Gunville v. Gonzales

Decision Date30 March 2016
Docket NumberNo. 08–13–00357–CV,08–13–00357–CV
Citation508 S.W.3d 547
Parties Tana GUNVILLE and Tom Gunville, Appellants, v. Shelby GONZALES, Appellee.
CourtTexas Court of Appeals

Kimbra Kathryn Ogg, The Ogg Law Firm, PLLC, Houston, TX, Attorney for Appellant.

Andrew Meade, Houston, TX, Attorney for Appellee.

Before McClure, C.J., Rodriguez, and Hughes, JJ.



This appeal arises from a summary judgment in a malicious prosecution case. Tana Gunville was indicted on a federal charge relating to her alleged unauthorized use of gift cards. She was subsequently tried and cleared of that charge. Gunville and her husband then sued Shelby Gonzales and her husband for malicious prosecution.1 Shelby Gonzales was the alleged victim, having claimed Gunville stole the gift cards from her. Gonzales moved for summary judgment. After striking several pieces of the Gunvilles' summary judgment evidence, the trial court granted the motion. For the reasons noted below, we affirm.


The genesis of this lawsuit is the federal indictment of Tana Gunville for Access Device Fraud, in violation of 18 U.S.C. § 1029(a)(2)(2015). That statute criminalizes one who knowingly using an "unauthorized access device" to obtained things of value totaling $1,000 or more in a period of one year. Id. The person must act with the intent to defraud and the conduct in some way must affect interstate or foreign commerce. Id. An "access device" is defined broadly enough to include merchant issued gift cards. See 18 U.S.C. § 1029(e)(1). Use of an access device is "unauthorized" if it stolen. 18 U.S.C. § 1029(e)(3).

In the context of this case, the access devices were gift cards pre-loaded with a set amount of cash credits. Tana Gunville obtained several of those cards, a fact not disputed by the parties. How she came into possession of the gift cards is hotly disputed. Gunville claims she purchased the gift cards at a discounted price from Gonzales. Conversely, Gonzales informed the Brewster County Sheriff (and signed a statement to the same effect) that inferred Gunville stole the gift cards from her home. Tana Gunville had access to the home as she was a real estate agent who was showing the house to prospective purchasers.

The Brewster County Sheriff's department investigated the allegation. Somehow the matter got the attention of Assistant U.S. Attorney Kerry Fleck, who presented the matter to a federal grand jury, which true billed Tana Gunville on two separate counts.2 The case proceeded to trial where she prevailed in obtaining an acquittal. Thereafter she sued Gonzales on a number of claims, including malicious prosecution. By the time of the summary judgment motion at issue here, only the malicious prosecution claim remained.

Gonzales moved for summary judgment contending that Gunville had no evidence that: (1) Gonzales initiated or procured the prosecution; (2) Gonzales lacked probable cause; and (3) Gonzales acted with malice. Gonzales alternatively claimed the record conclusively disproved each of these elements. Gonzales' affirmative motion was supported by a copy of the indictment and the affidavit of both Shelby and Guadalupe Gonzales who swore that neither testified before nor provided any information to the grand jury.

The Gunvilles timely filed their response with supporting evidence. On the same day as the hearing, Gonzales filed objections to almost all of that evidence. The trial court sustained most of those objections, which forms part of the basis of this appeal. We accordingly summarize the pertinent excluded and admitted evidence.

Brewster County Sheriff's Statement by Shelby Gonzales (Exhibit 1)

Shelby Gonzales gave a written statement to Brewster County Sheriff Office. The handwritten statement appears on a "Witness Voluntary Statement Form" which bears the emblem of the Brewster County Sheriff's Office. The statement recites that her husband earns gift cards from his workplace. She had kept several gift cards in a safe place in their house. She noticed that several of the cards, totaling $6,500, were missing. When she told Tana Gunville about the missing cards, Gunville "overreacted" and "kept asking me if I could trace them." The statement recites that Gunville had access to Gonzales' house. Gonzales stated she never carried the cards in a way that they might accidentally be left with Gunville, nor did she sell the gift cards to Gunville. Using the unique identifying numbers for the cards, Gonzales was able to trace their use back to Gunville.

When Gonzales objected to this statement on authentication, hearsay, and relevance grounds, the trial court excluded the statement.

Tana Gunville Affidavit (Exhibit Two)

The response included an affidavit from Tana Gunville. The trial court sustained objections to several paragraphs of the affidavit but permitted other portions. The admitted portions establish that Gunville and Gonzales had once been very good friends, but they had a falling out. Prior to that disagreement, Gunville had purchased several gift cards from Gonzales. On January 15, 2007, Gonzales accused Gunville in a telephone call of stealing gift cards from her home. The gift cards she claims were stolen were the ones that Gunville in fact had purchased from Gonzales.

The trial court sustained objections to portions of the affidavit that claimed Gonzales told the Brewster County Sheriff's Office that Gunville had stolen the cards. Gunville further stated that Gonzales repeated this claim over the next two and half years, "doing everything in her power to procure" Gunville's prosecution. The stricken portions of the affidavit claim that Gonzales made the allegation so she did not have to inform her husband that she was selling the cards to get cash to send to their daughter. The trial court also excluded Gunville's recital of what other persons had testified to in the criminal trial.

Criminal Trial Testimony (Exhibits 3, 4, 5, 6, 8, 11, 12, 9, 10, 14, 17, 18, 20, 23, 24, 27, 28, 29, 30, 32, 33, 34, 35, 36, 37)

The Gunvilles' also attached several excerpts of what they represent is testimony from Tana Gunville's criminal trial. The exhibits consist of page and line numbered questions and answers consistent with the appearance of a trial transcript. The identity of the witness is reflected on the top of each page. There was no certificate from the court reporter attached to the excerpts, or a date, or cause number. Gonzales objected to each of the excerpts as lacking any authentication. She additionally objected that some of the excerpts lacked relevance, contained hearsay, and that trial testimony from an unrelated proceeding is not admissible. The trial court excluded all of this evidence.3

The excerpts include direct and cross examination testimony from Shelby Gonzales and Sheriff Ronny Dodson. That testimony reflects that she first accused Gunville of stealing the gift cards on January 15, 2007. She was angry with Gunville and contacted the police to file charges. She denied ever selling gift cards to Gunville or others.

Gonzales made an offense report to Sheriff Dodson on January 16, 2007, and she contacted him frequently in the first few months. He opened a theft investigation after talking to her, and assigned a deputy to the case. Sheriff Dodson testified before the grand jury and Gonzales contacted him frequently before that testimony. Phone records reflect she spoke to the Sheriff eighty-eight times for total of 460 minutes; in her words "I am persistent. I was going to make sure that something was going to happen to her, yes."

Some of the excerpted testimony suggests that Gonzales celebrated the night Gunville was indicted by the grand jury. Much of the testimony is pertinent to the Gunvilles' theory that Shelby Gonzales needed to sell the gift cards for cash so she could send money to her daughter, and that she concealed this fact from her husband. Consistent with this theory, another witness testified that she saw Gonzales sell or offer for sale gift cards to others.

Prosecutor's Closing Argument (Exhibit 19)

Another excluded exhibit contains what appears to a portion of Prosecutor Kerry Fleck's summation in the criminal trial. The prosecutor argued that the use of the gift cards was "unauthorized" because they were "stolen." She also argued that Gunville had seven different explanations for how the cards went missing or came into her possession, including that she found them in her vehicle.

Un-objected to or Otherwise Admitted Evidence

As a part of their response, the Gunvilles admitted an answer to an interrogatory in which Shelby Gonzales admitted that that the federal prosecutor "read over my statements." In another affidavit, Tana Gunville swore she purchased a $1,000 Visa gift card for $800 from Gonzales. When she tried to tender a check in that amount, Gonzales insisted on cash. Gonzales herself had included Count I of the indictment which identified "S.G." as the victim of the theft of her gift cards.

At the summary judgment hearing, the trial court entertained the objections first. The court permitted the Gunvilles to file a post-hearing response to the evidentiary objections (which had been filed the day of the hearing). That response included an affidavit from Tana Gunville's criminal trial attorney attesting that the statement to the Brewster County Sheriff's Department (Exhibit 1) was something received from the "Government." The response also included four certifications from Karl Myers, an official court reporter from the United States District Court for the Western District, attesting that the "foregoing" is a correct transcription of proceedings in the "above-entitled matter." The case style in not apparent from the certifications, nor are certifications necessarily tied to the excerpted testimony attached to the motion for summary judgment, other than the name of the court reporter is the same.

Several days later, the trial court granted the motion for summary judgment...

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