Miranda v. Byles, No. 01–10–01022–CV.

CourtCourt of Appeals of Texas
Writing for the CourtJustice KEYES
Citation390 S.W.3d 543
PartiesJesus MIRANDA, Appellant v. Stephen BYLES, Appellee.
Docket NumberNo. 01–10–01022–CV.
Decision Date16 November 2012

390 S.W.3d 543

Jesus MIRANDA, Appellant
v.
Stephen BYLES, Appellee.

No. 01–10–01022–CV.

Court of Appeals of Texas,
Houston (1st Dist.)
.

Oct. 25, 2012.
Rehearing/En Banc Reconsideration Denied Nov. 16, 2012.


[390 S.W.3d 546]


Matthew Paul Nickson, for Appellant.

Michael L. Herndon, The Herndon Firm, PC, Earle S. Lilly, Lilly, Newman & Van Ness, L.L.P., Houston, TX, for Appellee.


Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.

OPINION ON REHEARING

LAURA CARTER HIGLEY, Justice.

We originally issued our memorandum opinion in this appeal on February 16, 2012. Appellant, Jesus Miranda, has filed a motion for rehearing and for en banc reconsideration. We grant the motion for rehearing, vacate our earlier judgment, withdraw our previous opinion, and issue this opinion in its place. We dismiss the motion for en banc reconsideration as moot.

Miranda challenges the trial court's judgment holding Jesus liable for publishing statements determined to be defamatory per se. In three issues, Jesus argues (1) the statements were not defamatory per se; (2) Stephen failed to prove that the statements were false; (3) there is legally and factually insufficient support for the award of actual damages; and (4) neither statement is actionable under the incremental harm theory.

We affirm.

Background

Some time in September 2007, Valerie Villarreal came from her home in Harlingen to the home of her mother and step-father, Lisa Villarreal and Stephen Byles, in Sealy, Texas. What was supposed to be a short visit turned into an extended stay.

At the time, Valerie relied on Lisa and Stephen for financial support. She was also known to be friends with gang members

[390 S.W.3d 547]

and was involved in drugs and drinking alcohol.

During the visit, Valerie's sister, Vanessa Villarreal, turned 16. That night, Vanessa snuck out of the house and spent time with some of Valerie's gang friends. Valerie initially denied knowing where Vanessa was. Eventually, Valerie became concerned, admitted to knowing who she was with, and began assisting her mother in locating Vanessa. Vanessa showed up later the next day, under the influence of some drug.

This led to a fight between Valerie and Lisa and Stephen. Lisa and Stephen told Valerie she was going to lose some of her financial support and that she was going to have to return home. Stephen then left for a business trip to Singapore the next day, October 4, 2007.

On Friday, October 5, 2007, Valerie's daughter, L.S., told her that Stephen had placed his hand on her vagina. L.S. was three at the time of the outcry. Valerie reported that L.S. was not upset when she told this to Valerie. Valerie told her mother about what L.S. had said. In the discussion, Lisa told Valerie she still needed to leave and that Valerie should get L.S. examined if she believed the statement.

Jesus Miranda, Lisa's brother, found out about the outcry the next day. While he had not been involved in the lives of Valerie and L.S. before the outcry, he became very involved following the outcry. Jesus told Valerie that he was going to call CPS if she did not. Valerie told him she planned to take L.S. to be examined.

Jesus also called Lisa. Lisa told him she did not want to talk to him about it. Jesus began telling Lisa about how they could team up and get Stephen. At the end of the conversation, he told Lisa that he would get her and Stephen and that she would go down with Stephen.

Valerie took L.S. to a hospital to be evaluated on Monday, October 8, 2007. The hospital required the authorities to be alerted before an examination could be performed, so Valerie contacted the Child Protective Services division of the Department of Family and Protective Services (“CPS”). L.S. was interviewed by the doctors. They asked her if she had been touched, and L.S. said Stephen's name. The doctors at the hospital attempted to physically examine L.S., but she would not let them. The examination was discontinued.

After the incident was reported, CPS began an investigation into the allegations. The Austin County District Attorney's Office also began an investigation into the allegations.

Later in October, Jesus took Valerie and L.S. to a barbecue at the house of some friends. Jesus introduced L.S. to those at the barbecue as the child that Stephen molested. Valerie was staying with Jesus around this time and heard him telling people on the telephone that Stephen had molested L.S.

On October 22, 2007, Valerie and Jesus took L.S. to the Children's Assessment Center. The people at the center first interviewed L.S. Then they performed a physical examination, but the examiners concluded that there was no physical indication of whether L.S. had been sexually molested.

Shortly after the visit to the Children's Assessment Center, Jesus told Valerie that he did not need her any more. Valerie went back home to Harlingen. While she was in Harlingen, Jesus called her several times and told her that she would lose her kids if she did not do certain things and threatened to call CPS on Valerie.

Around November 13th, 2007, Lisa, at Valerie's request, took possession of Valerie's

[390 S.W.3d 548]

children. Valerie had told Lisa that, if she did not take the children, Valerie would give them to CPS. Valerie felt that she was not stable anymore and could not give the children the attention they needed. Stephen lived separately from Lisa once she took possession of the children.

Proceedings for Lisa to take custody of Valerie's two children were initiated in Houston. An amicus attorney was appointed in that case to look after the best interest of the children.

After Lisa took possession of the children, Valerie told her that Jesus wanted to issue an Amber Alert on the children. Around that time, allegations arose that Lisa had kidnapped the children. At trial, Jesus testified that he could not recollect telling the district attorney that Lisa had kidnapped the children.

During this course of events, Jesus frequently called or texted Lisa, making accusatory statements. In one message left on her voicemail, he told Lisa that he and Valerie were on their way to the police station and that the police were going to take Valerie's children from her. In that message, Jesus also said, “It's not going to be under your terms anymore, Lisa. Stephen's money isn't what dictates this. Stephen's hand on your granddaughter's vagina isn't what dictates this. OK? I dictate this now, honey.”

A hearing on temporary custody of Valerie's children was held in January 2008. Before the hearing, Jesus called Valerie, telling her not to back down and saying, “What if next time he penetrates your daughter?” Jesus came to the hearing as well. He told Valerie that the only reason Lisa was taking the children was to try to help Stephen's case. The family court entered an order giving Lisa indefinite temporary custody of the children. The order also restricted Stephen from being around the children.

Also in January, Jesus told his brother, Juan Miranda, Jr., that Stephen had molested L.S. and, in addition, said that a doctor confirmed that Stephen had sexually molested L.S. Jesus claimed that he knew that it happened.

The amicus attorney ultimately represented to the family court that the children would be better off in Lisa and Stephen's possession. In May 2008, the family court lifted the portion of its temporary order that prohibited Stephen from being in the presence of the two children. Lisa was awarded custody of Valerie's children.

Eventually, the investigations by CPS and the Austin County District Attorney's Office were concluded without pressing charges or any claim of wrongdoing by Stephen.

Stephen filed a suit against Jesus on December 12, 2008. At the time of trial, Stephen asserted claims of slander per quod, slander per se, and intentional infliction of emotional distress. At trial, Stephen limited his claim to slander per se based on (1) the voicemail message Jesus left for Lisa stating, “Stephen's hand on your granddaughter's vagina isn't what dictates this” and (2) Jesus's representation to his brother Juan that a doctor confirmed that Stephen had sexually molested L.S.

The parties agreed to a bench trial. The two-day trial began on May 17, 2010. On May 18, 2010, the trial court issued its findings of fact and conclusions of law. The findings of fact, in relevant part, contained the following:

6. Ste[ph]en Byle[s] was a credible witness. His testimony was clear, positive, and direct. His demeanor on the witness stand exhibited trustworthiness and honesty.

[390 S.W.3d 549]

7. Jesus Miranda was not a credible witness. His testimony was often evasive, contradictory, and implausible. His demeanor on the witness stand did not suggest that he was trustworthy.

8. Ste[ph]en Byle[s] brings this lawsuit as a private individual.

9. Jesus Miranda is not a member of the print or broadcast media.

10. The issues concerning defamation involve only Ste[ph]en Byle[s]'s individual interests, not public interests.

11. On December 12, 2007, Jesus Miranda published a statement stating “Ste [ph]en's hands on your granddaughter's vagina isn't what dictates this.”

12. In January 2008, Jesus Miranda published a statement to Juan Miranda that a doctor had examined L.S. and that the doctor had confirmed that L.S. had been sexually molested by Ste[ph]en Byle[s].

13. Jesus Miranda's statements described in ¶¶ 11–12 of the Findings of Fact (“Defamatory Statements”) were defamatory concerning plaintiff.

14. The Defamatory Statements were false.

....

17. As a result of Jesus Miranda's defamatory statements, Ste[ph]en Byle[s] has endured mental and emotional anguish, been shunned from his wife's family, and suffered injury to his reputation.

....

28. Neither the Defamatory Statements nor [other statements] were made while assisting in the investigation of a report of alleged child abuse or neglect or while testifying or otherwise participating in a judicial proceeding arising from a report, petition, or...

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36 practice notes
  • Rehak Creative Servs., Inc. v. Witt, No. 14–12–00658–CV.
    • United States
    • Court of Appeals of Texas
    • May 21, 2013
    ...Ann. § 73.001; see also Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114–15 (Tex.2000). This is an objective test. Miranda v. Byles, 390 S.W.3d 543, 550 (Tex.App.-Houston [1st Dist.] 2012, pet. filed) (citing New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex.2004)); see also Kaufman, ......
  • Zaidi v. Shah, NO. 14-14-00855-CV
    • United States
    • Court of Appeals of Texas
    • September 8, 2016
    ...each cause of action, but the trial court did not do so. This issue therefore has been preserved for our review. See Miranda v. Byles , 390 S.W.3d 543, 552 (Tex.App.–Houston [1st Dist.] 2012, pet. denied) (op. on reh'g) ("The corollary to [the Harris County / Casteel error-preservation] rul......
  • Levine v. Steve Scharn Custom Homes, Inc., No. 01–12–00229–CV.
    • United States
    • Court of Appeals of Texas
    • October 2, 2014
    ...statement to be actionable in defamation, it must expressly or impliedly assert facts that are objectively verifiable.” Miranda v. Byles, 390 S.W.3d 543, 550 (Tex.App.-Houston [1st Dist.] 2010, pet. denied) (quoting Palestine Herald–Press Co. v. Zimmer, 257 S.W.3d 504, 509 (Tex.App.-Tyler 2......
  • Van Der Linden v. Khan, NO. 02-16-00374-CV
    • United States
    • Court of Appeals of Texas
    • November 9, 2017
    ...is not a matter of public concern. The first, Miranda v. Byles , is not applicable here because it did not involve a TCPA challenge. 390 S.W.3d 543, 548–49 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (op. on reh'g), cert. denied , ––– U.S. ––––, 135 S.Ct. 373, 190 L.Ed.2d 253 (2014). ......
  • Request a trial to view additional results
36 cases
  • Rehak Creative Servs., Inc. v. Witt, No. 14–12–00658–CV.
    • United States
    • Court of Appeals of Texas
    • May 21, 2013
    ...Ann. § 73.001; see also Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114–15 (Tex.2000). This is an objective test. Miranda v. Byles, 390 S.W.3d 543, 550 (Tex.App.-Houston [1st Dist.] 2012, pet. filed) (citing New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex.2004)); see also Kaufman, ......
  • Zaidi v. Shah, NO. 14-14-00855-CV
    • United States
    • Court of Appeals of Texas
    • September 8, 2016
    ...each cause of action, but the trial court did not do so. This issue therefore has been preserved for our review. See Miranda v. Byles , 390 S.W.3d 543, 552 (Tex.App.–Houston [1st Dist.] 2012, pet. denied) (op. on reh'g) ("The corollary to [the Harris County / Casteel error-preservation] rul......
  • Levine v. Steve Scharn Custom Homes, Inc., No. 01–12–00229–CV.
    • United States
    • Court of Appeals of Texas
    • October 2, 2014
    ...statement to be actionable in defamation, it must expressly or impliedly assert facts that are objectively verifiable.” Miranda v. Byles, 390 S.W.3d 543, 550 (Tex.App.-Houston [1st Dist.] 2010, pet. denied) (quoting Palestine Herald–Press Co. v. Zimmer, 257 S.W.3d 504, 509 (Tex.App.-Tyler 2......
  • Van Der Linden v. Khan, NO. 02-16-00374-CV
    • United States
    • Court of Appeals of Texas
    • November 9, 2017
    ...is not a matter of public concern. The first, Miranda v. Byles , is not applicable here because it did not involve a TCPA challenge. 390 S.W.3d 543, 548–49 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (op. on reh'g), cert. denied , ––– U.S. ––––, 135 S.Ct. 373, 190 L.Ed.2d 253 (2014). ......
  • Request a trial to view additional results

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