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Torts No. 04-02-00458-CV, 6/11/2003. Click here for the full text of this decision FACTS: The appellee filed suit against the appellants, Wal-Mart and Wayne Cruickshank, alleging claims of malicious prosecution, intentional infliction of emotional distress and negligent hiring. At trial, the jury found that Wal-Mart and Cruickshank maliciously prosecuted Irene Aguilera and intentionally inflicted emotional distress upon her. The jury also found that Wal-Mart was negligent in its hiring of Cruickshank. HOLDING: Reversed and rendered. There are seven elements of a malicious prosecution claim in Texas: 1. the commencement of a criminal prosecution against the plaintiff; 2. initiation or procurement of the prosecution by the defendant; 3. termination of the prosecution in the plaintiff’s favor; 4. the plaintiff’s innocence; 5. the lack of probable cause for the proceedings; 6. malice in filing the charge; and 7. damage suffered by the plaintiff. Richey v. Brookshire Grocery Co., 952 S.W.2d 515 (Tex. 1997). According to Wal-Mart and Cruickshank, there is legally and factually insufficient evidence 1. that Cruickshank initiated or procured Aguilera’s prosecution; 2. that the criminal case terminated in Aguilera’s favor; 3. that Cruickshank lacked probable cause; and 4. that Cruickshank acted with malice. The court holds that there is legally insufficient evidence that Cruickshank lacked probable cause. In the context of malicious prosecution, probable cause is defined as the existence of those facts and circumstances that would excite a belief in a reasonable person, acting on the facts within his knowledge, that the person charged was guilty of a crime. Akin v. Dahl, 661 S.W.2d 917 (Tex. 1983). The probable cause inquiry asks whether a reasonable person would believe a crime had been committed, given the facts as the defendant honestly and reasonably believed them to be before the criminal proceedings were instituted. Id. The question is not what the actual facts were, but what the defendant honestly and reasonably believed the facts to be. Closs v. Goose Creek Consol. ISD, 874 S.W.2d 859 (Tex. App. – Texarkana 1994, no writ). When the facts underlying the defendant’s decision to prosecute are disputed, the trier of fact is charged with resolving conflicts in the evidence to determine if probable cause exists. If the facts are uncontested, then the question of whether defendant acted based upon probable cause becomes a question of law to be decided by the court. The appellees argue that Cruickshank acted without probable cause because he unreasonably failed to review a Wal-Mart videotape that he admits would have shown the perpetrators of the crime. While it is true that Cruickshank could have reviewed the videotape to confirm the identity of the suspects, the proper inquiry is not whether Cruickshank was negligent in failing to view the videotape; the proper inquiry is whether a reasonable person would have believed that Aguilera had committed the offense of shoplifting. It is undisputed that Cruickshank witnessed individuals shoplifting and that after looking at the picture of Aguilera in the photo line-up, he thought that Aguilera was the woman he saw aiding juveniles to shoplift. These undisputed facts amount to probable cause. The appellees also argue that there is evidence of probable cause because the jury could infer that Cruickshank withheld the videotape from the police. It is immaterial, however, to the probable cause inquiry that the defendant did not fully and fairly disclose all material information. Richey v. Brookshire Grocery Co., 952 S.W.2d 515 (Tex. 1997). OPINION: Angelini, J.; before L�pez, C.J., Angelini and Speedlin, JJ. DISSENT: L�pez, C.J. “The reason the jury could have chosen to simply disbelieve that Cruickshank honestly and reasonably believed that Aguilera was present during the offense could not be more heavily documented in the record. Cruickshank lied at his deposition about graduating from high school. Cruickshank lied at his deposition about receiving certain awards and medals while serving in the Navy. Cruickshank lied about needing authorization from the President of the United States before disclosing the reason for receiving one of those awards. Cruickshank admitted that he lied on his Wal-Mart application. Cruickshank’s initial statement to the police identified only one other female assisting two juveniles with the theft by placing clothes on top of merchandise in a shopping cart. Cruickshank did not identify Aguilera’s alleged role in acting as a lookout until his second statement was taken two days later. The jury could have questioned whether Cruickshank honestly believed that the additional individuals identified in his second statement were present given Cruickshank’s failure to initially mention them and given that Cruickshank’s performance was evaluated in part based on the number of apprehensions he made. Finally, the jury could have believed that Cruickshank lied about giving Officer Abbott the videotape and about not viewing the videotape. In sum, the jury had every reason to find that Cruickshank’s testimony about the facts within his knowledge was false and that the facts that were within Cruickshank’s knowledge would not excite a belief in a reasonable person that Aguilera was guilty of a crime. “Because I believe the majority passes upon the witnesses’ credibility and substitutes its judgment for that of the jury, I respectfully dissent.”

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