The Elements of Malicious Criminal Prosecution and Civil Damages Claims
I. The Elements of Malicious Criminal Prosecution:
To recover for malicious prosecution, a plaintiff must prove: (1) a criminal proceeding was commenced against the plaintiff; (2) the defendant initiated or procured the proceeding; (3) the proceeding was terminated in the plaintiff’s favor; (4) the plaintiff was innocent of the crime charged; (5) the defendant lacked probable cause to initiate the criminal proceeding; (6) the defendant acted with malice; and (7) the plaintiff suffered damages. Id. (citing Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997)). In the present case, Plaintiff proves the following:
- On June 7, 2010, Defendants Sheriff B.B. Browning, Assistant DA Shannon Salyer had Plaintiff arrested, handcuffed, booked, mug shot, fingerprinted, incarcerated, and a criminal proceeding was commenced against Plaintiff.
- Defendants Sheriff B.B. Browning, and Assistant DA Shannon Salyer, and Judge Hope Kurtz initiated and Defendants Roberts, Koop, et al. procured the proceeding with fraudulent affidavits/complaints. Sheriff Browning, Assistant DA Salyer and Magistrate Judge Hope played active roles in starting or continuing, with malice and a lack of probable cause, the two criminal charges, procured, directed by Roberts, Cox/Koop/ARPI, et al., and aided by Jay Workman, Emily Allen, and Port Lavaca Wave. All the named Defendants were responsible in some way for the initiation or continuation of the baseless, frivolous suit, and must be held liable for malicious prosecution in the abuse or misuse of the legal process.
- The proceeding was terminated in Plaintiff’s favor on 4/24/2012 in that the DA had the two criminal cases dismissed after 23 months of undue delay without getting a public jury trial as Plaintiff had demanded in writing. The DA’s Motion to Dismiss was ORDERED, ADJUDGED, DECREED AND GRANTED by Judge Hernandez on April 24, 2012.
- Plaintiff was innocent of the crimes charged because the 87 Texas precedents he cited had clearly and convincingly demonstrated that a notice of lis pendens does not create a lien, that it is only a “Memorandum” or an “Affidavit”, that filing and refusing to release notices of lis pendens was an “absolute privilege”, that it was not a crime, and that (a) “The purpose of the lis pendens doctrine is not to give notice that a cla[i]mant has filed suit to assert the claim – only that he has a claim.” Paddock v. Williamson, 9 S.W.2d 452, 455 (Tex. Civ. App. – Beaumont 1928, writ ref’d); (b) “The act of filing the suit was absolutely privileged.” See Prappas v. Meyerland Community Improvement Association, 795 S.W.2d 794 (Tex. App.1990, reh’g of writ overruled) (filing of the lis pendens, even if not authorized by statute, is absolutely privileged and ‘does not turn on the presence or absence of good faith’); Griffin v. Rowden, 702 S.W.2d 692 (Tex.App.1985, writ ref’d n.r.e.) (lis pendens absolutely privileged). 
- Defendants Sheriff B.B. Browning, Assistant DA Shannon Salyer, Judge Hope Kurtz, et al. lacked probable cause to initiate the criminal proceeding in light of the controlling case law. Sheriff Browning, Assistant DA Salyer and Magistrate Judge Hope who began or continued the two criminal cases did not have probable cause to do so. In other words, they did not have a reasonable belief in Plaintiff’s guilt or liability. In the present case, the complaint, information, or indictment was dismissed without a plea of guilty or nolo contendere being entered; and the attorney general determines that the complaint, information, or indictment presented against the person was dismissed because: (A) the presentment was made on mistake, false information, or other similar basis, indicating absence of probable cause to believe, at the time of the dismissal, the person committed the offense. See TEX CP. CODE ANN. § 104.0035.
- The court will look at several factors: 1) the sources were unreliable; 2) a great body of case law on lis pendens was available; 3) obtaining such information required only a little effort in conducting proper legal research; 4) no opportunities were given to Plaintiff to offer an explanation; 5) Plaintiff’s reputation was totally ruined; and 6) a speedy judicial action in the original two cases was required by the 6th Amendment.
- The failure to fully investigate the facts surrounding the suit against Plaintiff is sufficient to prove a lack of probable cause. The termination of the original cases in Plaintiff’s favor proves a lack of probable cause. The 87 Texas lis pendens precedents, and Plaintiff’s numerous cases: 6:05-mc-00002, V-6-78, V-9-11 & 610-cv-00056 Chen v. Rainey filed in the Federal Court that are entitled to be reinstated pursuant to Rules Enabling Act. These facts are sufficient to allow a reasonable person to infer that Sheriff Browning, Assistant DA Salyer and Magistrate Judge Hope acted without a reasonable belief in Plaintiff’s guilt or liability in beginning or continuing the suit against Plaintiff’s filing and refusing to release the notices of lis pendens.
- Defendants Sheriff B.B. Browning, Assistant DA Shannon Salyer, Judge Hope Kurtz, et al acted with malice, invidious discrimination and selective prosecution. 
- Sheriff Browning instituted or continued the original proceeding with an improper purpose. Sheer ill will or bad faith constitutes an improper purpose, and it may be proved with facts that show that Sheriff Browning resented Plaintiff and wanted somehow to harm Plaintiff for filing a notice of lis pendens against his home and Calhoun County because he was the County’s policy maker and one of the Defendants in Plaintiff’s six Complaints filed in Cases Numbered 6:05-mc-00002, V-6-78. He certainly showed personal malice or hostility toward Plaintiff.
- Defendants were motivated by something other than the purpose of bringing Plaintiff to justice. Improper purpose usually must be inferred from facts and circumstances because most defendants deny having any improper purposes. If it is impossible to discover any apparent purpose, an improper purpose may be inferred from the lack of probable cause. See Hodges v. Gibson Products Co. Hodges v. Gibson Products Co., 811 P.2d 151 (Utah 1991); see also Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 .
- Plaintiff was deprived of his 1st, 4th, 5th, 6th, 8th, and 14th Amendment rights to “life, liberty, and property” in violation of due process, equal protection, Texas “Open Courts” policy, Plaintiff’s right to access the court for redress of grievances, and Plaintiff suffered both economic and non-economic damages, including, but not limited to, pain, suffering, mental anguish, physical and emotional distress.
- According to the Texas Supreme Court, procurement, which is the causation element of a malicious prosecution action, occurs when a person’s actions are enough to cause the prosecution, and but for the person’s actions the prosecution would not have occurred. Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 293 (Tex. 1994). A person does not procure a prosecution, however, when the decision to prosecute is left to the discretion of a law enforcement official or grand jury unless the person provides information he knows is false. Id.; King v. Graham, 126 S.W.3d 75, 78 (Tex. 2003). Roberts, Koop, et al. filed criminal complaints with the DA’s office, which caused the prosecution. But for their wrongful actions the criminal charges against Plaintiff would not have occurred.
- Roberts, being an experienced real estate attorney, Cox/Koop/ARPI, being represented by experienced attorneys, procured the prosecution because they provided information they knew or should have known was false.
- However, if a person knowingly provides false information to those responsible for procuring the prosecution, the person has procured the prosecution for purposes of a malicious prosecution action. Id. This exception is satisfied not only when actual false information is provided, but when the reporting person fails to report facts that might establish the accused is not guilty of any offense. Eans, 580 S.W.2d at 20 (holding circumstantial evidence was sufficient for jury to have concluded corporation procured prosecution where reporting persons failed to disclose material facts favorable to accused). Here, the reporting persons, Roberts, Koop, et al., failed to disclose material facts favorable to Plaintiff, particularly the 80+ Texas lis pendens cases establishing that the accused was not guilty of any criminal offense.
- A person acts with malice in a malicious prosecution case when he acts with ill will or evil motive to the injury of another, or acts in reckless disregard of the rights of another and with indifference as to whether the other person is injured so as to amount to wanton and willful action knowingly and unreasonably done. Id. Malice can be established by either direct or circumstantial evidence and may be inferred from a lack of probable cause. Thrift, 974 S.W.2d at 80. Here, the reporting persons, Roberts, Koop, et al., and all the other Defendants causing the false arrest, wrongful imprisonment, and 23 months of undue delay without a public jury trial acted with malice and with a lack of probable cause; otherwise, the two criminal charges would not have been dismissed.
- Of course a person has the legal right to report a crime. See Closs, 874 S.W.2d at 878. However, if a person reports a crime with an improper purpose, or in reckless disregard of the rights of another in a knowing and unreasonable manner, that is malice. Id. Here, reporting persons, Roberts, Koop, et al., reported the alleged crime with an improper purpose, or in reckless disregard of the rights of Plaintiff in a knowing and unreasonable manner, that is malice.
- Richey, 952 S.W.2d at 519-20 (holding that in malicious prosecution action, failing to fully and fairly disclose all relevant facts or knowingly providing false information to the DA is relevant to malicious intent of defendant); Thrift, 974 S.W.2d at 80 (holding defendant’s failure to disclose exculpatory facts was sufficient to demonstrate malice). Here, Defendants failed to fully and fairly disclose all relevant facts or knowingly provided false information to police is relevant to their malicious intent and their failure to disclose exculpatory facts was sufficient to demonstrate malice.
- A malicious prosecution action against a corporate entity may be based on an agent taking action to procure a prosecution. See Eans v. Grocery Supply Co., 580 S.W.2d 17, 21-22 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (malicious prosecution judgment upheld against corporation based on actions of corporate employees). Here, ARPI, and RROW are liable for the malicious prosecution actions that their corporate employees took to procure the prosecution.
II. Prosecutors are Liable for Giving Erroneous Advice or Making Defamatory Statements
- After having handcuffed Plaintiff, and putting him under arrest in front of Calhoun County Courthouse, and after he complained of false arrest, Sheriff Browning had his deputy Abraham and investigator take him to the D.A.’s office to get legal advice. Plaintiff was ordered to wait outside and was not allowed any opportunity to defend himself. The Assistant D.A. Salyer’s advice resulted in Plaintiff’s being booked, fingerprinted, mug shot and wrongfully imprisoned for 34 days with neither a notice nor a hearing.
- No Warrant for Arrest was shown to Plaintiff at the time of the arrest and it was put on the DA’s file sometime after the arrest and citations were only served while Plaintiff was in jail in clear violation of due process.
- In re Burns v. Reed, No., 500 U.S. 478 (1991), the Supreme Court held: A state prosecuting attorney is absolutely immune from liability for damages under § 1983 for participating in a probable cause hearing, but not for giving legal advice to the police about their conduct of an investigation, P P. 484-496 or for making defamatory statements at a press conference after a prosecution had been initiated. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). These two wrongful acts were exactly what Assistant D.A. Salyer did on June 7, 2010 in giving erroneous advice on the filing of the notices of lis pendens and in making defamatory statements against Plaintiff to Port Lavaca Wave reporters, Jay Workman and Emily Allen, after Plaintiff’s arrest, incarceration and a prosecution had been initiated.
- Advising the police in the investigative phase of a criminal case is not so “intimately associated with the judicial phase of the criminal process” that it qualifies for absolute prosecutorial immunity. Burns v. Reed, 500 U.S. 478 (1991)