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Moore v. Novark9/28/1995
1995) (mandamus is appropriate when a fine is imposed and there is no physical restraint); Williams, 690 S.W.2d at 243 n.1 (validity of a contempt order can only be attacked collaterally by writ of habeas corpus).
We sustain the deputies' second point of error contending that the court exceeded its authority in ordering sanctions against Burnett.
STANDARD OF REVIEW
The majority of appellants' complaints concern the legal and factual sufficiency of the evidence to support the jury's findings. There has been some confusion among the courts of appeals about the appropriate evidentiary standard in malicious prosecution cases. Because of the nature of malicious prosecution cases and the public policy need for citizens to feel free to furnish information relating to possible illegal activities to law enforcement authorities, it has been held that the proof must be "positive, clear and satisfactory." Diamond Shamrock Corp. v. Ortiz, 753 S.W.2d 238, 241 (Tex. App. -- Corpus Christi 1988, writ denied). Here, the court instructed the jury to find the elements of malicious prosecution by clear and convincing evidence. The Supreme Court has since determined that the proper standard is the traditional burden of proof by a preponderance of the evidence. Ellis County State Bank v. Keever, 888 S.W.2d 790, 793 (Tex. 1994). That burden does not change because trial judges are admonished to set aside the verdict and order a new trial if the evidence is not "positive, clear and satisfactory." Id.
It is well settled that courts of appeals have only two standards by which evidence is reviewed: factual sufficiency and legal sufficiency. Meadows v. Green, 524 S.W.2d 509, 510 (Tex. 1975). A court of appeals cannot apply a third standard of reviewing the evidence, the "clear and convincing" standard. Id. In Keever, the Supreme Court rejected any heightened standard of review of malicious prosecution verdicts in favor of the traditional standards of reviewing factual and legal sufficiency. Keever, 888 S.W.2d at 795-96.
In reviewing a "no evidence" point, we must consider only the evidence and inferences tending to support the jury's finding, viewed most favorably in support of the finding, and disregard all contrary evidence and inferences. Havner v. E-Z-Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). If there is any evidence of probative force, that is, more than a scintilla of evidence, to support the finding, the point must be overruled. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex. 1989); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). In considering the factual sufficiency of the evidence, we must consider and weigh all of the evidence and may set aside the verdict and remand the cause for a new trial if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When appellants challenge both the legal and factual sufficiency of the evidence supporting the jury's findings, we should first review the legal sufficiency challenges. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981).
CONSTABLE MOORE
Constable Moore has argued his appeal separately. In his points of error one, two, and four, he attacks the sufficiency of the evidence supporting the jury's finding that he maliciously prosecuted Novark. He also argues in point of error five that there is legally insufficient evidence to support the jury's finding of intentional infliction of emotional distress by Constable Moore. Moreover, because he
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