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Moore v. Novark9/28/1995
bject or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result of these acts. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). Nowhere was the jury instructed as to the elements of a violation of the federal statute. We conclude that any allegations of federal conspiracy under the Ku Klux Klan Act are waived by failure to submit the issue to the jury. See Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex. 1989) (failure to submit properly worded question for inclusion in the charge waives ground of recovery). Therefore, we address only common law conspiracy in this opinion.
In our review of the jury's finding on the conspiracy claim, the evidence must show a meeting of the minds on the object or course of action, and some mutual mental action coupled with an intent to commit the act that results in the injury ; there must be a preconceived plan and unity of design and purpose. Ward v. Sinclair, 804 S.W.2d 929, 931 (Tex. App. -- Dallas 1990, writ denied). Proof of conspiracy may be, and usually must be, made by circumstantial evidence. Carr v. Hunt, 651 S.W.2d 875, 882 (Tex. App. -- Dallas 1983, writ ref'd n.r.e.). Vital facts, however, may not be proved by unreasonable inferences or by inferences piled on inferences. Id. Circumstantial evidence may by used to establish any material fact, but it must constitute more than mere suspicion or surmise. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993).
In this case, there is conflicting testimony as to whether the deputies falsely accused Novark of violating a prisoner's civil rights. When the jury is confronted with conflicting testimony, we cannot pass on the credibility of the witnesses nor substitute our findings for those of the jury, even though after reviewing the evidence we might have reached a different conclusion. Herbert v. Herbert, 754 S.W.2d 141, 145 (Tex. 1988); Precision Homes, Inc. v. Cooper, 671 S.W.2d 924, 929 (Tex. App. -- Houston [14th Dist.] 1984, writ ref'd n.r.e.). It is the sole province of the trier of fact to judge the credibility and weight to be given to the testimony and to resolve any conflicts in the testimony of the witnesses. Precision Homes, 671 S.W.2d at 929. Based upon the jury's answers as to the liability questions, it is apparent that the jury resolved these conflicts in favor of Novark's version of events and disbelieved the deputies' version. The jury's conclusion favoring Novark's testimony is supported by evidence that Bossert did not identify Novark as the officer who pointed the gun at him, but instead contended it was the arresting officer. In addition, the deputies' testimony at trial differed from earlier testimony, and they were impeached numerous times with inconsistent previous testimony from their depositions, before the grand jury, and at Novark's criminal trial.
Novark contends that an inference supporting the "meeting of the minds" element in this case could be drawn from the similarity in the essential details of the incident as reported in the deputies' statements. This similarity could have led the jury to conclude that the deputies acted together to falsely accuse Novark. In the jury's view, this inference could serve as a logical explanation for two people independently to recount the same false version of events. The jury is free to make a reasonable inferential leap based on the evidence. Walters v. American States Ins. Co., 654 S.W.2d 423, 426 (Tex. 1983). The jury may believe all, part, or none of the testimony in arriving at the finding it concludes is the most reasonable. Fichtner v. Richardson, 708 S.W.2d 479, 483 (Tex. App. -- Dallas 1986, writ ref'd n.r.e.). Based on the jury's credibility determination that the d
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