Town of Flower Mound v. Teague

• Decision Date: 26 June 2003
• Docket Number: No. 2-00-193-CV.,2-00-193-CV.
• Court: Texas Court of Appeals
• Parties: TOWN OF FLOWER MOUND, Texas, Appellant, v. Tom TEAGUE and David Burkett, Appellees.

111 S.W.3d 742

TOWN OF FLOWER MOUND, Texas, Appellant, v. Tom TEAGUE and David Burkett, Appellees.

No. 2-00-193-CV.

Court of Appeals of Texas, Fort Worth.

June 26, 2003.

Joe C. Tooley, Edwin P. Voss, Jr, Brown & Hofmeister, L.L.P., Dallas, for Appellant.

Darrin Walker, Chandler Law Offices, Lufkin, for Appellee.

PANEL A: CAYCE, C.J.; DAY and GARDNER, JJ.

OPINION ON REHEARING

JOHN CAYCE, Chief Justice.

I. Introduction

We withdraw our opinion and judgment of April 17, 2003 and substitute the following. We deny the Town of Flower Mound's motion for rehearing.

In this whistleblower case, the Town of Flower Mound, Texas appeals from a jury verdict for two former police officers, Tom Teague and David Burkett. In twelve issues, the Town challenges the legal and factual sufficiency of the evidence to support the trial court's judgment, contends there are errors in the jury charge and the judgment, complains that the trial court improperly denied the Town's post-judgment motions, complains that several of the trial court's evidentiary rulings were erroneous, and contends that it is entitled to a new trial due to inaccuracies in the reporter's record. We will affirm in part and reverse and remand in part.

II. Background Facts and Procedural History

In 1995, Teague and Burkett were police officers for the Town. They were assigned to the criminal investigation division (C.I.D.) of the Town's police department. On November 28, 1995, Town patrol officers attempted to serve a witness subpoena on Mary Womack in connection with a criminal case. The defendant in that case had moved to suppress the evidence that Wess Jones, a patrol officer, had obtained with a search warrant, and assistant district attorney Brian Slabotsky planned to call Mary as a witness at the suppression hearing.

Mary lived with her father-in-law, Ernest Womack, Sr. When the officers went to Ernest's home to serve the subpoena, Ernest informed them that Mary was not there, but had left several days earlier with a car that he had purchased for Mary but that actually belonged to him. Ernest said that he had told Mary not to leave or take the car and that he wished to file theft charges against her. Officer Bentley took down the information and prepared a police report for unauthorized use of a motor vehicle (UUMV). See Tex. Penal Code Ann. § 31.07 (Vernon 2003).

Through their prior dealings with the Womacks, most of the patrol officers knew that Mary and Ernest had been living together as husband and wife and that the missing car was "basically" Mary's, even though it was registered to Ernest. The officers were familiar with what the car looked like and had seen Mary driving it around town for a couple of years. In this type of situation, the police department typically did not file criminal charges. Consequently, while Bentley was completing the police report, Sergeant Greg Jones of the patrol division instructed him to entitle the report as a missing persons report rather than as a UUMV report. Bentley complied with this order. As titled, the report alleged a nonprosecutable incident (missing person) rather than a prosecutable offense (UUMV). Apart from the title, however, the report alleged all the elements of UUMV.

At that time, Burkett was responsible for reviewing cases and warrants issued within C.I.D. On the morning of November 29, Burkett reviewed the missing persons report on Mary and assigned it to Investigator Ron McFadden. Burkett noted, however, that the report contained all of the elements of UUMV. During the departmental briefing on the same morning, Burkett informed the investigators that he would contact Greg Jones to find out more about the case and that, if it should prove to be a UUMV, the case would be reassigned as a property offense. Greg Jones was in court that day, however, so Burkett was unable to contact him immediately.

Also on November 29, Wess Jones learned of the report, and that Mary could not be found, during a meeting with Slabotsky. Wess left that meeting with the understanding that he needed to determine why the report had not been filed as a UUMV and why, as a result, there was no warrant for Mary's arrest.

Wess Jones went to Burkett's office and asked why the case was not being handled as a UUMV. There is conflicting evidence concerning the details of their conversation. Burkett stated that he told Wess Jones he was sure Greg Jones had reasons for not making the report a UUMV and instructed Wess not to take any other action in the case until Burkett had talked with Greg. Burkett did not indicate any knowledge of Wess's conversation with Slabotsky. Wess Jones testified that Burkett said he also believed it should have been a UUMV, but that patrol, not C.I.D., had decided how the report should be titled. Wess further testified that he relayed to Burkett the conversation with Slabotsky and asked if it would be a problem to change the report to UUMV. According to Wess Jones, Burkett replied that, unless the investigator working on the case knew something that Burkett did not, Burkett did not see why the report should not be a UUMV. Burkett also told Jones where the report was and who the investigator was.

Wess Jones then contacted Bentley and asked if Bentley would object to the title of the report being changed from missing persons to UUMV. Bentley responded that he believed only C.I.D. could authorize the change, but that it was fine to change the report if C.I.D. gave the approval.

Wess Jones also contacted Teague, who was head of C.I.D. and its internal affairs investigator. Wess asked Teague why the report had not been filed as a theft or UUMV. Like the testimony about the Wess-Burkett conversation, the testimony about this conversation is contradictory. Teague stated that he explained to Wess that this type of situation did not qualify as a theft and that he instructed Wess not to list the car as stolen, but to leave the report as a missing persons report. Teague's opinions were apparently based on the Denton County District Attorney's office's long-standing guidelines that excluded the prosecution of this type of situation as a theft or UUMV. Like Burkett, Teague did not indicate any knowledge of Wess's conversation with Slabotsky.

Conversely, Wess Jones testified that, after gathering information from the investigator and Bentley, he determined that it would probably be okay to change the report. Burkett was not in his office, so Wess spoke with Teague and "explained the whole situation to him." According to Wess, Teague told Wess that Wess needed to prepare a probable cause affidavit, obtain a warrant, and have the warrant information entered into the county's computer so that Mary would be served with it if she was stopped by an officer.

Wess Jones then obtained permission from his supervisor, Sergeant Mike Pascoe, to change the report title from missing persons to UUMV. Pascoe also helped Wess prepare the probable cause affidavit and obtain a warrant for Mary's arrest for UUMV.

On December 5, Burkett learned that a warrant had been issued for Mary's arrest. This development raised questions in Burkett's mind. After checking with Greg Jones and the records department, he discovered that a judge had issued the warrant because Wess Jones had changed the title on the offense report and attached the altered report to a probable cause affidavit. Burkett was concerned that Wess Jones had committed a felony by arranging for Mary to be arrested under false pretenses. Consequently, on December 6, he and Greg Jones notified Teague about the situation.

After discussing the matter with Burkett and Greg Jones and reviewing their paperwork, Teague also concluded that Wess Jones may have violated the law by changing Bentley's report from a missing persons report to a felony offense report in order to arrest Mary for a felony offense, simply as a pretext for getting her into court as a witness. Like Burkett, Teague believed this was a felony offense; therefore, he decided to contact the Denton County District Attorney's office for advice on how to proceed. Teague was not certain whether the proper procedure would be to just conduct an internal affairs investigation, or whether a criminal investigation was also necessary. The three officers met with assistant district attorney Kevin Henry, the district attorney's chief intake officer. Henry confirmed that Wess Jones's behavior was consistent with both misdemeanor and felony violations.¹ Henry recommended that the case be prepared for grand jury review and that the department also proceed with a parallel internal affairs investigation. Teague reported these events and Henry's recommendation in a December 7 memo to Chief David Brungardt. Teague also recommended to Chief Brungardt that Wess Jones immediately be placed on administrative leave with pay, pending the outcome of the investigations. With Chief Brungardt's authorization, Wess Jones was placed on administrative leave on December 8, 1995.

Wess Jones was also notified of the investigations and the possible criminal charges against him. Teague put himself in charge of the internal affairs investigation and assigned Burkett the criminal one. During this time, Teague and Chief Brungardt officed directly across from each other and attended the same departmental staff meetings almost every morning. Chief Brungardt "pretty much signed off" on the steps Teague took in the investigations and did not voice any objections.

On December 19, 1995, Teague telephoned Town Attorney Terrance S. Welch and asked whether the Town would accept Wess Jones's resignation if it turned out that Jones had committed criminal violations.² After talking with Teague, Welch became concerned that the two parallel investigations were not being conducted separately and that Chief Brungardt may not have been informed of the full extent of the investigations. Welch called Henry, the Town's human resources director, and the previous...