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Click here for the full text of this decision FACTS: The appellant, Mary Lee Hudspeth Gunnels, challenges a take-nothing summary judgment granted in favor of the appellees, the city of Brownfield, Richard Curtis Fletcher and Earl Elrod, on her claims for malicious prosecution and violation of her constitutional rights based on two criminal prosecutions for violations of City of Brownfield ordinances. HOLDING: Affirmed. In Richey v. Brookshire Grocery Co., 952 S.W.2d 515 (Tex. 1997), the court reaffirmed the definition of probable cause in the malicious prosecution context as “the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor [complainant], that the person charged was guilty of the crime for which he was prosecuted.” Restated, the probable-cause determination asks whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be. Malice is defined as ill will, evil motive, gross indifference, or reckless disregard of the rights of others. King v. Graham, 47 S.W.3d 595 (Tex.App. � San Antonio 2001, no pet.). It may be established by direct or circumstantial evidence. Thrift v. Hubbard, 974 S.W.2d 70 (Tex.App. � San Antonio 1998, pet. denied). The appellant cites Bass v. Metzger, 569 S.W.2d 917 (Tex.Civ.App. � Corpus Christi 1978, writ ref’d n.r.e.), for the proposition that malice can be inferred from the initiation of a prosecution without probable cause. Fletcher and Elrod counter that Biering v. First National Bank, 7 S.W. 90 (Tex. 1888), held the “two elements are distinct.” In Biering, the court actually held that lack of probable cause could not be inferred from proof of malice, but noted that malice may be inferred from proof that there was no probable cause. With respect to probable cause, a malicious prosecution case begins with the presumption that the defendant has acted reasonably and in good faith and had probable cause to initiate the prosecution. The plaintiff’s initial burden on that element is to produce evidence that “the motives, grounds, beliefs, and other evidence” on which the defendant acted did not constitute probable cause. Faced with Fletcher and Elrod’s no-evidence motion for summary judgment on the absence of probable cause element, then, appellant was required to point out evidence to rebut that initial presumption. Significantly, although appellant argues the general proposition that probable cause was lacking for her prosecution pursuant to the two complaints, she does not expressly assert that Fletcher or Elrod did not act on the basis of the flyer Fletcher found on his windshield, nor does she expressly challenge the sufficiency of the flyer to constitute probable cause for either complaint. With regard to the prosecution for distributing or scattering handbills, appellant argues that the complaint was not based on eyewitness evidence that she placed the flyers on cars. However she does not explain how the absence of an eyewitness is evidence of the lack of probable cause. The court finds no evidence to support this element of appellant’s claims for malicious prosecution arising from the handbill prosecution. With regard to the prosecution for the zoning violation, appellant relies on a portion of Elrod’s deposition testimony as evidence that the prosecution was brought without probable cause. The gist of appellant’s argument is that Elrod’s statement is an admission he had only a suspicion that appellant had violated the zoning ordinance and therefore did not have probable cause to file the complaint alleging she did so. The court does not agree that Elrod’s response to the question why it’s hard “in incidents like this” to obtain a search warrant amounts to such an admission, nor does the court see his statement as evidence of the absence of probable cause. Because the summary judgment record supports a finding that there is no evidence supporting an essential element of appellant’s claims for malicious prosecution, that of the absence of probable cause for the prosecution, the trial court did not err in granting Fletcher and Elrod summary judgment on those claims. The court concludes that the trial court did not err in granting summary judgment on appellant’s 42 U.S.C. �1983 claims against appellees. OPINION: Campbell, J.

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