Mark Rodriguez, Victor Trevino III, and Thomas Trevino v. Richard "Rick" Gonzales ( 2018 )

Reversed, Remanded, and Opinion and Concurring and Dissenting Opinion
filed December 18, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00667-CV
MARK RODRIGUEZ, VICTOR TREVINO III, AND THOMAS TREVINO,
Appellants
V.
RICHARD “RICK” GONZALES, Appellee
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2016-87024
OPINION
While Republican Richard “Rick” Gonzales and Democrat Silvia Trevino
were opposing candidates in the general election for the position of Harris County
Constable, Precinct 6, Trevino’s cousin Mark Rodriguez and her sons Victor Trevino
III and Thomas Trevino (collectively, the Trevino Parties)1 published negative
statements about Gonzales on social media. Gonzales sued them for defamation,
and pursuant to the Texas Citizens Participation Act (“the TCPA”), the Trevino
Parties moved to dismiss Gonzales’s claims. See TEX. CIV. PRAC. & REM. CODE
ANN. §§ 27.001–.011 (West 2015). In this interlocutory appeal, the Trevino Parties
challenge the denial of their motion.
We conclude the Trevino Parties established that the TCPA applies to
Gonzales’s claims, thereby shifting the burden to Gonzales to establish a prima facie
case for each essential element of his claims. We further hold that Gonzales is a
limited-purpose public figure, and thus, he was required to establish a prima facie
case of actual malice for the challenged publications. We conclude that he failed to
do so, and in some instances, additionally failed to show that the statement at issue
was false. We therefore reverse the judgment and remand the cause for
determination by the trial court of the amount of sanctions, court costs, reasonable
attorney’s fees, and other expenses, if any, to be awarded to each of the Trevino
Parties, and for rendition of judgment awarding such amounts and dismissing the
case.
I. BURDEN-SHIFTING UNDER THE TCPA
The TCPA was passed to balance the right to bring a meritorious lawsuit for
a demonstrable injury against the need to safeguard the rights to speak freely, to
associate freely, and to petition. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.002.
If a plaintiff brings a legal action that relates to, or is in response to, the defendant’s
exercise of the right of free speech, association, or petition, the TCPA allows the
defendant to quickly move for dismissal of the action. See id. § 27.003. Filing the
1
Because we will be discussing three individuals with the last name Trevino, we will use
their first names when it is necessary to refer to one of them individually.
2
motion suspends discovery unless the trial court for good cause permits “specified
and limited discovery relevant to the motion.” Id. §§ 27.003(c), 27.006(b).
At the hearing on the motion, the movant has the initial burden to show by a
preponderance of the evidence that the action is based on, relates to, or is in response
to the movant’s exercise of the right of free speech, the right to petition, or the right
of association. Id. § 27.005(b).
If this requirement is satisfied, the trial court must dismiss the claim at issue
unless the respondent establishes “by clear and specific evidence a prima facie case
for each essential element of the claim in question.” Id. § 27.005(c). The expression
prima facie case “refers to evidence sufficient as a matter of law to establish a given
fact if it is not rebutted or contradicted.” In re Lipsky, 460 S.W.3d 579, 590 (Tex.
2015) (orig. proceeding). Stated differently, it is the “minimum quantum of
evidence necessary to support a rational inference that the allegation of fact is true.”
Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)
(per curiam)). The movant for dismissal under the TCPA has no burden to disprove
the existence of a prima facie case. Indeed, the movant cannot do so, because
“[p]rima facie proof is not subject to rebuttal, cross-examination, impeachment[,] or
even disproof.” KBMT Operating Co., LLC v. Toledo, 492 S.W.3d 710, 721 (Tex.
2016) (quoting Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993) (second
alteration in original)).
If the person who brought the action establishes a prima facie case for each
element of the claim, then the burden shifts back to the movant to establish, by a
preponderance of the evidence, each essential element of a valid defense. TEX. CIV.
PRAC. & REM. CODE ANN. § 27.005(d).
Finally, if the trial court grants the motion to dismiss, it must award costs,
reasonable attorneys’ fees, and other expenses of defending against the action “as
3
justice and equity may require.” Id. § 27.009(a). The trial court also must sanction
the plaintiff in an amount “sufficient to deter the party who brought the legal action
from bringing similar actions.” Id.
Because the trial court denied the Trevino Parties’ motion to dismiss in its
entirety, the trial court presumably determined, as to each claim, either that (a) the
Trevino Parties failed to meet their burden to prove that the TCPA applies, or
(b) Gonzales satisfied his burden to establish a prima facie case for each element of
the claim and the Trevino Parties failed to prove a valid defense.
The Trevino Parties’ first two issues correspond to these burdens. They argue
in their first issue that they proved that the TCPA applies, and they contend in their
second issue that Gonzales failed to establish a prima facie case for each element of
each of his defamation claims. We review the trial court’s ruling on the motion to
dismiss de novo. Hearst Newspapers, LLC v. Status Lounge, Inc., 541 S.W.3d 881,
887 (Tex. App.—Houston [14th Dist.] 2017, no pet.). If the Trevino Parties prevail
in their first two issues, then we will reach their third issue, in which they contend
that the trial court erred in failing to award them attorney’s fees and sanctions.
II. THE TREVINO PARTIES’ BURDEN
To meet their initial burden to demonstrate that the TCPA applies, the Trevino
Parties stated in their motion to dismiss that Gonzales’s claims against them were
based on, related to, or in response to their exercise of the right of free speech on a
matter of public concern. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a). A
“matter of public concern” is defined in the TCPA to include “an issue related
to . . . a public official or public figure.” Id. § 27.001(7)(D). The Trevino Parties
argued that Gonzales’s candidacy in the contested election for constable made him
a public figure. We agree that, for the purpose of this case, Gonzales is a public
figure.
4
In the context of defamation claims, there are two types of “public figures.”
“All-purpose” or “general purpose” public figures are those “who have achieved
such pervasive fame or notoriety that they become public figures for all purposes
and in all contexts.” WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)
(citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)). In contrast, a
“limited-purpose” public figure is a public figure only “for a limited range of issues
surrounding a particular public controversy.” Id.To determine whether a defamation claimant is a limited-purpose public
figure, Texas courts apply the following three-part test:
(1) the controversy at issue must be public both in the sense that
people are discussing it and people other than the immediate
participants in the controversy are likely to feel the impact of its
resolution;
(2) the plaintiff must have more than a trivial or tangential role in the
controversy; and
(3) the alleged defamation must be germane to the plaintiff’s
participation in the controversy.
Neely v. Wilson, 418 S.W.3d 52, 70 (Tex. 2013) (citing WFAA-TV, 978 S.W.2d at
571).
Here, all of these requirements are satisfied. The statements at issue all were
made within a few weeks of the general election, and the contested election for the
position of constable of Harris County Precinct 6 was a public controversy that
people were actually discussing at the time of these events. As a candidate, Gonzales
had more than a trivial or tangential role in the controversy, and the resolution of the
contested race necessarily would have an impact beyond the candidates themselves.
Finally, the allegedly defamatory statements concerned Gonzales’s fitness for office,
and thus, the statements were germane to Gonzales’s “participation in the
controversy.”
5
Because Gonzales is a public figure for the limited purpose of his candidacy
for constable, the Trevino Parties’ statements impugning his fitness for that office
are statements concerning an issue related to a public figure. As such, the statements
were, by definition, statements about a “matter of public concern.” See TEX. CIV.
PRAC. & REM. CODE ANN. § 27.001(7)(D). We therefore conclude that the Trevino
Parties met their initial burden to establish by a preponderance of the evidence that
the TCPA applies to Gonzales’s claims, and we sustain the Trevino Parties’ first
issue.
III. GONZALES’S BURDEN
Because the Trevino Parties established that the TCPA applies to Gonzales’s
defamation claims, the burden shifted to Gonzales to “establish[] by clear and
specific evidence a prima facie case for each essential element of the claim in
question.” Id. § 27.005(c). The elements that a defamation plaintiff must prove are
that (a) the defendant published a false statement of fact; (b) the statement defamed
the plaintiff; (c) the defendant acted with actual malice, if the plaintiff is a public
figure or a public official, or negligently, if the plaintiff is a private individual; and
(d) the statement proximately caused damages. See Anderson v. Durant, 550 S.W.3d
605, 617–18 (Tex. 2018); WFAA-TV, 978 S.W.2d at 571; Landry’s, Inc. v. Animal
Legal Def. Fund, No. 14-17-00207-CV, __S.W.3d__, 2018 WL 5075116, at *4 (Tex.
App.—Houston [14th Dist.] Oct. 18, 2018, no pet. h.).
Regarding the first element, a publication is false if it “is not substantially
true.” Neely, 418 S.W.3d at 63. A publication is not substantially true if, taken as a
whole, it is more damaging to the plaintiff’s reputation than a truthful publication
would have been. See id. In other words, we determine falsity by first ascertaining
the “gist” of the publication. See id. at 63–64. A publication’s meaning is
determined “by construing the publication or broadcast ‘as a whole in light of the
6
surrounding circumstances based upon how a person of ordinary intelligence would
perceive it.’” KBMT Operating Co., 492 S.W.3d at 721 (quoting Turner v. KTRK
Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000)).
The second element is concerned with whether the publication defamed the
plaintiff. The record establishes, and the parties do not dispute, that the publications
refer to Gonzales, so this element is satisfied if the publications were defamatory. A
publication may be defamatory per se or defamatory per quod. A statement that is
defamatory per se is one that “is so obviously hurtful to a plaintiff’s reputation that
the jury may presume general damages.” Dall. Morning News, Inc. v. Tatum, 554
S.W.3d 614, 626 (Tex. 2018) (quoting Hancock v. Variyam, 400 S.W.3d 59, 63–64
(Tex. 2013)). For the purpose of this discussion, we assume, without deciding, that
Gonzales produced prima facie evidence that the Trevino Parties’ publications were
defamatory per se such that general damages are presumed. We therefore do not
further analyze the second and fourth elements of Gonzales’s defamation claims.
The remaining element concerns fault. As a limited-purpose public figure,
Gonzales was required to prove that the Trevino Parties published their statements
with actual malice. “Actual malice” in the context of a defamation claim refers not
to bad motive or ill will but to the knowledge of, or reckless disregard for, the falsity
of the statement. Greer v. Abraham, 489 S.W.3d 440, 443 (Tex. 2016). “[A]ctual
malice cannot be based on a misinterpretation of ambiguous facts that is not
unreasonably erroneous.” See Bentley v. Bunton, 94 S.W.3d 561, 594 (Tex. 2002).
“Reckless disregard” requires more than negligence. See id. at 591. It “is a
subjective standard focusing on the defendant’s conduct and state of mind.”
Landry’s, 2018 WL 5075116, at *4 (citing Bentley, 94 S.W.3d at 591). “Proof of
reckless disregard requires evidence that the defendant had serious doubts about the
7
truth of the publication, or stated differently, that the defendant had a high degree of
awareness of the probable falsity of the statement.” Id.
A. The Relationship Between Defamation Per Se and Actual Malice
Gonzales asserts that if a publication is defamatory per se then the defendant
is liable without regard to fault. Because he contends that each of the Trevino
Parties’ publications is defamatory per se, he reasons that he is not required to prove
actual malice.
As previously explained, whether a statement is defamatory per se affects the
need to prove one of the other elements of a defamation claim, but the affected
element is that of damages, not actual malice. See Tatum, 554 S.W.3d at 626;
Hancock, 400 S.W.3d at 63–64. We overrule this argument as to each publication
and each defendant, and we instead determine whether Gonzales established a prima
facie case of the elements of falsity and actual malice as to each of his claims.
B. Publication by Mark Rodriguez
In response to a post by a person supporting Gonzales’s candidacy, Rodriguez
posted the following on the social-media site “Nextdoor Eastwood”:
I think the community spoke loud and clear... Sylvia Trevino received.
I heard it was 53 or 54 S percent totaling 4700hundred votes.. it sounds
like you’re bitter for something.. never-the-less good luck to your
candid it... nevertheless he’s no preacher .. public intoxication under a
theft investigation which is still ongoing.... spouse beating not paying
child support... the good thing he was a cop if not I’m sure the list would
go on and on and on.. you don’t need a microscope to find that stuff
We have italicized the language that Gonzales contends is a false statement of fact
published with actual malice.
8
1. “Under a theft investigation which is still ongoing”
There is no evidence that the statement that Gonzales was “under a theft
investigation which is still ongoing” was false at the time of the publication. If we
consider only the evidence favorable to Gonzales from among the exhibits filed in
the clerk’s record, we have only Gonzales’s affidavit testimony,
I was not at the center of a theft investigation . . . .
Mark Rodriguez stated in a post after the election that I was at the center
of a theft investigation, had engaged in ‘spouse beating’ and had failed
to pay child support. I never engaged in ‘spouse beating’ and I always
paid child support for my two daughters, Stephanie Lebron and Terra
Gonzales. Furthermore, there is no court filing alleging that I failed to
pay child support.
Gonzales does not identify the statement in which Rodriguez allegedly stated that
Gonzales was at the “center” of a theft investigation, and although Gonzales denies
that he was at the “center” of a theft investigation, he does not deny that he was
under an ongoing theft investigation at the time of Rodriguez’s publication.
Gonzales also does not identify the date of Rodriguez’s publication, or whether it
was after the primary or the general election. Gonzales’s affidavit contains no
evidence from which we can infer that, at the time of the statements, Rodriguez had
a high degree of awareness that the statement was probably false.
In their appellate briefs, however, the parties have relied on additional
documentary evidence that appears in the back of a volume of the reporter’s record.
At the initial hearing on the motion to dismiss, counsel for Gonzales referred to
exhibits A through F, and counsel for the Trevino Parties objected that the trial court
was required to rule based on the pleadings and the affidavits, but the trial court ruled
9
on neither the offer nor the objection.2 Inasmuch as these documents were discussed
at the hearing and both parties rely on them in their briefing, we will assume, as the
parties have done, that the documents were properly considered by the trial court
and that we may do the same.3 When we consider this material, four documents
make the context of the theft allegation apparent. Three of the four documents are
emails with the subject line “lawsuit” sent from Victoriano Trevino to Victor
Trevino on January 26, 2017—five weeks after this suit was filed.4
The first email contains an apparent screenshot from a mobile phone showing
an undated social-media post by Gonzales. In the post, Gonzales states, “Helping
Gloria Alvarez Rodriguez deliver hundreds of school backpacks to our future
leaders.” The post is accompanied by three pictures. One picture shows a pick-up
truck with what appear to be boxes in the bed of the vehicle, and the other two are
photos of three people in a room with stacks of backpacks.
The second email shows a screenshot of an another undated social-media post
by Gonzales. The post includes a photograph of Gonzales leaning against a vehicle
with an open hatch-back showing that the back of the vehicle is filled with
backpacks. The photograph is accompanied by the text, “People are pulling up and
I keep loading their vehicles with backpacks. Just kidding. These are being
delivered. I did give some to several who pulled up. After all it’s for the kids, right.
Where’s my help Gloria?”
2
The documents in the reporter’s record are not labeled A through F but instead are bates-
labeled “DEFENDANTS 000001” through “DEFENDANTS 000021.” One page additionally has
an exhibit sticker labeled “D,” and another page is hand-labeled “exhibit B2.”
3
We do not, however, consider Gonzales’s arguments based on documents found nowhere
in the record, including his assertion that two of the Trevino Parties requested and reviewed his
personnel file from the Houston Police Department before making their respective social-media
posts.
4
Gonzales filed this lawsuit on December 20, 2016.
10
The third document is from the Houston Police Department and is labeled
“Administrative Information.” Under an illegible heading, the document states,
“Major Offenders – Police Impersona/Swindle,” and under the heading “Summary,”
the document states, “MAJOR OFFENDERS DIVISION WAS ASSIGNED BY
THE MAJOR OFFICE TO INVESTIGATE A POSSIBLE CASE OF CITY
PROPERTY THEFT THAT WAS POSSIBLY MISAPPROPRIATED.” The dates
September 2, 2016 and October 26, 2016 appear on the document under illegible
headings.
The fourth document is another “lawsuit” email containing a screenshot of
another undated social-media post by Gonzales. The post states as follows:
The Trevino camp has failed again in their attempt to derail me. During
the time we were distributing free backpacks to the children, the
Trevino camp pressured Councilmember Karla Cisneros to file a theft
report, without any bases or evidence. They even called Channel 2,
Ryan Korsgard to make a story out of their false accusation. Ryan
Korsgard called me to ask questions. No wrong doing was found or it
would have been a news story. The Trevino’s are evil people in my
opinion and they will do and say anything to win the election.
The HPD case is closed. HPD knew it was a bogus complaint from the
beginning because of the volunteers who gave out the backpacks are
outstanding citizens of the community. . . .
In sum, Gonzales acknowledges distributing backpacks and that a third party
filed a theft report alleging that the backpacks were stolen. It is undisputed that the
alleged theft was investigated. There is no evidence that the investigation was closed
when Rodriguez published his statement, no evidence that Rodriguez knew that the
investigation was no longer ongoing, and no evidence that Rodriguez was aware that
his publication was probably false. As to this statement, Gonzales failed to produce
evidence establishing a prima facie case of the elements of falsity and of actual
malice.
11
2. “Spouse beating”
Concerning Rodriguez’s allegation of “spouse beating,” Gonzales’s only
evidence is the statement in his affidavit, “I never engaged in ‘spouse beating.’”
Although this is evidence of falsity, Gonzales produced no evidence of actual malice.
Gonzales argues that actual malice can be inferred simply because no criminal
complaint has been filed against him for domestic violence and because Rodriguez
supported an opposing candidate in an election. But a prima facie proof of actual
malice requires more evidence than that. Our precedent in Hoang v. Thinh Dat
Nguyen, No. 14-14-00942-CV, 2016 WL 4533417 (Tex. App.—Houston [14th
Dist.] Aug. 30, 2016, no pet.) (mem. op.) illustrates this.
In 2010, Houston City Councilmember Aloysius Hoang told Thinh Dat
Nguyen, the editor of a Vietnamese-language publication, that he, Hoang, was
considering an invitation to visit Vietnam. See id. at *1. Nguyen allegedly
threatened to use his newspaper to “destroy” Hoang if he went. See id. Two years
later, Nguyen welcomed the Vice Minister of Vietnam when he visited Houston.
Three protests were organized in front of Nguyen’s home and a bomb was placed
there. See id.
Hoang lost his bid for reelection to the city council in 2013, but he won the
Republican primary for a position as a state representative in 2014. See id. From
2010 until Hoang sued Nguyen after the primary election in 2014, Nguyen’s paper
repeatedly labeled Hoang “a Vietnamese Communist, an agent of Vietnamese
Communist[s], or a spy of the Vietnamese Communist[s].” See id. Nguyen’s paper
additionally reported that Hoang’s father had committed suicide because Hoang was
a Communist, though according Hoang, his father was killed in a pedestrian-
automobile collision. See id. & n.3. Nguyen also stated that Hoang himself had
made the bomb placed at Hoang’s home in 2012 “to gain attention.” See id.
12
Hoang received no response when he (a) asked Nguyen for a public debate,
(b) asked Nguyen to stop making offensive statements about him, (c) offered to give
the paper a public interview, (d) told Nguyen that Hoang was entitled to equal space
in the publication to correct the facts, and (e) told the paper’s owner to “take
appropriate steps.” See id. at *3. Although Hoang “swore the false statements were
factors leading to his failed re-election bid in 2013 and ‘it could be the same for 2014
election,’” we agreed with the trial court that the foregoing was no evidence of actual
malice. See id.
The facts of this case do not require a different result. Gonzales stated in his
response to the motion to dismiss that the Trevino Parties’ “personal relationship to
Silvia Trevino and the context of their statements constitute circumstantial evidence
of their state of mind.” Even if we were to agree that Rodriguez had an injurious
motive simply because his cousin and Gonzales were opposing candidates for the
same office, an injurious motive alone is insufficient to establish a prima facie case
of actual malice. See Bentley, 94 S.W.3d at 596.
Gonzales additionally states that the Trevino Parties had “no reasonable basis
for such statements. . . . The [Trevino Parties] do not articulate any basis for their
belief that Gonzales committed these crimes or unlawful acts . . . .” That argument
fails for two independent reasons. First, the burden to “establish[] by clear and
specific evidence a prima facie case for each essential element of the claim in
question” rested on Gonzales alone. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(c). And second, the argument is factually incorrect. The Trevino Parties
did articulate the bases for their respective statements. Indeed, Gonzales
successfully moved for permission to conduct discovery for the express purpose of
identifying the sources of the information stated or repeated in the Trevino Parties’
13
publications, and he relied on those discovery responses at the hearing on the motion
to dismiss.
The discovery responses identifying the sources of the Trevino Parties’
information included an email containing an apparent screenshot of a mobile phone
display showing a part of an undated social-media post by Gonzales and a response
by Stella Cevallos-Vinson. The post by Gonzales begins, “This morning I had a
great interview with Telemundo reporter Antonio Hernandez.” The remainder of his
post is cut off. Cevallos-Vinson replied,
Since you are so adamant on belittling your opponent Silvia R. Trevino
and her great husband Mr. Victor Trevino, did you by any chance
advice him on this interview of your history of DOMESTIC
VIOLENCE RICHARD?????....probably not huh???? Precinct 6
people don’t know you like I and your 1st wife know you Richard , and
you know damn well what I’m talking about. . . . . . . so STOP trying to
fool these people and lie to them that they should vote for you, you
know damn well that your not fit to be Constable of precinct 6
[lines possibly were cut off here, and the screenshot continues on another page]
as hell aren’t fit to represent PRECINCT 6. I would be glad to be
interviewed by anyone so they will know the true Richard Gonzales
.........your pathetic
There is no evidence supporting an inference that Rodriguez knew Cevallos-
Vinson falsely alleged that Gonzales committed domestic violence against his first
wife, or that Rodriguez had a high degree of awareness that the allegation was
probably false. Gonzales points out that, as the Supreme Court of Texas has stated,
“inherently improbable assertions and statements made on information that is
obviously dubious may show actual malice,”5 but Cevallos-Vinson’s statements are
neither, nor does Gonzales contend otherwise. We therefore conclude that Gonzales
5
Bentley, 94 S.W.3d at 596.
14
failed to produce evidence establishing a prima facie case of actual malice regarding
this statement.
3. “Not paying child support”
Our analysis regarding Rodriguez’s statement about Gonzales “not paying
child support” is nearly identical to our analysis concerning his statement about
“spouse beating.” Here, too, Gonzales produced evidence of falsity, but no evidence
of actual malice.
Gonzales asserts that Rodriguez had no external sources for this statement,
but he cites no evidence in support of this contention. He then makes the contrary
assertion that Rodriguez published his statement concerning child support after
seeing Cevallos-Vinson’s post in which she said of Gonzales, “I know he was way
behind on child support when I dated him.” Cevallos-Vinson’s statement is neither
inherently improbable nor obviously dubious. Thus, Gonzales failed to establish a
prima facie case of actual malice for any part of Rodriguez’s publication.
We accordingly reverse the portion of the trial court’s ruling denying the
motion to dismiss as to Rodriguez.
C. Publication by Victor Trevino III
Victor posted the following on social media, apparently in response to a post
by another user:6
Mr. O’Sullivan, . . . [A]nytime you attempt to say something negative
about my parents, I will continue to remind Nextdoor readers of the
FACTS about your Republican candidate.
FACTS such as your Republican candidate is the ONLY candidate that
has a CONVICTION of a Criminal Offense on his record. FACTS such
6
Due to the publication’s length, we have abridged the first paragraph and omitted the
fourth and fifth paragraphs.
15
as he was ARRESTED, CHARGED, and CONVICTED of Public
Intoxication. FACTS such as your Republican candidate is the only
candidate with two separate incidents which he was Reprimanded and
Disciplined while with HPD for Official Misconduct. FACTS such as
your Republican candidate is the only candidate which his previous
girlfriend/ex wife filed on him while with HPD for Domestic Violence.
Which now even more women are coming forward to verify on
Facebook. And of course the FACT that your Republican candidate is
currently at the center of a Criminal Investigation by HPD for storing
and distributing stolen merchandise. A crime in which even your
Republican candidate has acknowledged he has been questioned for
regarding him admitting on his Facebook that he stored and distributed
stolen merchandise.
Regarding proof you asked for recently on another post, your
Republican candidate has made countless baseless allegations against
my parents, all of which they have emphatically denied, which you and
your Republican candidate have never provided any proof but I don’t
have to show proof when your Republican candidate hasn’t even denied
the validity of any of my comments or allegations I have made against
him because he knows they are TRUE, and more importantly he knows
I have the documentation to prove it if he ever thought about denying
them.
Again, we have italicized the language that Gonzales contends are false statements
of fact published with actual malice.
1. “Previous girlfriend/ex wife filed on him . . . for Domestic Violence”
Gonzales attested that he never engaged in “spouse beating” and that no
complaint has ever been filed against him for domestic violence. Most of his
arguments regarding this statement focus on the absence of a filed complaint. The
“gist” of the publication, however, is that Gonzales is unfit to be constable because
he has been convicted of one criminal offense, disciplined for official misconduct,
and accused of, or investigated for, additional offenses. Regarding domestic
violence, the implicit accusation is that Gonzales committed the crime of domestic
violence—a statement that is defamatory per se, regardless of whether anyone filed
16
a criminal complaint. Gonzales denies that he ever dated Cevallos-Vinson, but he
does not deny that he committed domestic violence against a girlfriend; thus, even
if no complaint was filed, Gonzales has failed to show that the statement is not
substantially true. He therefore failed to meet his burden to establish by clear and
specific evidence a prima facie case for the element of falsity.
In addition, Gonzales failed to establish a prima facie case of actual malice.
Gonzales relied in part on Victor’s declaration, “I based my November 2, 2016 post
on Nextdoor Eastwood on information received from other residents of East End,
Houston, Texas, as well as Facebook posts by Stella Cevallos-Vinson and Plaintiff
Richard Gonzales, which I believed to be true.” At the hearing on the motion to
dismiss, Gonzales relied on the Trevino Parties’ discovery responses documenting
some of these sources. The discovery responses included the previously discussed
post by Stella Cevallos-Vinson accusing Gonzales of domestic violence, as well as
the following string of Facebook posts:
Joe Joey
***BREAKING NEWS***
Republican Candidate Richard Gonzales has been ARRESTED,
CHARGED, and CONVICTED of Public Intoxication.
Now it finally makes since why Republican Candidate Richard
Gonzales is always trying so hard to deflect any and all attention away
from him and onto his opponent. It turns out Republican Candidate
Richard Gonzales is the ONLY actual candidate for Precinct 6
Constable that has ever been ARRESTED CHARGED, and
CONVICTED of a Criminal Offense
Now the reported allegations of Drunken Domestic Violence are
starting to make a lot more sense. . . .
Juan Munoz WOW!!!! This was news....in 1978!! C mon man,
dig up some stuff that happened in this century! It looks like
17
desperation to me. I’m sure someone can dig up something on
you when you were a teenager.
....
Joe Joey Stella Cevallos-vinson explain to Mr. Juan Munoz
what kind of Hell Rick Gonzeles put you through. Since I appear
desperate
Juan Munoz I don’t know the lady. I don’t know her story. If
something actually happened (I’m not saying it didn’t I wasn’t
there), there were legal avenues she could have pursued. There
are always 2 sides to every story.
John Guajardo II Domestic violence is domestic violence
regardless especially in the great state of Texas.
Juan Munoz Being stupid is being stupid in any state.
John Guajardo II Exactly. Too bad people like Rick don’t
understand that concept
Joe Joey Totally see your point Mr. Juan Munoz . . . . These are
real claims from someone who once had a relationship with Rick.
I am requesting an open records act to show proof that this
occurred.
....
Stella Cevallos-vinson He was not a teenager, and being
abusive to a woman, being physically and or verbally is not ok.
It’s obvious that regardless you Juan Munoz are for that piece of
[expletive]
Juan Munoz Stella Cevallos-vinson did you report this to the
police? Regardless of who I’m for, wrong is wrong. But to come
out now and bring it up, I hope you understand how it looks
suspicious
Stella Cevallos-vinson Of course it might look suspicious but
I’m not one to make false claims or accusations on anyone. And
no it wasn’t reported to police ... stupidity on my part and I was
still dating him. I know the truth and so does he.
....
Juan Guajardo II . . . . Never have we had a candidate as
dangerous as Rick Gonzales run for office. . . .
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....
Stella Cevallos-vinson Well we just won’t worry about him
because he will NOT be elected.... Thank God.... and when you
say dangerous, by all means is he ever dangerous7
There is no evidence that Victor actually knew that such statements explicitly
or implicitly accusing Gonzales of domestic violence were false, and the statements
themselves are neither inherently improbable nor obviously dubious.
2. “Currently at the center of a Criminal Investigation”
Our analysis of this statement by Victor mirrors our analysis of Rodriguez’s
statement that Gonzales was “under a theft investigation that is still ongoing.”
Gonzales attested, “I was not at the center of a theft investigation,”8 but he admits
both that City Councilmember Karla Cisneros filed a theft report claiming that the
backpacks he distributed were stolen and that the Houston Police Department
investigated the complaint. Because Gonzales produced no evidence that the
investigation concluded before Victor posted this statement on November 2, 2016,
Gonzales failed to show that Victor’s statement is not substantially true. Stated
differently, Gonzales failed to produce clear and specific evidence establishing a
prima facie case of the element of falsity.
Gonzales also produced no evidence of actual malice. There is no evidence
that when Victor posted this statement, he knew that the investigation had concluded
that he seriously doubted that the investigation was ongoing.
7
Emphasis added.
8
Emphasis added.
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3. “Acknowledged he has been questioned [about] admitting on his
Facebook that he stored and distributed stolen merchandise”
Regarding this statement, Gonzales attested that he has never admitted to
storing and distributing stolen merchandise. His affidavit testimony is clear and
specific evidence establishing a prima facie case of the element of falsity.
The element of actual malice is more problematic. It is true that Gonzales
posted pictures of a room containing stacks of backpacks and posted photos and texts
admitting that he was distributing the backpacks. Gonzales also admitted in another
post that a member of the Houston City Council had filed a police report claiming
that the backpacks were stolen. Gonzales stated in the latter post that the complaint
was baseless and was filed at the instigation of the “Trevino camp,” but “[t]he mere
fact that a defamation defendant knows that a public official has denied harmful
allegations or offered an alternative explanation of events is not evidence that the
defendant doubted the allegations.” Hoang, 2016 WL 4533417, at *3 (quoting Hotze
v. Miller, 361 S.W.3d 707, 718 (Tex. App.—Tyler 2012, pet. denied)). It
nevertheless remains true that Gonzales did admit on Facebook that he distributed
the backpacks; he did admit that Karla Cisneros filed a police report claiming that
the backpacks were stolen; and he did admit that a reporter questioned him about
these events. Given the absence of evidence that Victor knew Cisneros’s theft
allegations were false or had a high degree of awareness that the allegations were
probably false, it cannot be said that Gonzales established a prima facie case of the
element of actual malice.
We reverse the portion of the trial court’s ruling denying the motion to dismiss
as to Victor.
D. Thomas Trevino
In Thomas Trevino’s social-media post, he wrote as follows:
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The republican Rick Gonzalez likes to point out everyones criminal records.
Heres one for you Rick, why dont u put ur criminal past agains my moms
criminal past. My mom has no criminal past/ Record. In my opinion your
violation of non payment of child support is worse than any felony. What a
disgrace.-T #VoteSilviaTrevino
Although it is undisputed that Gonzales has a criminal record for public
intoxication, Gonzales contends that by juxtaposing an allusion to his criminal
record with the statement opining that non-payment of child support is worse than
any felony,” Thomas implied that Gonzales has a criminal conviction for
intentionally or knowingly failing to pay child support. See TEX. PENAL CODE ANN.
§ 25.05 (West 2011). In any event, we assume, without deciding, that the statement
is defamatory per se.
Gonzales and his daughter Stephanie Lebron each attested that Gonzales
“always paid child support”; thus, Gonzales produced clear and specific evidence
establishing a prima facie case for the element of falsity.
The same cannot be said about the element of actual malice. There is no
evidence that Thomas knew the statement was false or made the statement with a
high degree of awareness of its probable falsity.
As evidence of actual malice, Gonzales relied on Thomas’s declaration, which
was attached to the Trevino Parties’ reply to Gonzales’s response to the motion to
dismiss. In his declaration, Thomas stated, “I based my November 1, 2016 post on
Facebook on information received from Plaintiff Richard Gonzales’s daughter,
Stephanie Gonzales Lebron, which I believed to be true.” Gonzales also relied on
Lebron’s affidavit, in which she stated that she went to high school with Thomas and
occasionally sees him at social events, but she has never told Thomas or anyone else
that Gonzales failed to pay child support. Such evidence, however, does not rise to
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the level of actual malice. See Gonzales v. Hearst Corp., 930 S.W.2d 275, 283 (Tex.
App.—Houston [14th Dist.] 1996, no writ) (where reporter spoke with multiple
police officers to verify the incident reported, one could reasonably infer that the
reporter was mistaken or negligent but could not reasonably infer that the reporter
willfully published false information). Because Thomas does not identify the
“information received” from Lebron, we do not know whether he claims that Lebron
affirmatively stated that Gonzales failed to pay child support when due or whether
Thomas erroneously inferred this from something else that Lebron said.
We reverse the portion of the trial court’s ruling denying the motion to dismiss
as to Thomas. Having reversed the ruling as to each of the Trevino Parties, we
sustain their second issue.
IV. DISMISSAL AWARDS
Having sustained each of the Trevino Parties’ first two issues, we now reach
their final issue, in which they argue that the trial court erred in failing to award them
attorney’s fees and sanctions as required under the TCPA. If a claim is dismissed
under the TCPA, the trial court is statutorily required to award to the movant “court
costs, reasonable attorney’s fees, and other expenses incurred in defending against
the legal action as justice and equity may require,” as well as “sanctions against the
party who brought the legal action as the court determines sufficient to deter the
party who brought the legal action from bringing similar actions described in this
chapter.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a). Because the trial court
erred in denying the motion to dismiss as to each of the Trevino Parties, the trial
court also erred in failing to make dismissal awards to each of the Trevino Parties as
required by section 27.009. We accordingly sustain the Trevino Parties’ third issue.
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V. CONCLUSION
The Trevino Parties met their burden to show that the TCPA applies to
Gonzales, and as a limited-purpose public figure, Gonzales bore the burden to
produce clear and specific evidence establishing a prima facie case for each element
of his defamation claims, including the elements of falsity and actual malice.
Because he failed to satisfy that burden, we reverse the trial court’s denial of the
Trevino Parties’ motion to dismiss, and we remand the cause for the trial court (a) to
determine the amount of attorney’s fees, court costs, and sanctions to award to each
of the Trevino Parties, (b) to determine the extent to which justice and equity require
an award to any of the Trevino Parties of “other expenses incurred in defending
against the legal action,” and (c) to render a judgment making such awards and
dismissing the action. See id.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Jamison (Frost,
C.J., concurring and dissenting).
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