Richey v. Brookshire Grocery Co.

Decision Date30 October 1997
Docket NumberNo. 95-0692,95-0692
Parties40 Tex. Sup. Ct. J. 839 Kelley RICHEY, Petitioner, v. BROOKSHIRE GROCERY CO. d/b/a Super 1 Food Store, Respondent.
CourtTexas Supreme Court

Gregory P. Grajczyk, William K. Gleason, Longview, for Petitioner.

Molly H. Hatchell, Mike A. Hatchell, Tyler, for Respondent.

SPECTOR, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, HECHT, ENOCH and OWEN, Justices, join.

The issue in this malicious prosecution case is whether Brookshire Grocery Store lacked probable cause to initiate criminal proceedings against Kelley Richey. The jury found, along with the other elements of malicious prosecution, that Brookshire lacked probable cause to file a criminal prosecution against Richey and awarded him damages. The court of appeals reversed, holding that there was no evidence to support the jury's finding on the probable cause issue. 899 S.W.2d 331. We agree with the court of appeals and therefore affirm.


On December 11, 1989, at approximately 2:30 a.m., Richey entered a Brookshire Super 1 Food Store. Brookshire night manager Russell Farris saw Kelley Richey enter the store and place a pack of cigarettes in his shopping cart. Farris then observed Richey "twiddle" the cigarettes in his hand and later put them in his coat pocket. As night manager, Farris was required to be alert to potential shoplifting, cigarettes topping the list of items commonly taken. As Richey checked out, he wrote a check for $51.75 for some groceries and began to bag them. He did not pay for the cigarettes in his pocket. Before walking out of the store, Richey pulled a food carton from one of the bags and read the label. Then Richey proceeded toward the door, stopping near a bin in which customers could place items to be donated to charity. He got a sack, went back to the food aisles and filled the sack with baby food, and paid $8.89 in cash. He still did not pay for the cigarettes. Richey then placed the baby food in the charity bin and left the store.

In the parking lot, Farris and another employee asked Richey if he had forgotten to pay for anything. Richey said that he had not. When Farris mentioned the cigarettes in Richey's pocket, Richey stated that he had inadvertently put them there and offered to pay for them. Following company policy, Farris refused to accept payment for the cigarettes. When the police arrived, Richey asked the police officer to mention in his report that Richey had contributed to the charity bin. Richey was interrogated, given a citation, and released. On his way out of the store, Richey removed the baby food from the charity bin and took it to his car. Farris later signed a sworn complaint charging Richey with theft of the cigarettes.

At the criminal trial, the jury found Richey not guilty after deliberating only a few minutes. Richey then filed this suit for false imprisonment and malicious prosecution. The jury in the civil trial returned a verdict against Richey on his false imprisonment claim but found in his favor on the malicious prosecution claim, awarding him $18,400 in actual damages and $18,400 in exemplary damages. The court of appeals, with one justice dissenting, reversed and rendered judgment in favor of Brookshire, holding that there was no evidence to support the jury's finding that Brookshire lacked probable cause to prosecute Richey. 899 S.W.2d at 335.


A plaintiff in a malicious criminal prosecution claim must establish

(1) the commencement of a criminal prosecution against the plaintiff;

(2) causation (initiation or procurement) of the action by the defendant;

(3) termination of the prosecution in the plaintiff's favor;

(4) the plaintiff's innocence;

(5) the absence of probable cause for the proceedings;

(6) malice in filing the charge; and

(7) damage to the plaintiff.

See Coniglio v. Snyder, 756 S.W.2d 743, 744 (Tex.App.--Corpus Christi 1988, writ denied); see also Ellis County State Bank v. Keever, 888 S.W.2d 790, 793-94 (Tex.1994); Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 292-93 (Tex.1994). At issue in this appeal is whether Brookshire had probable cause to initiate criminal proceedings against Richey.

We have long defined probable cause as "the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor [complainant], that the person charged was guilty of the crime for which he was prosecuted." Akin v. Dahl, 661 S.W.2d 917, 921 (Tex.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1911, 80 L.Ed.2d 460 (1984); see Ramsey v. Arrott, 64 Tex. 320, 323 (Tex.1885) (quoting Wheeler v. Nesbitt, 65 U.S. 544, 551-52, 24 How. 544, 16 L.Ed. 765 (1860)). The probable-cause determination asks whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be before the criminal proceedings were instituted. Akin, 661 S.W.2d at 920-21; Coniglio, 756 S.W.2d at 744.

Malicious prosecution actions involve a delicate balance between society's interest in the efficient enforcement of the criminal law and the individual's interest in freedom from unjustifiable and oppressive criminal prosecution. Lieck, 881 S.W.2d at 290-91. Accordingly, there is an initial presumption in malicious prosecution actions that the defendant acted reasonably and in good faith and had probable cause to initiate the proceedings. Keever, 888 S.W.2d at 794; Akin 661 S.W.2d at 920. That presumption disappears once a plaintiff produces evidence that the motives, grounds, beliefs, and other evidence upon which the defendant acted did not constitute probable cause. Id. The burden then shifts to the defendant to offer proof of probable cause. Id.

Whether probable cause is a question of law or a mixed question of law and fact depends on whether the parties dispute the underlying facts. When the facts underlying the defendant's decision to prosecute are disputed, the trier of fact must weigh evidence and resolve conflicts to determine if probable cause exists, as a mixed question of law and fact. Akin, 661 S.W.2d at 920. It has long been true, however, that "[w]hen the facts are not contested, and there is no conflict in the evidence directed to that issue, the question of probable cause is a question of law which is to be decided by the court." Ramsey v. Arrott, 64 Tex. 320, 323 (1885); see also Landa v. Obert, 45 Tex. 539, 543 (1876) ("[w]hat facts and circumstances amount to probable cause is a pure question of law"). Probable cause in this case, in which the facts and events leading up to Richey's arrest are undisputed, is therefore a question of law for the court and not the trier of fact. See also, e.g., Daniels v. Finney, 262 S.W.2d 431, 433 (Tex.Civ.App.--Galveston 1953, writ ref'd n.r.e.); Montgomery Ward & Co. v. Kirkland, 225 S.W.2d 906, 908 (Tex.Civ.App.--San Antonio 1949, writ ref'd n.r.e.); RESTATEMENT (SECOND) OF TORTS § 673(1)(c).


Because lack of probable cause in this case is a question of law, the issue for the Court is whether the undisputed facts underlying the decision to prosecute support a reasonable belief that Richey was guilty of theft. Because Richey concealed merchandise, retained the merchandise in his possession, and passed through the check-out line without paying for the merchandise, the only probable-cause issue is the reasonableness of Brookshire's belief as to Richey's state of mind at the time of the appropriation. See TEX. PENAL CODE § 31.03.

In a malicious prosecution case based on a criminal complaint, the complainant's failure to make a further investigation into the suspect's state of mind does not constitute lack of probable cause if all objective elements of a crime reasonably appear to have been completed. See Thomas v. Cisneros, 596 S.W.2d 313, 317-18 (Tex.Civ.App.--Austin 1980, writ ref'd n.r.e.); Carswell v. Southwestern Bell Tel. Co., 449 S.W.2d 805, 817 (Tex.Civ.App.--Houston [1st Dist.] 1969, no writ). In this case, in which the store manager observed Richey leave the store without paying for an item in his concealed possession, the store employees had no duty to inquire into Richey's state of mind before prosecuting. See Delchamps, Inc. v. Morgan, 601 So.2d 442, 445 (Ala.1992) ("Because Morgan undisputedly had a visible pack of cigarettes in her pocket, [the store employee] could have entertained 'an honest and strong suspicion' that she had concealed store property. Therefore, the malicious prosecution count should not have been submitted to the jury."); Melia v. Dillon Cos., Inc., 18 Kan.App.2d 5, 846 P.2d 257, 261 (1993) ("Here, it is uncontested that Melia concealed and failed to pay for merchandise belonging to the store. Consequently, the existence of probable cause in this case is not a jury question."). As one court of appeals has noted, "A private citizen has no duty to inquire of the suspect whether he has some alibi or explanation before filing charges." Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 627 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); see also 52 AM.JUR.2D Malicious Prosecution § 54 (1970).

Even if Richey's intent to shoplift could not be presumed under these circumstances, the undisputed facts of this case dictate that it was not unreasonable for Brookshire's employees to believe that Richey intended to steal the cigarettes. Richey admitted that he placed the cigarettes in his pocket and did not pay for them. At trial, he testified that his behavior could lead someone to believe that he was shoplifting:

Q I know you had no intent but yet from your actions it looks like somebody was actually shoplifting by picking up those cigarettes and concealing them, isn't that right?

A That's right.

* * * * * *

Q And the reason why it was a mistake is because somebody could look at that and think you were in fact...

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