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Moore v. Novark9/28/1995
ll and fair disclosure of the facts and circumstances known to him at the time. Coniglio, 756 S.W.2d at 744; Salazar, 682 S.W.2d at 627. Had similar language been included in the court's charge on probable cause, we would agree with Novark's contention that full and fair disclosure is subsumed in probable cause.
Instead, the charge instructed that "probable cause" means:
the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within one's knowledge that the person charged was guilty of the crime for which he was prosecuted.
This definition was expressly approved by the Texas Supreme Court in Akin v. Dahl, 661 S.W.2d at 921. This same definition of probable cause was used in Zavaleta. There, the Corpus Christi court found that "full and fair disclosure" was not included in the definition of "probable cause." Zavaleta, 827 S.W.2d at 346. The court reversed, holding that the definition of probable cause was insufficient and therefore erroneous by failing to instruct on full and fair disclosure. Id.
In Akin and the line of cases following it, the defendant actually brought the formal complaint. In this case, the defendants did not formally bring a criminal complaint, but instead furnished information to the federal authorities who used their own discretion in seeking Novark's indictment. In Zavaleta, the Corpus Christi court relied on a line of cases where the indictment was caused indirectly through the aid or cooperation of the defendant. These cases have held that under those circumstances, the defendant is not liable if he has made a full and fair disclosure of the facts to the prosecuting authorities. Zavaleta, 827 S.W.2d at 345 (citing Coniglio, 756 S.W.2d at 744; Salazar, 682 S.W.2d at 627; and Cisneros, 596 S.W.2d at 317).
The trial court defined "malice" in this case as follows:
A party acts with malice if he is actuated by wrongful motive in the institution and/or continuance of a prosecution. Wrongful motive, coupled with a wrongful act willfully done to the injury of another, constitutes legal malice.
This definition focuses on the actor's motives instead of the nature of the disclosure made. Thus, full and fair disclosure is not subsumed in the definition of malice given to the jury in this case. Finally, Novark argues the deputies did not make full and fair disclosure because they gave false statements. Thus, he contends the evidence does not support their entitlement to this instruction. We disagree. Discrepancies in the details of the deputies' statements do not establish that they are false as a matter of law. Failure to include an allegation that Schelsteder struck Bossert, the prisoner in custody, does not demonstrate lack of full disclosure as a matter of law because the deputies denied that incident occurred. In addition, Bossert may have been unable to identify who pointed the gun at him due to his intoxication at the time of the incident, or simply due to the passage of time. Reasonable minds could differ as to the truth of the deputies' statements. There is some evidence in the record to support submission of an instruction on full and fair disclosure. Defendants, as well as plaintiffs, are entitled to an affirmative submission of each theory supported by the evidence. Ahlschlager v. Remington Arms Co., 750 S.W.2d 832, 835 (Tex. App. -- Houston [14th Dist.] 1988, writ denied).
We hold that the trial court erred in refusing appellants' requested instruction on full and fair disclosure. When we review the charge as a whole, this error is compounded by the court's instruction on the causation element. By including the now rejected instru
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