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Moore v. Novark9/28/1995
claims there is no evidence of bad faith, Constable Moore argues in point ten that he is entitled to official immunity for performing quasi-judicial functions in the scope of his authority as an elected official.
Malicious Prosecution
We first address the legal sufficiency of the evidence to support the jury's finding of malicious prosecution by Constable Moore in answer to Question No. 1. The instruction accompanying this question listed the elements of malicious prosecution as follows:
1. A criminal prosecution was commenced against Mr. Novark;
2. The prosecution was caused by the defendants or by and through their aid and cooperation;
3. It terminated in favor of Mr. Novark;
4. Mr. Novark was innocent;
5. The defendants lacked probable cause to bring about the proceeding;
6. The defendants acted with malice;
7. Mr. Novark suffered damages as a result.
When the defendant makes a full and fair disclosure of the facts to a prosecuting officer and the officer decides to prosecute, the defendant acts with probable cause and is not liable for malicious prosecution. Browning Ferris Indus., Inc. v. Zavaleta, 827 S.W.2d 336, 345 (Tex. App. -- Corpus Christi 1991, writ denied); Thomas v. Cisneros, 596 S.W.2d 313, 317 (Tex. Civ. App. -- Austin 1980, writ ref'd n.r.e.); Ada Oil Co. v. Dillaberry, 440 S.W.2d 902, 912 (Tex. Civ. App. -- Houston [14th Dist.] 1969, writ dism'd). The evidence in the record demonstrates that Constable Moore made a full and fair disclosure of the facts available to him to the federal authorities who then decided to seek Novark's indictment. Therefore, Constable Moore acted with probable cause and was not the cause of Novark's prosecution.
With respect to the jury's determination that Constable Moore maliciously prosecuted Novark, the only evidence favorable to the jury's finding is that Constable Moore made his files available to the FBI and Ferguson-Southard at their request. This evidence of merely "aiding or cooperating" with prosecuting officials in causing a criminal prosecution will not support a verdict of malicious prosecution. Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 292 (Tex. 1994). A person does not procure a prosecution when the decision to prosecute is left to the discretion of another person, law enforcement official, or the grand jury. Id.
Even though he had originally considered it, Constable Moore did not pursue an indictment against Novark through the district attorney's office. Constable Moore did not initiate contact with the FBI or the U.S. Attorney's office. He did not request that charges be brought against Novark. There is no evidence that Constable Moore encouraged or played any part in the decision to prosecute Novark. He did not testify before the grand jury or at the criminal trial. There is no evidence that Constable Moore had any knowledge about the incident beyond what was contained in the deputies' statements furnished to the investigating authorities. As to Novark's contention that Bossert was shown a suggestive photo spread, there is no evidence that Constable Moore chose the photos, that Moore knew that Bossert said the officer who pointed the gun had a moustache, or that Moore knew Novark was clean shaven. There was no evidence presented to show that Constable Moore knowingly provided false, incorrect, or misleading information or that he withheld material information within his possession. There is no evidence that Constable Moore did not believe the deputies. He had no duty to discuss the charges with Novark or investigate further before furnishing the reports to the federal authoriti
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