by Appellant as reasons why the instruction to disregard did not cure the flagrantly improper jury argument; (2) in finding that the trial court did not err in failing to grant a mistrial when the distinction of prior Court of Criminal Appeals decisions claimed by the Court of Appeals are directly contrary to other Court of Criminal Appeals decisions and decisions of the same and other Courts of Appeals. The court of appeals quotes extensively from the record and delineates the particulars of the prosecutor's jury arguments that are at issue, and appellant's objections to them and the trial court's rulings. Id. at * 2-6. The record reflects that, included within the challenged argument that the court of appeals acknowledged was "highly improper," the state made multiple attacks on appellant's attorney, including assertions that counsel had misled the jury as to the meaning of "normal use"of appellant's physical and mental faculties. MR. PFEIFFER: Defense Counsel is asking you to follow the law, I'm asking you to do the same. This is the jury charge. This is what-this is from the judge. It tells you what the law is. This is what you're to be guided by when you go back to the jury deliberations room. This is not your normal jury charge. This is what I have right down here defines what normal - MR. TRICHTER: Objection as to what's normal or abnormal. THE COURT: Sustained. MR. TRICHTER: Move to instruct the jury to disregard. THE COURT: Jury to disregard. MR. TRICHTER: Move for a mistrial. THE COURT: Be overruled. MR. PFEIFFER: This isn't normally defined right here. I fought tooth and nail to get this in here. MR. TRICHTER: Objection as to what tooth and nail [sic], move to strike. THE COURT: The jury will disregard. It will be overruled. MR. PFEIFFER: Because during the entire trial, the voir dire all the way up through closing arguments, you've been mislead [sic] as to what normal use is. MR. TRICHTER: Objection, Your Honor, now he's striking over at me - THE COURT: Sustain the objection. MR. TRICHTER: Move for a mistrial. THE COURT: Be overruled. MR. TRICHTER: Ask the Court to instruct the jury to disregard. MR. PFEIFFER: I want to talk about what normal use is. During this trial, you heard Defense counsel suggest that, and even through cross-examination of these officers, "Do you know what this defendant's normal use is?" Throughout this entire trial, it's been about, according to Defense counsel, what this particular Defendant's normal use is. That is not the law. Think about that for a second. Think about that burden if that was the law on me. I had to prove, according to Defense counsel, what this particular Defendant's normal use is. That's impossible. . . . That's why it's not our law. We have it right down here. Normal use means a manner in which the normal, non-intoxicated person would be able to use his faculties, not necessarily Ms. York. I don't have to prove Ms. York's normal use. That is impossible. How do I know that? How do we know that? Cases are appealed and taken, and they come back with the law and gives [sic] us this interpretation right here. MR. TRICHTER: Objection, there's been no testimony to that. THE COURT: Sustained. MR. TRICHTER: Move to have the jury disregard the Prosecutor's comments. THE COURT: Jurors will disregard. Be denied. MR. TRICHTER: Ask for a mistrial. THE COURT: Be denied. MR. PFEIFFER: There's [sic] laws that guides [sic] us to take one - interpret normal use. In that particular case, the attorney who took it up on appeal is none other than, Mr. Trichter - MR. TRICHTER: Your Honor, now I ask again for a mistrial - THE COURT: Sustain the objection. MR. TRICHTER: Move to strike the jury - THE COURT: The jury will disregard. MR. PFEIFFER: If there is anyone - THE COURT: Just a minute, Wait till I get through ruling. MR. PFEIFFER: Yes, Your Honor. MR. TRICHTER: Your Honor, I ask for instructions - THE COURT: The jury will disregard the last statement. MR. TRICHTER: I ask for a mistrial. THE COURT: That will be overruled. MR. PFEIFFER: And if there's anyone - THE COURT: And Mr. - MR. PFEIFFER: Pardon. THE COURT: Argue the facts in this case not what happened not in front of the jury. MR. PFEIFFER: Yes, sir. And if there is anyone in Harris County, Texas that knows what normal use is, it's Gary Trichter because he took it up on appeal. MR. TRICHTER: Your Honor, I move - THE COURT: That may be unsworn testimony. MR. PFEIFFER: Your Honor, I would just ask for a little leeway. THE COURT: That will be overruled and the jury will disregard that. MR. TRICHTER: I ask the Court to instruct the Prosecutor to remain within the proper bounds of argument. THE COURT: Well, I just asked him to do that. MR. PFEIFFER: I'll do that, Your Honor. THE COURT: Yes, sir. MR, PFEIFFER: And for him to suggest otherwise as to what the law is, is shameful. MR. TRICHTER: Your Honor, again, he's attacking me again. THE COURT: Sustain the objection. Jury will disregard. Motion for mistrial is overruled. MR. PFEIFFER: When you go back to deliberations, consider that. And I ask you to. He represents Caroline York. (1) Reporter's Record, Vol. III, pp. 13-18. The prosecutor's "highly improper" jury argument continued in spite of multiple sustained objections by appellant, multiple instructions to disregard by the trial court, and specific instructions from the trial court to argue only the facts of the case. Appellant argues that such repetitive improper jury argument was a direct attack on defense counsel's integrity, honesty, and character, and accused defense counsel of manufacturing the law and affirmatively misleading the jury about it. She asserts that the prosecutor's argument "was that trial counsel knew that the law was not as he had led the jury to believe[,]" and that it was a blatant claim that trial counsel was dishonest. Appellant points to the multiple sustained objections to the prosecutor's jury argument, which were accompanied by the trial court's instructions to disregard, and a direct instruction to argue the facts, all of which were ignored by the prosecutor, who continued to argue what he wanted to argue. She suggests that "[w]hen an officer of the court ignores the trial court with impunity, there is little reason to believe that a jury would feel any need to follow instructions that were already being ignored." (Appellant's Brief, p. 20.) She also suggests that there is no reason to believe that the jury would have taken the trial court's instructions seriously because they saw the prosecutor treat the instructions as "idle chatter and inconvenient interruptions in the argument he was going to make ... regardless of anything the trial judge ruled or said." (Appellant's Brief, p. 21-22.) The state asserts that the first two of appellant's objections, even though pursued to an adverse ruling of denial of her request for mistrial, were too general and nonspecific to preserve error. The state cites several cases that hold that objections to jury argument were too general to preserve error. But those cases involved overruled objections or held that the trial court's instruction to disregard the offending argument vitiated any harm, while in the instant case the trial court sustained appellant's objections and instructed the jury to disregard. It is thus reasonable to conclude that the basis of the objections were readily apparent to the trial court. "The very nature of the prosecutor's argument coupled with defense counsel's objection informed the court of the nature of the error." Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986). We reject the state's argument that appellant's objections were too general to preserve error. The state also suggests that its argument to the jury that it had been misled about the meaning of "normal use" was justified by appellant's cross-examination of the state's police-officer witnesses and by some of his voir dire questioning. It argues that the state's argument was "not inaccurate" "[n]or ... unsupported by the record." The state also argues that, since most citizens are aware that jurisprudence is shaped by case law created when judgments are appealed, the prosecutor's explanation of the origin of "normal use" as having been developed through case law was simply "a statement of a matter generally within the realm of common knowledge." The state further asserts that its comments in argument, which were directed at defense counsel's tactics employed in developing his defensive theory of the case during trial, were appropriate. It suggests that, if describing defense counsel's conduct as "shameful" could be seen as impugning defense counsel's character, the use of "shameful" rather than employing harsher language was not so inflammatory, prejudicial, or extreme that it was not cured by the trial court's immediate instruction to disregard. "We have consistently held that argument that strikes at a defendant over the shoulders of defense counsel is improper." Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007), cert. filed, #07-9590, February 29, 2008. "It is axiomatic that the state may not strike at a defendant over the shoulders of his counsel or accuse defense counsel of bad faith and insincerity." Fuentes v. State, 664 S.W.2d 333, 335 (Tex. Crim. App. 1984). We have "long recognized that prosecutors' arguments which attack the personal morals or trustworthiness of defense counsel are manifestly improper because they undermine the adversarial system by unfairly prejudicing the jury against the defendant's attorney." Fuentes v. State, 991 S.W.2d 267, 274 (Tex. Crim. App. 1999). We have also noted the impact of improper closing jury arguments because they are the last thing the jury hears before deliberations and that an instruction to disregard may be insufficient to remove the prejudice of some such arguments. Norris v. State, 902 S.W.2d 428, 443 (Tex. Crim. App. 1995). In the instant case, the prosecutor's challenged comments were made during his second closing argument and were thus part of the last thing the jury heard before deliberations. "[A] prosecutor runs a risk of improperly striking at a defendant over the shoulder of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel's character." Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). In the instant case, the prosecutor twice referred to defense counsel personally by name during the course of the state's closing jury argument and called defense counsel's arguments "shameful." Thus in the instant case, the prosecutor did improperly strike at appellant over the shoulder of his trial counsel. Permissible jury argument generally falls within four areas: 1) evidence summation; 2) reasonable deductions from the evidence; 3) responses to opposing counsel's arguments; and 4) pleas for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996); Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex. Crim. App. 1973). Striking at a defendant over the shoulder of counsel is not a permissible basis for jury argument. We look to three factors to determine if impermissible jury argument warrants a mistrial. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). These factors are: "(1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction)." Id. and Martinez v. State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000). Nevertheless, the state correctly points out that "[b]ecause all argument has its own individual context from which it arises, caselaw concerning improper argument can never be really anything more than instructive in an analysis of a particular improper argument." (State's Reply Brief, p. 32.) As for severity of the misconduct, the prosecutor's statements were a personal attack on defense counsel, by name, and included an explicit assertion that the jury had "been mislead [sic] as to what normal use is" and that appellant's attorney's actions were "shameful." The state acknowledges that "there was no evidence before the jury establishing that defense counsel knowingly misled the jury, and admittedly, the basis of the implication that defense counsel did so . . . was outside the record." (State's Reply Brief, p. 24.) The trial court's attempt at curative measures was ineffective in that the prosecutor continued to make the same arguments, even in the face of the repeatedly sustained objections and repeated instructions to the jury to disregard. Repeated curative attempts and cautionary instructions that are repeatedly ignored cannot be considered effective. We find the first two factors to weigh in favor of appellant. The certainty of a conviction absent the improper argument is extremely speculative. Although there was disputed testimony about whether appellant's faculties were impaired, and the state acknowledged that the police testimony was problematic, (2) the most hotly disputed issue was whether appellant had been, in fact, the driver of the vehicle. Appellant and the other occupant of the car both testified that the other occupant had been driving, thus conceding that appellant had lied at the scene when she had claimed to have been the driver. Appellant's credibility was a major question for the jury to resolve, and we cannot assume with any confidence that a conviction was certain without the prosecutor's attacks on appellant over the shoulder of her trial counsel. The prosecutor's arguments that appellant's trial attorney was shamefully misleading the jury brought into question veracity and credibility-important issues for the jury to resolve. It is appropriate to object to defense jury argument if the state believes the argument is attempting to mislead the jury regarding applicable principles of law; the trial court can then rule on such an objection. However it is inappropriate to fail to object to such a defense jury argument and then respond by arguing that defense counsel is attempting to mislead the jury. Such an attack is a classic example of striking at the defendant over the shoulders of defense counsel. In Fuentes v. State, 664 S.W.2d 333 (Tex. Crim. App. 1984), we held that a prosecutor's comments that defense counsel was acting "in bad faith like usual" and that evidence which defense counsel was seeking to elicit was "garbage," were manifestly improper, harmful, and prejudicial, and thus constituted reversible error. In Gomez v. State, 704 S.W.2d 770, 771-72 (Tex. Crim. App. 1985), we held that a prosecutor's jury argument accusing defense counsel of manufacturing evidence was not cured by an instruction to disregard and was thus reversible error. In this case, we likewise conclude that, in aggregate, the state's jury arguments attacking defense counsel were manifestly improper, harmful, and prejudicial and were not cured by the trial court's instructions to disregard. We hold that the court of appeals erred in finding that the trial court did not abuse its discretion when it failed to grant a mistrial. See, e.g., Hawkins v. State, 135 S.W.3d 72, 76-77 (2004). We sustain appellant's second ground for review, reverse the judgment of the court of appeals, and remand to the trial court for a new trial. (3) Delivered: July 2, 2008 Do not publish 1. This series of objections and rulings comprises the first five pages of a ten-page closing argument. 2. The prosecutor's jury argument acknowledged the problematic police testimony, saying, "The officer's testimony. I'll admit to you, it stunk. It was bad. I've seen much better. Their training and their knowledge of the law could have been a lot better." 3. Because we have sustained ground number two, we dismiss ground number one.

The definition of a court record is "a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court." Tex. Penal Code Ann.

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. PD-0351-05

THE STATE OF TEXAS


v.


JAMES VASILAS, Appellee


ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

COLLIN COUNTY

Meyers, J., delivered the opinion of the unanimous Court.

O P I N I O N

We granted the State's petition for discretionary review to decide whether a petition for expunction qualifies as a "governmental record" under section 37.01 of the Texas Penal Code. One definition of a governmental record is "anything belonging to, received by, or kept by government for information, including a court record." Tex. Penal Code Ann. § 37.01(2)(A) (Vernon Supp. 2004-2005). The definition of a court record is "a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court." Tex. Penal Code Ann. § 37.01(1) (Vernon Supp. 2004-2005). We will resolve whether pleadings filed with but not issued by a court fall within the definition of a governmental record pursuant to § 37.01(2)(A).

Facts

Appellee, James Vasilas, is an attorney whose client was charged with the state jail felony of delivery of marijuana. Appellee's client was convicted of the lesser-included offense of possession of marijuana. Thereafter, Appellee signed and filed a petition of expunction of the records relating to his client's arrest on the delivery charge. The State then charged Appellee in a four-count indictment of tampering with a governmental record pursuant to Tex. Penal Code § 37.10, alleging that he made three false entries in the petition for expunction. Appellee filed a nonsuit of the expunction lawsuit.

Subsequently, Appellee filed a motion to quash the indictment on two grounds. First, he asserted that § 37.10 of the Texas Penal Code and Texas Rule of Civil Procedure 13 (1) were in pari materia, with Rule 13 controlling over § 37.10. Second, he claimed that pleadings in civil suits were not governmental records under the definition of § 37.01(2)(A). After hearing oral argument, the trial court granted the motion to quash without filing findings of fact or conclusions of law. The State timely filed its notice of appeal.

Because the State did not appeal the trial court's granting of the motion to quash the first three counts of the indictment, the sole issue before the court of appeals was whether the trial court erred in granting the motion to quash Count IV, which alleged that Appellee did "with intent to defraud and harm another, namely, the State of Texas, make, present, and use a governmental record, to wit: a Petition for Expunction of Records, with knowledge of its falsity." (2) The court of appeals affirmed the trial court, holding that "the petition for expunction filed by appellee was not a governmental record within the meaning of chapter 37 of the penal code." State v. Vasilas, 153 S.W.3d 725, at *5 (Tex. App.-Dallas 2005, pet. granted). The court of appeals reasoned that by including a court record in the definition of a governmental record, the legislature meant to exclude every type of court document that was not a court record. Since the definition of a court record under the Texas Penal Code is a document issued by a court, the court of appeals concluded that a pleading, such as a petition for expunction, which is created by a party or attorney and merely filed with a court, cannot be a governmental record. Having resolved this issue against the State, the court of appeals did not address whether Tex. Penal Code § 37.10 and Rule 13 were in pari materia.

Issue Presented

The State argues that "under the plain language of the statutory definition of 'governmental record,' which encompasses anything received by a court for information, a petition for expunction can be a governmental record even though it is filed with, not issued by, a court." The State asserts that the court of appeals' interpretation of the definition of a governmental record violates section 311.005(13) of the Texas Government Code, commonly referred to as the Code Construction Act, which defines "including" as a term of enlargement and not of limitation. Furthermore, the State submits that the court of appeals should not have looked beyond the plain language of the statute to its legislative history in discerning the meaning of a governmental record, and that it erred by misinterpreting the legislature's intent in amending the definition of governmental record in 1997 to include a court record. (3) While Appellee concedes that the word "including" is not itself a term of limitation, he argues that a petition for expunction does not qualify as a governmental record because: 1) the words "for information" in § 37.01(2)(A) exclude documents that seek to destroy information; 2) the legislature did not explicitly include pleadings within the definition of a governmental record; and 3) the petition for expunction was not a governmental record when the false entries were made. Although Appellee also advances the argument that § 37.10 and Rule 13 of the Texas Rules of Civil Procedure are in pari materia, the court of appeals did not reach this issue, and it is not the issue for which we granted review. We will reverse the court of appeals' decision.

Analysis

The resolution of this case depends on the meaning of the word "including" in the definition of "governmental record" in § 37.01(2)(A). The construction to be given a statute is a question of law. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). In our leading statutory interpretation case, Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991), we explained that courts must begin with the plain language of a statute in order to discern its meaning. This is because the court's interpretation of statutes must "seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation." Id. at 785 (citing Camacho v. State, 765 S.W.2d 431 (Tex. Crim. App. 1989)). In Boykin, we established that if the literal text of the statute was clear and unambiguous, we would ordinarily give effect to that plain meaning. 818 S.W.2d at 785 (citing Smith v. State, 789 S.W.2d 590, 592 (Tex. Crim. App. 1990)). However, we also held:

If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history.

Id. at 785-86. The seminal rule of statutory construction is to presume that the legislature meant what it said. Seals v. State, 187 S.W.3d 417, 421 (Tex. Crim. App. 2005). In adhering to this rule, we show our respect for the legislature and recognize that if it enacted into law something different from what it intended, it would amend the statute to conform to its intent. Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) (citing Lamie v. U.S. Trustee, 540 U.S. 526, 542, 124 S.Ct. 1023, 1034, 157 L.Ed.2d 1024 (2004) ("It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think . . . is the preferred result.")).

The legislature has provided the Code Construction Act to assist in statutory interpretation. It instructs that "words or phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." Tex. Gov't. Code Ann. § 311.011(b) (Vernon 2005). In § 311.005(13) of the Code Construction Act, the legislature expressly stated its intent regarding its use of the word "including" in statutory provisions, providing: "'Includes' and 'including' are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded." Tex. Gov't. Code Ann. § 311.005(13) (Vernon 2005). This Court relied on § 311.005(13) in interpreting the statutory meaning of "including" in Grunsfeld v. State, 843 S.W.2d 521 (Tex. Crim. App. 1992) (plurality opinion), superseded by statute, Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1994). Pursuant to § 311.005(13), we established that the list following "including" in Article 37.07(3)(a) of the Texas Code of Criminal Procedure (4) was not exclusive as to the evidence admissible at the sentencing phase of trial, as long as it was relevant to sentencing. Grunsfeld, 843 S.W.2d at 525 (explaining that the legislature's use of the term "including" in amending Article 37.07(3)(a) rendered the list following it nonexclusive); see also Beasley v. State, 902 S.W.2d at 456-57 (holding that evidence concerning the activities of a gang, to which the appellant belonged, was admissible under Article 37.07(3)(a) because matters relevant to sentencing were not limited to "the prior criminal record of the defendant, his general reputation and his character"). (5)

The lower courts have also interpreted the legislature's use of the word "including" as a means of illustration and not exclusion. For instance, in Leach v. State, the court of appeals applied § 311.005(13) to the defendant's community supervision condition, which tracked statutory language in the Texas Code of Criminal Procedure, and held that the word "including" did not "creat[e] a presumption against further inclusion of terms not expressly stated." 170 S.W.3d 669, 673 (Tex. App.-Fort Worth 2005, pet. ref'd) (holding that because "including" was a term of enlargement, the defendant had violated his community supervision by going within 1000 feet of a grassy area where children played, even though this location was not specified in the list of prohibited premises). Similarly, in Wilburn v. State, the court of appeals relied on § 311.005(13) to reject the appellant's argument that, by specifically including franchise taxes in the Franchise Tax Act, the legislature had intended to exclude directors' and officers' liability for all other taxes. 824 S.W.2d 755 (Tex. App.-Austin 1992, no pet.). In H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., Ltd., this same court of appeals reasoned that the Railroad Commission of Texas's use of the word "including" in a notice provision did not create an exclusive list of interests entitled to notice. 36 S.W.3d 597 (Tex. App.-Austin 2000, pet. denied). In fact, citing § 311.005(13), the court of appeals stated that "the Commission's use of the word 'include' in the provision signified that the list is not exclusive." Id. at 603 (emphasis added).

Both this Court and the lower courts of appeals have construed "including" as a term of enlargement in accordance with the legislature's intention. By employing the word "including" to illustrate an example of a governmental record, the legislature did not by its plain language intend to exclude documents that were filed with the court from the definition of § 37.01(2)(A). In spite of the fact that the word "including" is unambiguous and the legislature has assigned it a particular meaning of enlargement, Appellee argues that the definition of a governmental record still excludes the petition for expunction at issue.

First, Appellee claims that the legislature would have included pleadings in the express language of § 37.01(2)(A), if it had intended them to be governmental records. We have already explained that the legislature's decision to name a court record as an example of a governmental record does not narrow what qualifies as a governmental record. Furthermore, we agree with the State that "it is difficult to see how the legislature would have to make any additions to the definition of governmental record for the current word 'anything' to include a pleading." (6) Second, Appellee contends that the phrase "for information" in the definition of governmental record operates to exclude the petition for expunction because it seeks to destroy other governmental records. Just because the filing of a petition for expunction may result in the destruction of certain records does not take away from the fact that the petition gives the government information about which records the petitioner wants to expunge. Third, Appellee contends that the petition for expunction is not a governmental record because it had not been received by the government when the false entries were made. See Pokladnik v. State, 876 S.W.2d 525 (Tex. App.-Dallas 1994, no pet.); Constructors Unlimited v. State, 717 S.W.2d 169 (Tex. App.-Houston [1st Dist.] 1986, pet. ref'd). Appellee's argument is misplaced because he relies on cases in which defendants were charged under § 37.10(a)(1), which requires knowingly making a false entry in, or false alteration of, a governmental record, and not under § 37.10(a)(5), which requires making, presenting, or using a governmental record with knowledge of its falsity. Although the petition for expunction was not a governmental record when Appellee prepared it, it became a governmental record once the court received it and he used it in seeking to obtain the expunction of records. See Morales v. State, 11 S.W.3d 460 (Tex. App.-El Paso 2000, pet. ref'd) (holding that even if a petition containing signatures for placement on the ballot was not a governmental record when it was falsified, it became a governmental record after it was accepted by the party chairperson and the candidate relied on it to maintain his position on the ballot). We conclude that the legislature's definition of a governmental record is clear and unambiguous and may include a court record, such as the petition for expunction at issue.

Having established that the clear and unambiguous language of § 37.01(2)(A) does not exclude pleadings, such as a petition for expunction, from the definition of a governmental record, it is necessary to determine whether bringing the petition for expunction within the language of the statute would lead to an "absurd result that the legislature could not possibly have intended." Getts, 155 S.W.3d at 155 (citing Boykin, 818 S.W.2d at 785-86). Relying on § 311.021(5) of the Code Construction Act for the proposition that in enacting a statute, there is a presumption that public interest is favored over any private interest, Appellee describes the allegedly falsified petition for expunction as a mistaken pleading, the prosecution of which "would have a chilling effect upon our system of jurisprudence." He characterizes the result of including pleadings in the definition of a governmental record as: "the State's orwellian [sic] persecution of lawyers by attempting to deprive counselors licensed by the Supreme Court of Texas of their ability to earn a living practicing before our courts." Clearly, Appellee misses the point of § 37.10, which does not effectively disbar attorneys, but makes them criminally liable if they tamper with a governmental record. While § 37.10(a)(5) makes it an offense to make, present, or use a governmental record with knowledge of its falsity, § 37.10(a)(3) makes it an offense to intentionally destroy, conceal, remove, or impair a governmental record, which is effectively what the falsified petition for expunction was attempting to do. There is nothing absurd about the legislature seeking to prohibit these acts with respect to a petition for expunction or other pleadings, and these prohibitions do not preclude effective lawyering, as Appellee suggests, by forbidding attorneys from entering alternative pleadings. Tampering with a governmental record pursuant to the definitions of §§ 37.10(a)(3) and 37.10(a)(5) is very different from advocating a client's interests by advancing different legal theories which have bases in the facts and the law.

Furthermore, we have not often considered the issue of what constitutes a governmental record, but our caselaw indicates that there is nothing unique about a petition for expunction such that the legislature would seek to treat it differently from all the other records that would fall within its scope. For instance, applications for government benefits, such as the one in State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999), clearly qualify as governmental records. It is not at all absurd for the legislature to include pleadings within the meaning of a governmental record pursuant to § 37.10(a)(5). The legislature obviously meant to protect the people of the State by making it a crime to tamper with governmental records. By enacting § 37.10, the legislature intended to prevent a multitude of harms, including the destruction of governmental records, the perpetration of a fraud upon the court, and the miscarriage of justice that could result from the use of falsified records. There is nothing absurd about the legislature criminalizing such conduct.

Conclusion

Because the legislature's definition of a governmental record is clear and unambiguous, and including pleadings in this definition does not lead to an absurd result, it is unnecessary to examine the legislature's intent in amending the definition of a governmental record in 1997. The court of appeals erred in undertaking such an analysis. We reverse the decision of the court of appeals and remand the case for consideration of the second ground for review.

Meyers, J.

Delivered: March 22, 2006

Publish


1. Rule 13 of the Texas Rules of Civil Procedure is entitled "Effect of Signing of Pleadings, Motions and Other Papers; Sanctions."

2. Section 37.10(a)(5) provides that a person commits the offense of tampering with a governmental record if he "makes, presents, or uses a governmental record with knowledge of its falsity." Tex. Penal Code Ann. § 37.10(a)(5) (Vernon Supp. 2004-2005). Pursuant to § 37.10(c)(1), this offense is "a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony." Tex. Penal Code Ann. § 37.10(c)(1) (Vernon Supp. 2004-2005).

3. In 1997, the legislature amended § 37.01 by adding the phrase "including a court record" to the definition of "governmental record" in what had previously been § 37.01(1)(A). The legislature moved the definition of governmental record from subsection (1) to subsection (2) and added a definition of a "court record" in § 37.01(1). See Tex. Penal Code Ann. § 37.01 (Vernon Supp. 1998).

4. At the time we decided
Grunsfield, Article 37.07(3)(a) provided that "regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character." Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1991) (emphasis added). Subsequent to our decision in Grunsfeld, the legislature amended the language of § 37.07(3)(a) to clarify that evidence of unadjudicated extraneous offenses and prior bad acts were admissible at punishment. See Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1994); Beasley v. State, 902 S.W.2d 452, 457 (Tex. Crim. App. 1995) (plurality opinion) (McCormick, P.J., concurring).

5. Although we decided
Beasley in 1995, we relied on the earlier version of Article 37.07(3)(a), which we interpreted in Grunsfeld and which was in effect when the appellant had committed his offense.

6. The State first advanced this argument in its brief to the Fifth Court of Appeals.

Citations in draft or construction of an opinion is that considered "plagerism"? OR "selective syntax"?

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. PD-0577-05

EX PARTE SWANDA MARIE LEWIS, Appellant




ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY

Price, J., filed a dissenting opinion in which Meyers and Holcomb, JJ., joined.



DISSENTING OPINION


I agree that Article I, Section 14 of the Texas Constitution has been, and should continue to be, read to apply in the mistrial setting. I therefore agree with Parts I through III of the Court's opinion. I disagree, however, that any of the justifications for ignoring stare decisis apply to support overruling Bauder v. State. (1) I therefore dissent to Part IV, and to the majority's disposition of this case. I would reject the State's contentions that Bauder ought to be overruled, and proceed to its third ground for review, which the majority instead dismisses, to determine whether the court of appeals properly applied Bauder to the facts of the instant case. Because the majority does not, I ultimately dissent.

I. FEDERALISM

It has by now been established beyond serious debate that in construing provisions of our own constitution "we must ultimately follow our own lights." (2) We may construe our own constitutional provisions either more protectively than their federal constitutional counterparts, as we did in Bauder, or less protectively, as we did in Hulit v. State. (3) In Bauder we construed Article I, Section 14 of the Texas Constitution (4) to be more solicitous of a defendant's "valued right to have his trial completed by a particular tribunal" (5) than the Supreme Court interpreted the Fifth Amendment to afford in Oregon v. Kennedy. (6) Now, little more than ten years after Bauder, the majority declares our construction of Article I, Section 14 to represent an elusive "ideal," and declares that the "real ideal" is the Supreme Court's standard in Kennedy. (7) I do not believe the majority's belated arguments in favor of the federal "ideal" are sufficiently compelling to justify disregarding stare decisis. (8)

As the majority develops in Part III of its opinion, this Court's predecessor, the Texas Court of Appeals, long ago held that the concept of jeopardy, as embodied in what is now Article I, Section 14 of the Texas Constitution, is broad enough to protect a defendant's right to proceed to a final verdict, once the jury has been impaneled and sworn. (9) It did so long before the United States Supreme Court first expressly recognized, in 1949, that a criminal defendant has a "valued right" under the Fifth Amendment "to have his trial completed by a particular tribunal." (10) But once the Fifth Amendment's double jeopardy protection was found to be applicable to the states by incorporation through the Fourteenth Amendment, in 1969, (11) this Court, like many state courts across the country, allowed the Supreme Court to take the lead in developing double jeopardy doctrine. Thus, in the 1970s and 1980s, until Bauder came along, we were content to follow the dictates of federal precedent, including Oregon v. Kennedy, as a matter of federal jeopardy law, without addressing the independent question of whether we ought to construe our analogous state constitutional provision any differently. (12) Federal jeopardy law had become the template for decision. Bauder required us to decide whether, in applying our own jeopardy provision in a case of first impression, we would conform to the federal template or "follow our own lights."

The majority acknowledges that an historical analysis of our own jeopardy provision would not shed any light on the question, either now or at the time Bauder was decided. (13) The question whether double jeopardy protection is implicated by prosecutorial misconduct that provokes a defendant to request a mistrial arose during the interim when state courts were deferring to the federal template. Cases like United States v. Jorn, (14) United States v. Dinitz, (15) and Arizona v. Washington, (16) which formed the doctrinal backdrop for Oregon v. Kennedy, were all decided during this interim. It was a new gloss on double jeopardy law. The question in Kennedy was how far to go with that new gloss under the Fifth Amendment, consistent with the principles of double jeopardy. And squarely presented to this Court for the first time in Bauder was whether to adopt that gloss at all under Article I, Section 14, and, if so, how far to take it consistently with our own understanding of the proper scope of double jeopardy protections. That is all the majority has done today. It simply disagrees with the majority that decided Bauder.

II. PROSECUTORIAL MISCONDUCT

The criminal defendant's right to have his trial completed by the tribunal originally selected to decide his fate, once jeopardy has attached, has never been regarded as absolute. Indeed, when first recognized by the Supreme Court in Wade v. Hunter, that right was immediately balanced against "the public's interest in fair trials designed to end in just judgments." (17) This is the reason that "manifest necessity" will justify a mistrial, even in the event of ordinary judicial or prosecutorial error. As Justice Stevens explained for the Supreme Court in Arizona v. Washington:

Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Yet in view of the importance of that right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate "manifest necessity" for any mistrial declared over the objection of the defendant. (18)


Courts need not inquire about manifest necessity for a mistrial, however, when the defendant himself asks for or consents to it. The defendant's consent signals his election to forego his right to proceed to verdict with the first tribunal even though prejudicial error may have been injected into the proceedings, and there is no jeopardy bar to reprosecution. (19)

The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant's mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause-the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions. (20)


The choice must be the defendant's, to-wit: whether he believes his interest in avoiding anxiety, expense, and delay is better served by proceeding to verdict with the first tribunal, and possible acquittal, or by cutting the first prosecution short in order to proceed more expeditiously with a second. And in this context, "[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over" that decision. (21)

At some point, of course, ordinary prosecutorial error may rise to the level of prosecutorial misconduct. And, at some point, prosecutorial misconduct may become so egregious that it cannot fairly be said that the defendant has retained primary control over the decision whether to proceed to verdict or abort the proceedings. The question for decision in Oregon v. Kennedy was how to identify prosecutorial misconduct that is so manipulative that it deprives the defendant of a "meaningful"choice of which option best protects his interest in avoiding as much as possible the anxiety, expense, and delay inherent in criminal prosecution. (22) In making this determination, a court must be mindful of the competing values that are at stake-on the one hand, the defendant's valued right to proceed to verdict with the first tribunal, and on the other, the State's equally valued right to "one full and fair opportunity to present [its] evidence to an impartial jury." (23) At what point does prosecutorial misconduct cause the scale to tip in favor of the defendant's right, notwithstanding that it was he who requested the mistrial?

In Oregon v. Kennedy, the Supreme Court answered this query for Fifth Amendment purposes by holding that a criminal defendant loses primary control over the critical choice whether to proceed to verdict or abort only "where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial[,]" and that only then "may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." (24) But why should this be so? It is not self-evident that the specific intent to provoke a mistrial request should be the only degree of prosecutorial culpability sufficient to reinvigorate the defendant's valued right to proceed to verdict with the first tribunal despite the fact that he asked for the mistrial. The State is entitled to one full and fair opportunity to present its evidence to an impartial jury. It can reasonably be argued that other, lesser degrees of prosecutorial culpability should suffice to justify the conclusion that the State has abused, and therefore forfeited, that opportunity. When the prosecutor intentionally commits misconduct he knows will seriously compromise the fairness of the trial, he has arguably squandered his one full and fair opportunity to present his case, so that the State's interest can no longer be said to outweigh the defendant's-even if he did not harbor a specific intent to provoke a mistrial. If his intention was to inject manifest unfairness into the proceeding, and he was consciously indifferent with respect to whether this intentional misconduct illegitimately increased his chances of gaining a conviction or provoked the defendant into asking for a mistrial, the argument is practically as compelling that he has forfeited his one full and fair opportunity to present his case as when it was his specific intent to provoke a mistrial. Either way, a reasonable argument can be made that the prosecutor has manipulated the defendant's choice to such an extent that it is no longer primarily the defendant's, and the State can no longer show that its interest outweighs the defendant's in the constitutional balance.

This is, in essence, what we held in Bauder. (25) It was not an unreasonable or an outlandish holding. It was certainly not a unique holding. (26) It may even have been the more logical holding, given the constitutional principles involved. (27) In any event, it was not such a manifestly erroneous holding that we can justify overruling it just because there is a majority of the Court presently willing to do so. I next address what I understand to be the majority's asserted reasons for doing so.


III. DISREGARDING STARE DECISIS

As I break down the majority's opinion, it has identified essentially six flaws in the Bauder analysis that, taken together, are serious enough to justify its demise. I do not share any of those concerns. I will respond to them in turn.

A. Only a Specific Intent to Provoke Mistrial Triggers Jeopardy Concerns

Like the Supreme Court in Oregon v. Kennedy, the majority believes that a specific prosecutorial intent to provoke a mistrial "is critical to determining whether [the prosecutor], rather than the defendant, has exercised primary control over whether a mistrial is sought." (28) For reasons I have already explained, a specific intent to provoke mistrial is not the only degree of prosecutorial culpability that can reasonably be found to trigger jeopardy protection. The majority does not explain why a slightly lesser degree of prosecutorial culpability could not also justify a court in concluding that the prosecutor has forfeited his one full and fair opportunity to present his case, thus tipping the balance in the defendant's favor on the double jeopardy scale. In Bauder we essentially held that a prosecutor who consciously disregards a known risk that his deliberate misconduct will provoke a mistrial, even if a mistrial was not necessarily his conscious objective, nevertheless harbors a degree of culpability sufficient to forfeit his one full and fair opportunity. (29) The majority does not convince me that this cannot reasonably be regarded as a sufficient level of culpability to justify jeopardy protection.

The majority argues that our earliest case law deemed the premature termination of a trial to implicate jeopardy concerns only because it was the functional equivalent of an acquittal, (30) and a prosecutor whose conscious objective is not necessarily to provoke a mistrial cannot be said to have sought the functional equivalent of an acquittal. (31) But this is not self-evident to me either. A prosecutor who has consciously disregarded a substantial risk that his deliberate misconduct would provoke a mistrial has also consciously disregarded the substantial risk his conduct would cause the functional equivalent of an acquittal, even if that was not necessarily his conscious objective. To reiterate: It is not unreasonable for a court to conclude, as we did in Bauder, that such a prosecutor has abused, and therefore forfeited, his one full and fair opportunity at a verdict favorable to the State.

B. Bauder Is Due Process in Double Jeopardy Clothing

The majority claims that, by focusing on the fact that a slightly lesser degree of prosecutorial culpability than specific intent may also compromise the defendant's right to a fair trial before the first tribunal selected, the Court in Bauder "conflates the double jeopardy protection with more generalized notions of due process and due course of law." (32) Elsewhere it has been suggested that to apply a lesser standard of culpability than specific intent to justify jeopardy relief is merely a means for courts to punish prosecutors, rather than to scrupulously serve double jeopardy principles. (33) I disagree on both counts.

Both the defendant and the State are entitled to one full and fair opportunity for trial. Ordinarily, double jeopardy entitles the defendant to proceed to verdict with the first tribunal selected. Manifest necessity or the defendant's own consent may suffice to defeat his constitutional interest, but not otherwise. This means that sometimes the defendant must experience the anxiety, expense, and delay of a second trial even when his first trial was rendered unfair for reasons unattributable to him. But he should not necessarily have to suffer that consequence when the retrial was attributable to deliberate misconduct on the part of the prosecutor. When that misconduct so compromised the fairness of trial as to render mistrial inevitable, and the prosecutor was at least consciously indifferent to that result, the State may reasonably be said to have abused its one full and fair opportunity to present its evidence to an impartial tribunal, and it can no longer carry its burden to demonstrate that its interest in the jeopardy balance outweighs the defendant's, even when it was the defendant who requested a mistrial. Thus, jeopardy principles are vindicated. It is true that the fairness that due process and due course of law guarantee may also be vindicated and that the prosecutor may feel he is being made to pay a heavy price for his misconduct. But these consequences are incidental to, and do not by any means displace, the jeopardy analysis.

C. Later Case Law Is Inconsistent with Bauder

The majority complains that if we were correct in Bauder to find a lesser prosecutorial culpability to be sufficient to trigger jeopardy protection in the context in which the trial court grants a defendant's motion for mistrial, we should also have held, as other jurisdictions have done, that even when the trial court erroneously denies the mistrial, we should bar retrial after the defendant successfully challenges his conviction on appeal. (34) In Ex parte Davis (35) and Ex parte Mitchell, (36) we expressly declined to do so. We held that the defendant had not been deprived of his valued right to proceed to verdict with the first tribunal, since his trial was prosecuted to a conclusion, albeit a conviction. This may well represent a logical inconsistency in our case law. (37) But if so, it applies with equal illogic whether the prosecutor consciously intended to cause a mistrial or he consciously disregarded a substantial risk his misconduct would provoke a mistrial. (38) Thus, to the extent these cases are logically unfaithful to Bauder, they are equally unfaithful to the Oregon v. Kennedy standard. It seems to me that if any of our precedent deserves closer scrutiny, it would be Davis and Mitchell, not Bauder.

D. The Bauder Standard Is Too Amorphous

I do not disagree with the majority that mistrials that result in a jeopardy bar ought to be relatively rare occurrences. (39) The Bauder standard, particularly as it was later elaborated in Ex parte Peterson, (40) should produce jeopardy bars only in a very slightly greater number of cases than the Oregon v. Kennedy standard. The majority complains that some of the language in Bauder seemed to blur the concept of recklessness, creating a danger that it might be understood as something akin to the prosecutorial "overreaching" standard that the Supreme Court flatly rejected in Oregon v. Kennedy. (41) Again, whatever imprecision may have inhered in the specific language of Bauder itself, and whatever confusion it may have engendered, was later remedied in our opinion in Peterson. I do not think any reasonable prosecutor would now mistake the standard explicitly set out in Peterson as a rule imposing a jeopardy bar on the basis of mere prosecutorial "overreaching." It makes little sense to discard a legal standard barely three years after, in the ordinary evolution of our decisional law, we have finally perfected it.

I cannot agree with the majority that, even as perfected, the standard articulated in Peterson will not adequately equip prosecutors to be able to tell that deliberate misconduct sufficient to trigger double jeopardy protection from that deliberate misconduct which is not. (42) A prosecutor knows he should never engage in deliberate misconduct-that is to say, it should never be his design and conscious objective to commit what he recognizes to be misconduct. Under Bauder/Peterson, if he does so with the conscious objective to provoke a mistrial, or with a conscious disregard for the substantial risk it would cause a mistrial, double jeopardy protections will apply. Either state of mind can be established (or refuted) by an express assertion from the prosecutor, or by evidence of the circumstances surrounding his misconduct such as those that we enumerated in Peterson. (43) The degree of risk that the prosecutor's deliberate misconduct will result in a mistrial is largely a function of the amount of unfair prejudice it injects into the proceedings. The more unfair prejudice his deliberate misconduct injects, the more compelling will be the inference that he was aware of the risk (because it was, objectively speaking, more obvious), and consciously disregarded it. (44) This standard is not so amorphous that it cannot fairly be imposed upon responsible prosecutors.

E. Trial Court Will Stop Granting Mistrials

The majority fears that the overly "broad" standard in Bauder will cause trial courts to unduly hesitate to grant meritorious mistrials on account of the jeopardy consequences. (45) I do not believe the Bauder standard, especially as solidified in Peterson, is so much broader than that of Oregon v. Kennedy that it will substantially increase whatever public or media pressure trial courts feel to eschew meritorious mistrials. In any event, I do not share the majority's (and the Kennedy Court's) cynical distrust of trial judges to follow their oaths to uphold the law. (46) A conscientious trial court should always exercise its discretion to grant any motion for mistrial that it fairly judges to be meritorious, regardless of the potential for later double jeopardy consequences. The presumption that we should institutionalize in our case law is that a trial court will do so, not that it will not. (47)

The majority observes that this tendency it perceives in trial courts to want to avoid mistrials could have been "ameliorate[d]." (48) We could have held, in Davis and Mitchell, that double jeopardy protections also apply when a conviction is reversed on appeal due to the failure of the trial court to grant a meritorious mistrial following misconduct that the prosecutor committed with conscious disregard of the substantial risk that it would cause a mistrial. Such a holding would have created at least some disincentive for trial courts to avoid granting meritorious mistrials. (49) If I shared the majority's premise that we cannot trust trial courts to follow the law, this observation would cause me to question the correctness of our decisions in Davis and Mitchell, not the correctness of our decisions in Bauder and Peterson.

F. Bauder Has Proven Unworkable

The majority documents at some length the "messy jurisprudence flowing from Bauder." (50) It is true that, since Bauder, the Court has not always been entirely consistent in its articulation of the standard. (51) But a certain amount of fine-tuning is inevitable in the evolution of decisional law. (52) I do not understand the majority to hold that our most recent clarification was a failure-in fact, quite the opposite, since it is at least acknowledged that what Bauder meant by "recklessness" was firmly nailed down in Ex parte Peterson. (53) I cannot agree that a case barely three years old (Peterson) ought to be overruled on the ground that it has proven unworkable. We had no problems applying it in our recent decision in Ex parte Wheeler. (54) In that case we overruled the court of appeals and reinstated the trial court's ruling, which had denied double jeopardy relief. The only real point of contention between this Court and the court of appeals was whether the court of appeals had erred in failing to give proper deference to the trial court's application of the Bauder/Peterson standard. (55) There was no confusion evident at any level of the proceedings as to the substance of that standard. At this point, only time can tell whether further "refinement" will be necessary. (56) I cannot fathom the majority's haste and determination to dispatch a standard so soon after we have managed, at least with apparent success, to work the kinks out of it.

IV. APPLICATION OF BAUDER/PETERSON

We originally remanded this cause to the court of appeals for its reconsideration in light of Peterson, which had come down after the court of appeals' original opinion. (57) Thus, the court of appeals was the first to conduct an analysis under the refined Peterson standard. The court of appeals meticulously applied the Peterson factors to conclude that our state constitutional jeopardy protection applied to bar retrial. In its petition and its brief on the merits, the State disagrees with the court of appeals' conclusion, but does not identify any substantial flaw in its application of the law as expounded in Peterson. I do not find any, and would therefore affirm its judgment.

CONCLUSION

The majority's bottom-line seems to be that the Bauder/Peterson standard is too broad, and not adequately tethered to legitimate double jeopardy principles. (58) But, as I have endeavored to develop in Part II of this opinion, the doctrinal basis for that standard is more than evident enough, and it embodies an eminently reasonable construction of Article I, Section 14, our state constitutional jeopardy provision. I therefore dissent to Part IV of the Court's opinion and to its disposition of the case. I would proceed to the State's third ground for review and hold that the court of appeals did not err in its application of the Bauder/Peterson standard. Because the Court's disposition instead moots that inquiry, I respectfully dissent.

Filed: January 10, 2007

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1. 921 S.W.2d 696 (Tex. Crim. App. 1996).

2.
Olson v. State, 484 S.W.2d 756, 762 (Tex. Crim. App. 1969). See also Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991); Bauder v. State, supra, at 700-01 (Clinton, J., concurring).

3. 982 S.W.2d 431 (Tex. Crim. App. 1998).

4. Tex. Const. art. I, § 14 ("No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.").

5.
Wade v. Hunter, 336 U.S. 684, 689 (1949).

6. 456 U.S. 667 (1982).

7. Slip op. at 63.

8. That precedent is less than "ideal" is no basis for overruling it, even when construing constitutional law, in which context
stare decisis carries the least weight. Dickerson v. United States, 530 U.S. 428, 443 (2000).

9.
Powell v. State, 17 Tex. Ct. App. 345 (1884).

10.
Wade v. Hunter, supra. See also Crist v. Bretz, 437 U.S. 28, 31 (1978) ("The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury."); id., at 45-47 (Powell, J., dissenting) ("defendant's valued right to have his trial completed by a particular tribunal" was first developed as constitutional doctrine by state courts during 19th century, and only later acknowledged by the Supreme Court in Wade).

11.
Benton v. Maryland, 395 U.S. 784 (1969).

12.
E.g., Chvojka v. State, 582 S.W.2d 828 (Tex. Crim. App. 1979); Anderson v. State, 635 S.W.2d 722 (Tex. Crim. App. 1982); Collins v. State, 640 S.W.2d 288 (Tex. Crim. App. 1982); Crawford v. State, 703 S.W.2d 655 (Tex. Crim. App. 1986).

13. Slip op. at 33.

14. 400 U.S. 470, 485 n. 12 (1971) ("[W]here a defendant's mistrial motion is necessitated by judicial or prosecutorial impropriety designed to avoid an acquittal, reprosecution may well be barred.").

15. 424 U.S. 600, 609 (1976) ("The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of [judicial or prosecutorial] error.").

16. 434 U.S. 497, 508 (1978) ("[T]he strictest [constitutional] scrutiny is appropriate . . . when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused.").

17. 336 U.S. at 689.

18.
Id. at 505.

19.
United States v. Dinitz, supra.

20.
Id. at 608.

21.
Id. at 609.

22.
See Oregon v. Kennedy, supra, at 689 (Stevens, J., concurring in the judgment) (it is sufficient to invoke double jeopardy protections that "the court is persuaded that egregious prosecutorial misconduct has rendered unmeaningful the defendant's choice to continue or to abort the proceedings").

23.
Arizona v. Washington, supra, at 505.

24. 456 U.S. at 676.

25. 921 S.W.2d at 699.

26. Other state courts, both before and after our holding in
Bauder, have construed their own state constitutional jeopardy provisions more protectively than Oregon v. Kennedy construed the Fifth Amendment protection, each essentially finding that an intent to goad the defendant into a mistrial is not the only degree of prosecutorial culpability sufficient to trigger double jeopardy protection. E.g., State v. Kennedy, 295 Ore. 260, 666 P.2d 1316 (1983); Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261 (1984); Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992); State v. Breit, 122 N.M. 655, 930 P.2d 792 (1996); State v. Rogan, 91 Haw. 405, 984 P.2d 1231 (1999); People v. Batts, 30 Cal. 4th 660, 68 P.3d 357, 134 Cal. Rptr. 2d 67 (2003).

27.
See Oregon v. Kennedy, supra, at 686, 689-690 (Stevens, J., concurring in the judgment).

28. Slip op. at 41.

29. In
Ex parte Peterson, 117 S.W.3d 804, 817 (Tex. Crim. App. 2003), we elevated the level of prosecutorial culpability to "conscious disregard for a substantial risk that" the prosecutor's deliberate misconduct would provoke a mistrial. (Emphasis added.) I have no quarrel whatsoever with this adjustment to the standard, and I joined the per curiam majority in Peterson.

30.
See Powell v. State, supra, at 351.

31. Slip op. at 42.

32. Slip op. at 40.

33.
See Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 Wash. U. L. Q. 713, 811-817 (1999) (state cases extending state constitutional jeopardy protections to cover lesser degrees of prosecutorial culpability than Oregon v. Kennedy found to have jeopardy implications for Fifth Amendment purposes "really are responding to the broader problem of finding an effective means to punish prosecutorial misconduct").

34. Slip op. at 42-43, 50-52, 63-64.

35. 957 S.W.2d 9 (Tex. Crim. App. 1997).

36. 977 S.W.2d 575 (Tex. Crim. App. 1997).

37.
See Rick A. Bierschbach, Note, One Bite at the Apple: Reversals of Convictions Tainted by Prosecutorial Misconduct and the Ban on Double Jeopardy, 94 Mich. L. Rev. 1346 (1996).

38.
See Ex parte Davis, supra, at 13 ("Applicant has not directed us to any cases . . . where the Supreme Court has explicitly extended Oregon v. Kennedy to apply to instances where verdicts of guilty have been reversed on appeal due to prosecutorial misconduct, and therefore holding retrials as jeopardy barred."); Ex parte Mitchell, supra, at 579 & 580 ("Appellant does not direct us to any cases where the Supreme Court has explicitly extended Oregon v. Kennedy to apply to instances where verdicts of guilty have been reversed on appeal, due in whole or in part to prosecutorial misconduct, and thereby holding retrials as jeopardy barred.") ("Only where the prosecutor's intentional, and deliberate misconduct goads the accused into moving for a mistrial-and that motion is granted-is the accused's right to be tried to verdict by the first tribunal, a right afforded to him by the double jeopardy clause of the Fifth Amendment, violated.").

39. Slip op. at 46-48.

40. 117 S.W.3d at 816-817.

41. Slip op. at 48-50.

42. Slip op. at 50.

43. 117 S.W.3d at 818-19.

44. This is not to say that the fact finder could not, under some circumstances, reasonably conclude that the prosecutor was simply unaware of the substantial risk, even though an ordinary prosecutor ought to have been aware of it, and his failure to perceive it constitutes a gross deviation from the standard of care that an ordinary prosecutor would exercise under the circumstances.
See Tex. Pen. Code § 6.03(d). To borrow from what we said in Peterson, supra, at 818: "just as a dog knows the difference between being kicked and being stumbled over, [prosecutors] can distinguish between intentional or reckless conduct and inadvertent or negligent mistakes."

45. Slip op. at 50-52.

46.
See Oregon v. Kennedy, supra, at 687 n. 22 (Stevens, J. concurring in the judgment) (complaining that the majority's assumption that trial courts will be deterred from granting meritorious mistrials is "irrational").

47. Moreover, the argument that the
Bauder standard will hurt defendants more than help them because it will make trial courts reluctant to grant meritorious mistrials was squarely raised in Presiding Judge McCormack's dissenting opinion. 921 S.W.2d at 704. The Court considered this argument at the time and rejected it.

48. Slip op. at 51.

49.
Id. at 51-52.

50. Slip op. at 52-59.

51.
Id. at 56-57. See Ex parte Peterson, supra, at 823-25, 829-30 (Hervey, J., dissenting).

52. One need look no further than
Oregon v. Kennedy itself to see that it often takes the Supreme Court multiple opinions to hone a constitutional standard. In Kennedy the Supreme Court rejected language from a number of earlier opinions that would have provided federal jeopardy protection for mistrials caused by prosecutorial "overreaching." 456 U.S. at 677-79.

53. Slip op. at 59.

54. 203 S.W.3d 317 (Tex. Crim. App. 2006).

55.
Id. at 325-26.

56. Slip op. at 63.

57.
Lewis v. State, 165 S.W.3d at 381-82.

58. Slip op. at 62-3.

there are material issues of fact regarding her claims of slander, libel, intentional infliction of emotional distress, negligence, and for exemplary

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NUMBER 13-05-257-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



KIM WILLIS, Appellant,


v.


VICTOR KIMMEL, Appellee.



On appeal from the 151st District Court

of Harris County, Texas.



MEMORANDUM OPINION


Before Justices Rodriguez, Garza, and Benavides

Memorandum Opinion by Justice Rodriguez


This is an appeal from a no-evidence summary judgment entered against appellant, Kim Willis, and in favor of appellee, Victor Kimmel. By five issues, Willis contends material fact issues remain on all claims. We affirm, in part, and reverse and remand, in part.

I. Background

Willis filed suit against Kimmel for defamation, intentional infliction of emotional distress, negligence, and exemplary damages alleging Kimmel had falsely accused her of forging his signature on a check. Kimmel filed a no-evidence motion for summary judgment asserting that Willis provided no evidence for at least one or more elements of each claim. Willis filed a response supported by her affidavit with exhibits. Kimmel replied and objected to Willis's evidence. The trial court did not rule on Kimmel's objections. Considering the no-evidence motion for summary judgment, the response, the reply, and the objections, the trial court granted Kimmel's no-evidence motion for summary judgment. This appeal ensued. (1)

II. Summary Judgment Evidence

On appeal, Kimmel generally contends that Willis's affidavit is inadmissible because her conclusory statements provide no support for her contentions and represent no summary judgment proof. (2) A conclusory statement "is one that does not provide the underlying facts to support the conclusion." See Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.-Houston [1st Dist.] 1997, no writ) (citing Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam)); see AMS Constr. Co. v. Warm Springs Rehab. Found., 94 S.W.3d 152, 157 (Tex. App.-Corpus Christi 2002, no pet.). "An affidavit that is conclusory is substantively defective," and such objections may be raised for the first time on appeal. Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.-Dallas 2004, pet. denied); AMS, 94 S.W.3d at 157. Such defects are not waived by failing to obtain a ruling on objections in the trial court. Brown, 145 S.W.3d at 751. Thus, in this case, Kimmel's complaints regarding conclusory statements are properly before this Court, and we will address his challenge to the summary judgment evidence before we address the merits of this appeal.

A. Willis's Affidavit and Exhibits

Willis supported her response to Kimmel's no-evidence motion for summary judgment with her four-page affidavit and accompanying exhibits. The exhibits included a copy of the check at issue, copies of two cover letters from Kimmel's attorney to Chase Bank (the Bank) enclosing bank forms signed by Kimmel, and a copy of an unsigned letter from the Bank addressed to Kimmel.

In her affidavit, Willis stated that she was competent to make the affidavit and had personal knowledge of the facts and events stated therein. Willis related that she and Kimmel had a relationship where they saw each other frequently over the course of four years beginning in 1998. They shared concerns regarding their relationships with their children. Kimmel offered to help Willis financially. Willis, a single parent, accepted. Kimmel gave Willis money in the form of checks or cash. Willis considered the money gifts, not loans.

According to her affidavit, on September 2, 2002, Kimmel wrote a $2200 check on his account at the Bank where Willis was employed. Willis stated that Kimmel signed the check and that she cashed it at the Bank. Shortly thereafter, the Bank notified Willis that it was informed by Kimmel that Willis had forged his signature on the check. Willis affied that Kimmel's accusations that she committed a criminal offense and forged his signature were false.

The Bank froze Willis's accounts. Management personnel at the Bank interviewed Willis regarding the allegations and told her she would be fired if the allegations were true. Willis described how she was affected emotionally, mentally, and physically. She also explained that her daily routine was interrupted and that she had financial concerns because she did not have access to her bank accounts.

In her affidavit, Willis stated that approximately four months later Kimmel admitted to the Bank that the signature on the check was his. She also stated that when Kimmel made his allegation he knew the information was false because he had signed the check and delivered it to her, like a number of other checks he had given her during the course of their relationship. Finally, Willis stated that when she asked Kimmel why he had lied about her, he alluded to family reasons saying that "he had to do what he had to do."

Attached to her affidavit were cover letters from Kimmel's attorney to the Bank. Each letter enclosed a completed bank form signed by Kimmel. Attached to the October 3, 2002 cover letter was the Bank's fraud management services statement of fact form. On the form, Kimmel stated that the check did not bear his signature and that Willis completed it, made it payable to herself in the amount of $2200, and forged his signature on the check. Kimmel indicated that the check was prepared and signed without his knowledge and consent. On a Bank affidavit form attached to a November 1, 2002 cover letter from Kimmel's attorney, Kimmel described the check at issue as having an unauthorized signature. In addition, Willis attached a copy of a January 17, 2003 unsigned letter from the Bank to Kimmel. In the letter, the Bank explained that because Kimmel had later informed the Bank that the signature on the check was his, it was denying his claim.

B. Kimmel's Challenges to the Evidence

In his no-evidence motion for summary judgment, Kimmel specifically complained that the following statements were conclusory:

1. Mr. Kimmel accused me of having committed a criminal offense;

2. At the time Mr. Kimmel made his allegation that I had committed the criminal offense of forgery of his check he knew that this information was false;

3. I recall shortly after I was informed by Chase Bank of Mr. Kimmel's allegations against me asking Mr. Kimmel why he had lied about me. Mr. Kimmel simply responded by alluding to family reasons that he had to do what he had to do;


4. On January 17, 2003, Mr. Kimmel admitted in a telephone conversation with Chase Bank fraud investigators that the signature on the check no. 16636 payable to me was his signature; and


5. I was emotionally devastated. I was mentally tormented. I was gravely depressed to have been falsely accused and to have this accusation reported to my employer. I became physically ill from sleepless nights, worry, fret, anxiety, irritability, and massive headaches, all as a result of the untrue allegations made against me by Mr. Kimmel. My daily routine of life was severely interrupted. Moreover, I was deeply troubled by my not having access to my bank accounts to cover my living expenses and the ability to take care of and provide for my daughter.

On appeal, Kimmel complains of no other conclusory statements. Moreover, no objections were raised regarding the substance of the exhibits to Willis's affidavit. We will, therefore, limit our review to the five statements or groups of statements that were specifically complained of in his motion.

1. Accusations of Forgery

In the first and second statements set out above, Willis states that Kimmel accused her of forgery, a criminal offense. See Tex. Pen. Code Ann. § 32.21(b) (Vernon Supp. 2006). These statements are supported by the Bank's fraud management services statement-of-fact form attached to Willis's affidavit. On that form, Kimmel, himself, explained that "[Willis] completed this check making it payable to herself for the amount of $2,200.00 and forged [his] signature on same." Additionally, in her affidavit, Willis stated that the Bank notified her that Kimmel had informed it that she had forged his signature on the check. Also attached to Willis's affidavit was the October 3, 2002 letter to the Bank from Kimmel's attorney, explaining that she was returning the statement of fact that the Bank had asked Kimmel to complete "when he reported a forged check."


3. Knowing Information Given Was False

In the second and third statements, the conclusion that Kimmel knew the information he gave the Bank was false and lied about Willis is supported by the Bank's January letter. In that letter, the Bank stated that Kimmel later informed it that he had signed the check. This statement is also supported by the following unobjected-to statements that appear in Willis's affidavit:

Mr. Kimmel knew that this information was false because he knew that he had given me the check, which he had signed, during one of our meetings at his home on or about September 2, 2002. This check was like a number of other checks he had given me during the course of our relationship.

2. Kimmel's Signature

In the fourth statement, Kimmel challenges Willis's statement that "Kimmel admitted . . . that the signature on the check . . . was his signature" as conclusory. This statement is supported by the underlying fact that "[d]uring the course of [its] investigation, [Kimmel] informed [the Bank] that the signature on the Check was [his] signature." This unchallenged statement appears in the Bank's January 17, 2003 letter to Kimmel. Willis attached this letter to her affidavit.

Accordingly, we conclude Willis provided underlying facts in her affidavit and its exhibits to support the alleged conclusions in the first four groups of statements set out above. These portions of the evidence are properly before the Court. See Rizkallah, 952 S.W.2d at 587.


4. Injuries

The fifth set of objected-to statements identified above involve Willis's alleged injuries. In her petition, Willis alleged damages in the form of public humiliation, ridicule, mental anguish, and severe emotional distress. In her affidavit, Willis supported these allegations by stating that she was emotionally devastated, mentally tormented, and gravely depressed. These conclusory phrases regarding Willis's emotions, however, are not supported by underlying facts. See Rizkallah, 952 S.W.2d at 587; cf. Gonzalez v. Temple-Inland Mortg. Corp., 28 S.W.3d 622, 626 (Tex. App.-San Antonio 2002, no pet.) (holding statements in affidavit were too conclusory to defeat a no-evidence motion for summary judgment on mental anguish damages); El Dorado Motors, Inc. v. Koch, 168 S.W.3d 360, 367 (Tex. App.-Dallas 2005, no pet.) (affirming no-evidence summary judgment rendered on damages ground because expert deposition testimony on lost profits failed to show basis of opinions and conclusions). Only her statement that she was deeply troubled is arguably supported by the fact that she did not have access to her bank accounts to cover living expenses and take care of her daughter.

Willis also affied that she was physically ill from sleepless nights, worry, fret, anxiety, irritability, and massive headaches and that her daily routine of life was severely interrupted. Arguably, the statement that she was physically ill is based on her insomnia and massive headaches and possibly her anxiety and irritability. However, "worry" and "fret" are statements not supported by underlying facts in this instance.

Therefore, except for the statements that she was deeply troubled and that she was physically ill is based on her insomnia and massive headaches, and possibly her anxiety and irritability, the statements from Willis's affidavit, identified as number 5 above, do not constitute competent summary judgment evidence. We will not consider those portions of her affidavit. Conclusory statements, however, do not negate the entire affidavit. See AMS, 94 S.W.3d at 158 (citing Muhm v. Davis, 580 S.W.2d 98, 102 (Tex. Civ. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.)). Therefore, we will consider the remaining summary judgment evidence filed in support of Willis's response.

III. Merits of the Appeal

By five issues, Willis contends that there are material issues of fact regarding her claims of slander, libel, intentional infliction of emotional distress, negligence, and for exemplary damages.

A. Standard of Review

A no-evidence motion for summary judgment asserts there is no evidence of one or more essential elements of claims upon which the opposing party would have the burden of proof at trial. Tex. R. Civ. P. 1661(i). The motion must specify the elements as to which there is no evidence. Id.; Patino v. Complete Tire, Inc., 158 S.W.3d 655, 659-60 (Tex. App.-Dallas 2005, pet. denied).

A summary judgment motion pursuant to Tex. R. Civ. P. 1661(i) is essentially a motion for a pretrial directed verdict. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Once such a motion is filed, the burden shifts to the nonmoving party to present evidence raising an issue of material fact as to the elements specified in the motion. Id.; W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002).


Mack Trucks v. Tame, 206 S.W.3d 572, 581-82 (Tex. 2006).

A no-evidence motion for summary judgment is properly granted only if the non-movant fails to bring forth more than a scintilla of probative evidence raising a genuine issue of material fact as to the challenged element of the claims. See Tex. R. Civ. P. 1661(i); AMS, 94 S.W.3d at 159. "More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." In re Estate of Flores, 76 S.W.3d 624, 629 (Tex. App.-Corpus Christi 2002, no pet.) (citing Havner, 953 S.W.2d at 711). "Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact." Id. (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). When a trial court does not state the basis for its decision in its summary judgment order, as in this case, the appellate court must uphold the order if any of the grounds advanced in the motion are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam).

B. Slander and Libel

In her first two issues, Willis contends that the trial court erred in granting the no-evidence summary judgment on her slander and libel claims because material fact issues remain on all elements of the defamation claims. We agree.

In both slander and libel the issues are whether the utterance was made, if it was false, if it damaged the complainant, and if the speaker had any privilege. Peshak v. Greer, 13 S.W.3d 421, 426 (Tex. App.-Corpus Christi 2000, no pet.) (citing Restatement (Second) of Torts § 558 (1977)); see Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 2005) (defining libel, in relevant part, as (1) a defamation expressed in writing that (2) tends to injure a living person's reputation and (3) thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue or reputation); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995) (providing that slander is (1) a defamatory statement that (2) is published to a third person or orally communicated (3) without legal justification or excuse). In his no-evidence motion for summary judgment, Kimmel specifically asserted that there was no evidence (1) that a defamatory statement was made about Willis, (2) that it was communicated to a third person, (3) that it tended to injure Willis, and (4) that it was made without legal excuse. A false statement will typically be classified as defamatory per se if it charges a person with the commission of a crime. Leyendecker & Assoc., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984).

1. False Statement

Orally Communicated or Published to Third Person


First, in her summary judgment evidence, Willis affied that the Bank notified her that Kimmel informed it that she had forged his signature on a check. In an October 3, 2002 letter to the Bank, Kimmel's attorney also noted that Kimmel had reported the forged check to the Bank. Moreover, enclosed with the letter was the Bank's statement-of-fact form signed by Kimmel. In that written statement of fact Kimmel informed the Bank that Willis had forged his signature on the check and that the check was prepared and signed without his knowledge. The cover letter and completed statement-of-fact form were attached to Willis's affidavit. Additionally, as set out in the Bank's January 17th letter attached to Willis's affidavit, during the course of the Bank's investigation Kimmel admitted to the Bank that the signature on the check was his.

We conclude this evidence would enable reasonable and fair-minded people to differ in their conclusions regarding whether Kimmel communicated a defamatory oral statement that was false to a third party alleging that Willis had forged Kimmel's name on a check and whether Kimmel also expressed it in writing. See In re Estate of Flores, 76 S.W.3d at 629 (citing Havner, 953 S.W.2d at 711). Thus, more than a scintilla of evidence exists on this element. See id.

2. Defamatory Statement Tended to Injure Willis

In this case, Kimmel charged Willis with forgery. That statement is classified as defamatory per se. See Leyendecker, 683 S.W.2d at 374. Because statements that are defamatory per se are actionable without proof of injury, no such proof was required. See Bentley v. Bunton, 94 S.W.3d 561, 605 (Tex. 2002); see also Knox v. Taylor, 992 S.W.2d 40, 50 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (providing that a statement is considered defamatory per se if words are so obviously hurtful to plaintiff's reputation that they require no proof of their injurious character to make them actionable).

3. Defamatory Statement Made Without Legal Excuse

Finally, Willis asserts that Kimmel's statement was made without legal excuse. She contends that the lack of legal excuse is evidenced by Kimmel's admission that the signature on the subject check was his. In response, Kimmel argues that the trial court properly granted him summary judgment because there was no evidence that would negate his claim of qualified privilege under section 4.406 of the Texas Business and Commerce Code. See Tex. Bus. & Comm. Code Ann. § 4.406 (Vernon 2002) (requiring a bank account holder to act with "reasonable promptness in examining the statement or the items to determine whether any payment was not authorized . . . because a purported signature by or on behalf of the customer was not authorized"). Kimmel asserted this qualified privilege as an affirmative defense to Willis's defamation claim. See Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 92 (Tex. App.-Dallas 1996, writ denied) ("Legal excuse includes the defense of qualified privilege.").

However, Kimmel was not entitled to a no-evidence summary judgment on his qualified privilege affirmative defense. See Keszler v. Mem'l Med. Ctr., 105 S.W.3d 122, 128 (Tex. App.-Corpus Christi 2003, no pet.) (citing Tex. R. Civ. P. 1661(i) (providing that a party may move for a no-evidence summary judgment on claims or defenses on which an adverse party has the burden of proof)); see Battin v. Samaniego, 23 S.W.3d 183, 185-86 (Tex. App.-El Paso 2000, pet. denied) (holding that the defendant was not entitled to a no-evidence summary judgment on its own affirmative defense). "Rather its application is limited to an essential element of a claim or defense on which the adverse party would have the burden of proof at trial." Id. Because a no-evidence motion for summary judgment places the burden on the non-movant to present enough evidence to be entitled to a trial, a party moving for summary judgment on an affirmative defense cannot bring a no-evidence motion for summary judgment on that defense. Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 43 (Tex. App.-Houston [14th Dist.] 2000, pet. denied).

In this no-evidence summary judgment proceeding, Willis is under no obligation to bring forth proof against Kimmel's affirmative defense. Rather, it is Kimmel's burden to establish all elements of the defense as a matter of law. Kimmel's summary judgment cannot be sustained on this ground. (3)

Therefore, reviewing the evidence in the light most favorable to Willis, crediting evidence favorable to Willis if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not, see Mack Trucks, 206 S.W.3d at 581-82, we conclude that Willis's affidavit with supporting exhibits provided more than a scintilla of evidence to establish that Kimmel orally, and through correspondence, communicated to the Bank that Willis forged one of his checks and that the statement was false. See Tex. R. Civ. P. 1661(i); AMS, 94 S.W.3d at 159. Determining the statement was defamatory per se, no evidence of injuries was needed. Moreover, Kimmel was not entitled to a no-evidence summary judgment on his own affirmative defense. Therefore, we conclude that the trial court erred in granting Kimmel's no-evidence motion for summary judgment on Willis's defamation claims. We sustain issues one and two.

B. Exemplary Damages Based on Malice

In his no-evidence motion for summary judgment, Kimmel claimed that Willis did not produce clear and convincing evidence that he had any malicious intent to injure or harm Willis at any time, an intent that would support Willis's claim for exemplary damages. However, when this suit was filed on October 18, 2002, malice was defined, in the alternative, as follows:

(A) a specific intent by the defendant to cause substantial injury to the claimant; or

(B) an act or omission:


(i) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and


(ii) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.


Act of April 11, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 Tex. Gen. Laws 108, 109. (4) Kimmel's no-evidence motion did not challenge the elements of section B. Yet, in her first amended original petition, Willis asserted that "Kimmel's conduct . . . amounts to gross negligence and evidences a conscious indifference to the rights and welfare of Willis." It is arguable that Willis could establish malice premised on section B above. We conclude, therefore, that the trial court erred in granting Kimmel's no-evidence motion for summary judgment on Willis's claim for exemplary damages. The fifth issue is sustained.C. Intentional Infliction of Emotional Distress

By her third issue, Willis contends that there is a material fact issue on her intentional infliction of emotional distress claim that prevented the trial court from granting Kimmel's no-evidence motion for summary judgment, specifically that she she suffered severe emotional distress, the fourth element of this cause of action. (5) See Tex. Farm Bureau Mut. Ins. Cas. v. Sears, 84 S.W.3d 604, 710 (Tex. 2002) (setting out the elements of intentional infliction of emotional distress as (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's conduct proximately caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was severe). We have already determined that Willis's summary judgment evidence, except for the statements that she was deeply troubled and that she was physically ill based on her insomnia and massive headaches, and possibly her anxiety and irritability, provided only conclusory statements regarding her injuries, statements which are not properly before this Court. Viewing the remaining evidence regarding emotional distress in the light most favorable to Willis and disregarding all contrary evidence and inferences, we cannot conclude that Willis brought forth more than a scintilla of probative evidence that raised a genuine issue of material fact that she suffered severe emotional distress. See GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618 (setting out that severe emotional distress is "distress that is so severe that no reasonable person could be expected to endure it"). We cannot conclude that the alleged emotional distress supported by the evidence rises to the level that reasonable minds could disagree whether it was extreme and outrageous. See Tex. R. Civ. P. 1661(i). Willis's third issue is overruled.

D. Negligence

In her fourth issue, Willis contends that the trial court's judgment on Kimmel's no-evidence motion for summary judgment on her negligence claims was improper. In accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Willis neither develops this contention nor provides citations to the record or to authority in support of this contention. Because this issue is inadequately briefed, we overrule Willis's fourth issue.

IV. Conclusion

The judgment of the trial court is affirmed, in part, as to Willis's intentional infliction of emotional distress and negligence claims and is reversed and remanded, in part, as to her defamation and exemplary damage claims, for proceedings consistent with this opinion.


NELDA V. RODRIGUEZ

Justice


Memorandum Opinion delivered and

filed this 7th day of June, 2007.




1. Willis's claims were severed from a remaining counterclaim, and the notice of appeal was filed in the severed action.

2. Kimmel complains of factual conclusions not legal conclusions.

3. In his second amended original answer, Kimmel also pleaded that "such statements were privileged, including . . . common interest privilege." See Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 92 (Tex. App.-Dallas 1996, writ denied) ("A privilege will be granted to statements that occur under circumstances wherein any one of several persons having a common interest in a particular subject matter may reasonably believe that facts exist that another, sharing that common interest, is entitled to know."). In addition, Kimmel claimed a duty to report pursuant to the terms and conditions of the account holder agreement between Kimmel and the Bank. He does not urge these matters on appeal. Nonetheless, the result is the same. Kimmel had the burden of proving the privileges asserted. Thus, a no-evidence summary judgment could not be entered in Kimmel's favor on this basis.

4. "In 2003, the Legislature removed subpart (B) from the malice definition, recodifying it as the definition of 'gross negligence.'" USA Truck, Inc. v. West, 189 S.W.3d 904, 907 (Tex. App.-Texarkana 2006, pet. denied) (citing Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11) (Vernon Supp. 2006); see Dillard Dep't Stores, Inc. v. Silva, 148 S.W.3d 370, 373 (Tex. 2004)) (per curiam). Because this cause of action was filed prior to September 1, 2003, the predecessor statute applies. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 847, 887, 898-899 (applicable to actions filed on or after September 1, 2003).

5. Kimmel challenged this element in his no-evidence motion for summary judgment.