Opinion
08-24-00058-CV
10-24-2024
DAVID ALANIZ D/B/A PBT RACING, LLC and CAROLINA GAYTAN, Appellants, v. 3 NETTS INC., ANTONIO CARRASCO D/B/A SINAY RACING, and CRUSELDA SANCHEZ, Appellees.
Appeal from the 109th Judicial District Court of Andrews County, Texas No. 22,826
Before Alley, C.J., Palafox and Soto, JJ.
MEMORANDUM OPINION
GINA M. PALAFOX, JUSTICE
This is an appeal from a jury verdict in favor of Appellees 3 Netts Inc., Antonio Carrasco d/b/a Sinay Racing, and Cruselda Sanchez, who together brought two sets of claims against Appellants David Alaniz d/b/a PBT Racing, LLC, and Carolina Gaytan. The first group of claims pertains to the ownership and exercise of control and dominion over five quarter horses; while the second related, but distinct claim sought damages for malicious prosecution of Cruselda Sanchez by Carolina Gaytan. In multiple issues on appeal, Appellants contend the evidence is both legally and factually insufficient to support the jury's findings regarding property ownership, conversion, and malicious prosecution. We affirm the judgment of the trial court.
I. Background
Alfredo Sanchez and his wife, Appellee Cruselda Sanchez, owned and operated 3 Netts, Inc., a trucking company located in Andrews, Texas. Enjoying a passion for horses and horse racing, Alfredo also built facilities for horse training and breading. Alfredo tragically died in an automobile accident on April 20, 2022. His death put into motion the events underlying the claims of this appeal.
For brevity and clarity, we refer to Cruselda Sanchez by her surname, Sanchez, and to her husband, Alfredo Sanchez, by his given name only. Sanchez testified the names of their three daughters, Annette, Linnette, and Jeannette, provided the impetus for her and her husband naming their business 3 Netts.
The first set of claims pertains to the ownership of the following five horses, and any foals borne to them: (1) Jacques Seis, (2) Furyofthetyger, (3) Original Cash, (4) Talk It Out DWM, and (5) Corona at Sunset (the Horses). The Horses were all registered with the American Quarter Horse Association (AQHA), an equine membership organization that certifies and maintains an official ownership registry. Upon a transfer or sale of a registered horse, an AQHA member submits a transfer report to the AQHA, and it in turn then issues a new registration certificate to the new owner or owners.
A certificate of registration from AQHA functions similarly to a vehicle's certificate of title-the AQHA certificate of registration establishes ownership of a horse. "The AQHA is a non-profit Texas corporation whose purpose is to collect, record and preserve the quarter horse pedigree. . . . Before a horse may participate in any AQHA sanctioned event, it must be registered as a quarter horse." Burge v. Am. Quarter Horse Ass'n, 782 S.W.2d 353, 355 (Tex. App.- Amarillo 1990, no writ); Adams v. Am. Quarter Horse Ass'n, 583 S.W.2d 828, 831 (Tex. App.-Amarillo 1979, writ ref'd n.r.e.).
Appellees alleged Alfredo, in 2015, entered into an oral agreement with his long-time friend, Appellant David Alaniz, under which Alfredo transferred ownership of a number of horses to Alaniz's business, PBT Racing. In exchange, Alfredo and Alaniz planned to split expenses for the horses' boarding and care as well as any winnings they earned from horse racing. The horses under this agreement remained at 3 Netts' facility in Andrews and 3 Netts retained the AQHA certificates of registration. Despite their agreement, Alaniz did not pay his portion of the horses' expenses. Instead, Alfredo, through 3 Netts, continued to provide for their training, boarding and care.
Appellees claimed Alfredo and Alaniz, in 2020, entered into a new oral agreement under which Alfredo would forgive Alaniz's debts for the care of the horses under the 2015 agreement. Alfredo would also convey a 2015 GMC Denali to Alaniz. For his part, Alaniz would convey 14 horses to Sinay Racing, an entity owned by Sanchez's brother, Appellee Antonio Carrasco.
Consistent with the 2020 agreement, Alfredo conveyed the Denali to Alaniz and forgave Alaniz's indebtedness. Regarding Alaniz's obligation on the transfer of the horses, Alfredo had a priority system, in that he wanted to have the stallions and the racehorses transferred first. Jackie Cordova, Alfredo's niece and 3 Netts' horse trainer, had Alaniz sign blank AQHA transfer reports, which she would then fill out and submit to AQHA in order to transfer the horses from Alaniz to Sinay Racing. Alaniz signed blank AQHA transfer reports to effectuate the transfer of all 14 horses to Sinay Racing. Cordova witnessed Alaniz sign the AQHA transfer reports, and she testified that Alaniz never objected to the practice of signing blank forms to allow her to later effectuate the transfers. According to Cordova, Alaniz fully understood which horses were being transferred.
Nine of the 14 horses were successfully transferred from Alaniz to Sinay Racing prior to Alfredo's death, with the five remaining horses at issue being four mares and one stallion boarded in Mexico. Alaniz acknowledged at trial that he signed transfer reports for the nine horses initially transferred and that those nine horses were validly conveyed to Sinay Racing. With respect to the five horses that had not been transferred prior to Alfredo's death, however, Alaniz contended he did not transfer those five horses and that his signatures on the transfer reports for those five horses were forgeries. Eight days after Alfredo's death, on April 28, 2022, Alaniz contacted AQHA to dispute the transfer of the five horses. AQHA in turn notified Sinay Racing and Carrasco of the dispute. AQHA reported it could not update ownership records of the Horses without a signed transfer report or certified copies of court documents establishing the rightful ownership of the named horses.
Other events had also occurred in the interim period. Within four days of Alfredo's death, Alaniz and Appellant Gaytan began securing the five horses in question, either by traveling themselves to retrieve them from their boarding location, or by directing someone else to do so. At each location, Gaytan paid any outstanding amounts owed and obtained the horses' release. Gaytan, Alaniz, or someone under their direction eventually moved each horse to El Paso, where Gaytan resided. Within a month-and-a-half of Alfredo's death, Alaniz and Gaytan had taken possession of all five horses.
Meanwhile, Alfredo's funeral was held on April 25, 2022. Before the funeral, Cordova became aware that questions were arising concerning ownership of certain horses, and there was an issue with recovering some of the horses that had already been transferred to Sinay Racing. Cordova testified that Sanchez asked her whether someone might be trying to get the mares. Cordova thought it necessary to inform Sanchez of Alfredo and Gaytan's many years' long affair, lasting up until the time of his death, to explain why there might be problems with picking up the horses. After Sanchez learned of the affair, Gaytan heard that Sanchez did not want her present at Alfredo's funeral. Gaytan did not attend.
On April 26, six days after Alfredo's death and one day after his funeral, Gaytan called the Midland County Sheriff's Department for the purpose of making a report of stolen property. Gaytan alleged she had heard that Sanchez was moving her property previously stored at 3 Netts' Midland yard under a rental agreement with Alfredo. Because the sheriff's department did not take reports over the phone, Gaytan travelled to Midland in person and met with an investigator on May 9, 2022. In her report, Gaytan accused Sanchez of theft of property, including several vehicles and pieces of equipment stored at the 3 Netts' Midland storage yard.
After continued communication with the Midland County Sheriff's Department, at the end of June, Gaytan emailed the investigator's sergeant, complaining of inaction and threatening to file a complaint with internal affairs. On September 19, 2022, the sergeant executed a probable cause affidavit claiming theft of at least $157,000, based on Gaytan's valuation estimates. That same day, a Midland County justice of the peace issued a warrant for Sanchez's arrest. As a result, Sanchez appeared in Midland's "Crime Stoppers" report. Two weeks later, as Sanchez was leaving the country with a church group, she was handcuffed and detained by authorities at the Houston airport for over two hours, based on suspicion of theft.
Sanchez later hired an attorney, and the Midland County District Attorney quickly dropped the charges, stating there was insufficient evidence to prove intent on Sanchez's part. Sanchez's attorney informed Gaytan's attorney that Gaytan was free to pick up her property, but she waited roughly three months to do so.
On December 19, 2022, Carrasco d/b/a Sinay Racing and 3 Netts filed suit against Alaniz and Gaytan. Plaintiffs brought claims of conversion of the horses and sought declaratory judgment that the transfer reports from Alaniz to Sinay Racing were valid. Sanchez later joined the lawsuit, bringing a claim of malicious prosecution against Gaytan. Alaniz and Gaytan answered with a general denial and a number of affirmative defenses. Alaniz and Gaytan also counterclaimed for declaratory judgment on the ownership of the horses and the invalidity of the transfer reports.
After a four-day trial, the jury determined that Sinay Racing owned the five disputed horses; that Alaniz and Gaytan converted those horses; and that Gaytan maliciously prosecuted Sanchez. The jury awarded actual and exemplary damages, along with attorney's fees, against Alaniz and Gaytan. Separately, Alaniz and Gaytan filed motions to disregard the jury findings against each of them and for the court to render a take nothing judgment in their favor on all claims. Neither Alaniz nor Gaytan filed a motion for new trial.
The trial court later entered judgment in line with the jury's verdict on both the conversion and malicious prosecution claims, while modifying some of the damage awards. The trial court declared that Sinay Racing owned the five horses at issue and neither Alaniz, PBT Racing, nor Gaytan had any ownership interest in them. The trial court awarded attorneys' fees both at trial and on appeal.
This appeal followed.
II. Issues on Appeal
Appellants raise six evidentiary challenges on appeal. In their first two issues, Gaytan challenges the legal and factual sufficiency of the evidence supporting the jury's finding of malicious prosecution against her. In their third and fourth issues, Appellants challenge the legal and factual sufficiency of the evidence supporting the jury's finding of conversion against Alaniz and Gaytan. In their fifth and sixth issues, Appellants challenge the legal and factual sufficiency of the evidence supporting the jury's finding of Sinay Racing's ownership of the disputed Horses.
As a threshold matter, we first address Appellants' failure to file a motion for new trial on the sufficiency of the evidence to support the jury's verdict. To preserve error on a complaint of factual insufficiency of the evidence to support a jury finding, a party must file a motion for new trial as a prerequisite to the appeal. Tex.R.Civ.P. 324 (b)(2); In re D.T., 625 S.W.3d 62, 75 n.8 (Tex. 2021). Because Appellants did not move for new trial on any points, they failed to preserve error on their factual insufficiency complaints on appeal. See Tex. R. Civ. P. 324(b)(3); Tex. R. App. P. 33.1; Murray v. Alvarado, 438 S.W.3d 880, 886 (Tex. App.-El Paso 2014, pet. denied). We proceed, then, only on Appellants' three remaining issues-issues one, three, and five, which all challenge the legal sufficiency of the evidence to support affirmative jury findings.
III. Standard of Review
The ultimate test of legal sufficiency is whether the evidence "would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We reverse the fact-finder's determination only if the evidence presented in the trial court would not enable a reasonable and fair-minded fact-finder to reach the judgment under review. Tex. Dept. of Transp. v. Flores, 576 S.W.3d 782, 791 (Tex. App.-El Paso 2019, pet. denied) (citing City of Keller, 168 S.W.3d at 827). We sustain a legal sufficiency challenge "when, among other things, the evidence offered to establish a vital fact does not exceed a scintilla." Kroger Tex. Ltd. v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006) (citing City of Keller, 168 S.W.3d at 810). "More than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Flores, 576 S.W.3d at 791 (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)).
In considering the legal sufficiency of the evidence to support a jury's verdict, "we credit evidence that supports the verdict if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Suberu, 216 S.W.3d at 793; Flores, 576 S.W.3d at 791 (citing City of Keller, 168 S.W.3d at 827). We may not substitute our judgment for that of the fact-finder so long as the evidence falls within a zone of reasonable disagreement. City of Keller, 168 S.W.3d at 822; City of El Paso v. Ramirez, 633 S.W.3d 246, 253 (Tex. App.-El Paso 2021, pet. denied). We remain mindful that the fact-finder is "the sole judge of the credibility of the witnesses and the weight to be given to their testimony." Region XIX Serv. Ctr. v. Banda, 343 S.W.3d 480, 489 (Tex. App.-El Paso 2011, pet. denied) (citing Golden Eagle Archery v. Jackson, 116 S.W.3d 757, 761-62 (Tex. 2003)).
IV. Malicious Prosecution
In the first issue, Appellants claim there was legally insufficient evidence to support the jury's finding that Gaytan committed malicious prosecution against Sanchez.
Malicious prosecution causes of action protect those unjustifiably subjected to criminal proceedings. Suberu, 216 S.W.3d at 792. This protection, however, "must sometimes yield to society's greater interest in encouraging citizens to report crimes, real or perceived." Id. The elements of proof that must be established reflect this societal balance, id., so we strictly apply them. Pettit v. Maxwell, 509 S.W.3d 542, 547 (Tex. App.-El Paso 2016, no pet.). In order to establish malicious prosecution, a plaintiff must show:
(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.Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997); Gonzalez v. Grimm, 479 S.W.3d 929, 934 (Tex. App.-El Paso 2015, no pet.); Hernandez v. Porter, 406 S.W.3d 789, 792 (Tex. App.-El Paso 2013, pet. denied); see Suberu, 216 S.W.3d at 792 n.3. Here, Appellants only challenge the elements of causation (initiation or procurement) and absence of probable cause, arguing there was no evidence of either element to support the jury's verdict. We address each challenged element in turn.
A. Causation: initiating or procuring a criminal prosecution
To establish the causation element required of a malicious prosecution claim, a plaintiff must establish that the defendant "initiat[ed] or procure[d]" criminal proceedings against her. Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 293 (Tex. 1994) (discussing Restatement (Second) of Torts (hereinafter "Restatement") § 653); Hernandez, 406 S.W.3d at 793-94. "A person initiates a criminal prosecution if [s]he makes a formal charge to law enforcement authorities." Lieck, 881 S.W.2d at 292 (citing Restatement § 653 cmt. c ("one who personally or by a third person for whose conduct he is responsible under the law of agency, presents to a magistrate a sworn charge upon which a warrant of arrest is issued, initiates the criminal proceedings")). Initiating prosecution means executing the charging instrument which goes before the magistrate, who then may issue an arrest warrant. Gunville v. Gonzales, 508 S.W.3d 547, 557 (Tex. App.-El Paso 2016, no pet.); cf. Lieck, 881 S.W.3d at 292 ("Initiation . . . would be demonstrated by evidence that defendant filed formal charges against plaintiff[.]")
Procuring the prosecution, on the other hand, occurs if a person's actions are "enough to cause the prosecution, and but for [her] actions the prosecution would not have occurred." Lieck, 881 S.W.2d at 293; Hernandez, 406 S.W.3d at 794. A person does not procure a criminal prosecution when the decision whether to prosecute is left to the discretion of another, including a law enforcement official or the grand jury, unless the person provides material information which [she] knows is false and the false information caused a criminal prosecution. Hernandez, 406 S.W.3d at 794 (citing King v. Graham, 126 S.W.3d 75, 78 (Tex. 2003) (per curiam)). Here, because there is no evidence of the defendant initiating a formal charge nor executing a charging instrument, the causation element may only be established on the basis of procuring a prosecution. Thus, we limit our inquiry to whether her actions established that she procured or caused the prosecution, and but for her actions it would not have occurred.
Gaytan contacted the Midland County Sheriff's Department on the day after Alfredo's funeral and, about two weeks later, travelled to Midland for the purpose of reporting Sanchez for the theft of seven vehicles and trailers that had been stored at 3 Netts' Midland storage yard. Gaytan testified at trial that she told the Midland County Sheriff's Office she wanted to pursue charges against Sanchez for not returning her property. When Gaytan met with the officer in Midland, she told him Alfredo had passed in March 2022, and since then, she had attempted to retrieve her property through his wife, Sanchez. Contrary to this evidence, it was established at trial that Alfredo died on April 20, and Gaytan admitted she had not contacted Sanchez before she had reported her for theft. In that period, she actually had not been dealing with Sanchez at all. Although Gaytan reported to the officer that locks had been changed on the property, she admitted at trial she did not know whether the information was true or not.
The officer's report stated that Gaytan had tried to retrieve her property. While trying, she reported she was told not to come back to the property. Gaytan testified at trial that this aspect of the report did not happen. She denied that she reported this information to the officer. Gaytan testified that after the officer told her on May 9 that she needed to send a demand letter to Sanchez, she followed the instruction and sent a letter. Even though that letter was returned to Gaytan as "undelivered," she told the officer that she had not received any response to the demand letter that she had sent out.
In her initial reporting, Gaytan valued her allegedly stolen property at over $150,0000. Through the course of their investigation, the sheriff's department determined that only five of the seven vehicles reported as stolen were actually covered under the rental agreement. One of those vehicles was found to be titled under someone other than Gaytan, and although she reported she had bought it, she did not provide documentation confirming her purchase. At that point, the vehicle was removed from the report. A second vehicle, also not covered by the rental agreement, was found to be titled in Alfredo's name in Texas and in Gaytan's name in New Mexico. Gaytan was asked to explain, and no explanation was given. On this basis, this vehicle was not entered into the system.
Gaytan also reported to law enforcement that she had lost wages by not working her trucks. She admitted at trial, however, that the equipment had been in storage for a year and a half. Gaytan valued an allegedly operative recreational vehicle at $0 in her bankruptcy schedule, which she filed before trial. Yet, she had valued this item at $65,000 in her report to law enforcement, bringing the total value of the allegedly stolen property above the $150,000 minimum required for felony theft in the second degree. Further, despite her complaint about losing wages, when informed that she was free to pick up her vehicles, she waited three months before retrieving them.
After continued communication with the Midland County Sheriff's Department, at the end of June, Gaytan emailed the investigator's sergeant, complaining of inaction and threatening to file a complaint with internal affairs. On September 19, 2022, the sergeant executed a probable cause affidavit claiming theft of over $150,000, based on Gaytan's valuation estimates.
That same day, a Midland County justice of the peace issued a warrant for Sanchez's arrest. As a result, Sanchez appeared in Midland's "Crime Stoppers" report as a wanted fugitive, who should be considered armed and dangerous by members of the public. Two weeks later, as Sanchez was leaving the country with a church group, she was handcuffed and detained by authorities at the Houston airport for over two hours, based on a suspicion of theft.
Considering the totality of the evidence and the jury's role in determining the credibility of the witnesses and the weight to be given their testimony, we conclude that more than a scintilla of proof supported its determination that Gaytan provided material information to law enforcement that she knew to be false, and the false information caused a criminal prosecution of Sanchez. See Hernandez, 406 S.W.3d at 794 Suberu, 216 S.W.3d at 793; Banda, 343 S.W.3d at 489.
B. Probable cause
Relatedly, the additional element of probable cause that is required of a malicious prosecution claim, "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." Suberu, 216 S.W.3d at 792-93 (quoting Richey, 952 S.W.2d at 517). To start, we must presume that "the defendant acted reasonably and had probable cause to initiate criminal proceedings." Id. (citing Richey, 952 S.W.2d at 517). "To rebut this presumption, the plaintiff must produce evidence that the motives, grounds, beliefs or other information upon which the defendant acted did not constitute probable cause." Id. (citing Richey, 952 S.W.2d at 518). If the plaintiff meets this burden, "the defendant is then required to carry the burden of proving the existence of probable cause." Pettit, 509 S.W.3d at 547. Whether probable cause existed is generally a question of law for the trial court; but if the underlying facts are in dispute, as here, the factual contest presents a mixed question of law and fact, which is resolved by the jury. Richey, 952 S.W.2d at 518; Akin v. Dahl, 661 S.W.2d 917, 920 (Tex. 1983).
"Texas courts have consistently held that probable cause should be evaluated from the perspective of the person or entity who made the report to law enforcement authorities, at the time that the report was made." Digby v. Tex. Bank, 943 S.W.2d 914, 920 (Tex. App.-El Paso 1997, writ denied) (emphasis in original); see Pettit, 509 S.W.3d at 551 ("[N]one of those matters are relevant to what facts [the defendant] knew when she reported the matter to the police at the outset."); French v. French, 385 S.W.3d 61, 67 (Tex. App.-Waco 2012, pet. denied) ("The subsequent probable-cause determinations of the investigating officer and the judge who issued the arrest warrant are irrelevant to whether [the defendants] reasonably believed that [the plaintiff] had stolen money . . . at the time they reported the theft.").
Gaytan initially contends Sanchez did not rebut the presumption that she acted reasonably. "Evidence of motives that undermine the presumption of reasonable belief include prior bad relations, preexisting debt, racial animus, or any private motivation to harm." S. Tex. Freightliner, Inc. v. Muniz, 288 S.W.3d 123, 134 (Tex. App.-Corpus Christi-Edinburg 2009, pet. denied); see Tranum v. Broadway, 283 S.W.3d 403, 414-16 (Tex. App.-Waco 2008, pet. denied).
Sanchez argues she rebutted the probable-cause presumption by adducing evidence that Gaytan harbored a private motivation to harm her-i.e. that Gaytan, Alfredo's mistress, was jealous of her and knew that Alfredo's practice of generating revenue for Gaytan's business had ended with his death.
Sanchez points to the timing of the criminal complaint, with Gaytan making the initial call to authorities the day after Alfredo's funeral, which Sanchez did not want her to attend, and the full report in person less than two weeks later. During this same timeframe, there was an ongoing dispute over the five horses in question, with Alaniz and Gaytan making assertions of ownership of the horses prior to the time Gaytan made the call to the sheriff's department. Gaytan's involvement in the procurement of the five disputed horses was demonstrated through the payments she made to boarding facilities to facilitate the horses' release, the use of her vehicle was used to transport some of the horses, and the eventual transport of the horses to her hometown of El Paso.
Demonstrating further financial animus, Gaytan acknowledged that she profited financially from her relationship with Alfredo. He encouraged her to start her trucking company whereby she purchased three trucks and leased them to 3 Netts for use in its transportation business. As 3 Netts was run by Alfredo and Sanchez, it was reasonable for the jury to infer that, after Alfredo's death, and having found out about their affair, Sanchez would no longer direct 3 Netts' business to Gaytan.
And finally, when asked whether she wanted to see Sanchez arrested, Gaytan replied, "I d[id] want to see her arrested, because it seems like she always seems to want to take stuff that does not belong to her."
Based on the totality of the evidence, the jury reasonably determined that Gaytan had a private motivation in reporting Sanchez for theft when she knew the ownership of the horses had been disputed. This evidence was more than the scintilla of proof required to defeat the presumption that Gaytan acted reasonably in reporting Sanchez for theft. See Suberu, 216 S.W.3d at 793; see also Muniz, 288 S.W.3d at 134. The presumption of reasonable action thus disappeared, and the burden of proving probable cause shifted back to Gaytan. See Pettit, 509 S.W.3d at 547.
Gaytan next asserts that there was no evidence to support the malicious prosecution claim because she established probable cause of theft on Sanchez's part. A party attacking the legal sufficiency of the evidence supporting an adverse finding on an issue on which it had the burden of proof must demonstrate that the evidence conclusively establishes all vital facts in support of the issue. Gilbreath v. Horan, 682 S.W.3d 454, 497 (Tex. App.-Houston [1st Dist.] 2023, no pet.). Stating the review of the shifting burden of proof another way, then, in order to prevail on this point, Gaytan was required to conclusively establish that she acted with probable cause. "A matter is conclusively established only if reasonable people could not differ as to the conclusions to be drawn from the evidence." Id.
Gaytan cites the following evidence to demonstrate that she conclusively established probable cause. She claims the property in issue was, in fact, hers, and she provided a written agreement between her and Alfredo for the storage of the vehicles and equipment.
Notably, neither Appellants nor Appellees explicitly discuss the "unlawful appropriation" or "intent to deprive" elements of theft as expressed in the Penal Code. See Tex. Penal Code Ann. § 31.01(a). We question whether Sanchez's continued storage of Gaytan's property under Alfredo's storage agreement with her, the rights to which Sanchez may have inherited upon Alfredo's death, meets the Penal Code's definition of unlawful appropriation. Because the parties have not addressed these elements of theft in these terms, we look only at Gaytan's contention that Sanchez's continued retention of the property demonstrated probable cause.
Gaytan further cites a demand letter she sent to Sanchez per instruction from the sheriff's office, Sanchez's response to the sheriff's department's inquiry by stating she would contact her attorney about it, the extended period of time the property was under Sanchez's control, and certain communications between Sanchez's attorney and the sheriff's department.
The evidence Gaytan cites beyond proof of ownership is irrelevant to what facts Gaytan knew when she reported the matter to the sheriff's department. See Pettit, 509 S.W.3d at 551. The record is unclear whether Gaytan implicated Sanchez in her initial phone call to the department the day after Alfredo's funeral or not until she went in person to make her report on May 9. Assuming that Gaytan did not implicate Sanchez until May 9 (because Appellees concede this latter date may be the appropriate one to consider), we may not consider events past that initial report as evidence of probable cause. Thus, Gaytan's evidence of sending a demand letter at the investigator's suggestion, Sanchez's response to the call from the sheriff's department, and communications between Sanchez's attorney and the sheriff's department provide no proof of probable cause.
Gaytan provided no evidence that she contacted Sanchez seeking return of her property prior to reporting Sanchez for theft. Nor did she present evidence that she possessed information at that time conclusively proving Sanchez refused to return her equipment. Rather, she testified the equipment was being stored pursuant to a lease agreement. Gaytan's claim that she received a phone call from someone on the day after Alfredo's funeral telling her someone was moving her equipment, without more, does not conclusively prove Sanchez committed either the "unlawful appropriation" or "intent to deprive" elements of theft.
The fallacy in Gaytan's argument is demonstrated specifically by her own summation of her argument as to probable cause: "There was probable cause of Theft by Sanchez's continued retention of the property." Sanchez's "continued retention of the property" must be analyzed as of the time Gaytan made her report to the sheriff's department. See Digby, 943 S.W.2d at 919-20. There was no evidence that Sanchez wrongfully retained the property between Alfredo's death and Gaytan's May 9 report.
The evidence before the jury did not conclusively prove the existence of probable cause to support a theft prosecution. See Gilbreath, 682 S.W.3d at 497. Instead, the jury reasonably determined, based on the evidence presented, that there was a lack of probable cause in Gaytan's reporting of Sanchez for theft on May 9. See Akin, 661 S.W.2d at 920; Flores, 576 S.W.3d at 791.
We overrule Gaytan's first issue.
V. Conversion and Ownership
In their third and fifth issues, Appellants Alaniz and Gaytan challenge the legal sufficiency of the evidence to support the jury's affirmative finding of conversion and ownership favorable to Carrasco d/b/a Sinay Racing.
"Conversion is the unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another to the exclusion of, or inconsistent with, the owner's rights." Vibbert v. PAR, Inc., 224 S.W.3d 317, 321 (Tex. App.-El Paso 2006, no pet.) (citing Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971). A plaintiff seeking to establish a claim of conversion must prove that:
(1) The plaintiff owned or had legal possession of the property or entitlement to possession;
(2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner;
(3) the plaintiff demanded return of the property; and
(4) the defendant refused to return the property.Id. Here, Appellants contest only the jury's determination on the element of ownership-that is, they assert that the evidence established that Alaniz owned of the five horses in question, and reversal of the jury's finding on ownership defeats both Sinay Racing's declaratory judgment and conversion claims.
Regarding evidence of ownership of the horses, Appellants raise the lack of any written agreement pertaining to the care, maintenance, and training of the horses. They further cite the AQHA registrations and note that the registered owner of each of the five horses was PBT Racing, owned by Alaniz, and that Alaniz contested with AQHA the transfer of ownership to Sinay Racing. They concede Alaniz signed transfer reports on nine horses, but argue he testified that his signatures on the remaining five transfer reports, which had different dates and were signed in different inks, were forgeries.
Appellees point to the signed transfer reports, by which Alaniz transferred ownership to Sinay Racing. They advance Cordova's testimony that she witnessed Alaniz sign all 14 transfer reports, knowingly transferring ownership of the horses to Sinay Racing. Sanchez also testified that the signatures on the transfer reports belonged to Alaniz.
Appellees note Cordova and Sanchez both testified that the five horses always remained in the possession of 3 Netts, along with their corresponding registration certificates, and 3 Netts paid all expenses associated with the horses. Alaniz produced no documentation that he ever paid anything for their care. Cordova and Sanchez also testified that Alaniz and Alfredo had an agreement that Alaniz would transfer 14 horses to Sinay Racing, while Alfredo would forgive Alaniz's debt and transfer a Denali to him. Alaniz received the Denali and debt forgiveness-and went on to transfer nine horses, which he admitted was rightful-but, upon Alfredo's death, Alaniz contested the transfer of the remaining five horses.
Based on the totality of the evidence, it remained within the purview of the jury, as the sole judge of the credibility of the witnesses and the weight to give their testimony, to determine that Sinay Racing, not Alaniz, owned the Horses. See Banda, 343 S.W.3d at 489; Quiroz v. Llamas-Soforo, 483 S.W.3d 710, 718 (Tex. App.-El Paso 2016, pet. dism'd). Because the evidence amounted to more than a scintilla upon which a reasonable jury could determine Sinay Racing owned the Horses, it was legally sufficient to support the jury's determination. See Flores, 576 S.W.3d at 791; Suberu, 216 S.W.3d at 793.
We overrule Appellants' third and fifth issues.
VI. Conclusion
We affirm.