After he=20
was arrested for criminal trespass, appellant, Nicholas=20
Summerville, sued=20
appellees, Allied Barton Security Services, individually and d/b/a =
Allied=20
Security, and Tom Smith, for malicious prosecution. The trial =
court=20
granted summary judgment for appellees, and, in two issues on =
appeal,=20
Summerville contends that the summary judgment was improper =
because (1)=20
appellees initiated his prosecution on the basis of something =
other than a=20
reasonable belief that he was guilty and (2) Smith admitted that =
he did=20
not have any knowledge or evidence that Summerville was guilty of =
criminal=20
trespass at the time that the prosecution was initiated. We=20
affirm.
There had=20
been several jewelry store robberies in some area shopping malls.=20
According to witnesses, they all occurred the same way: an=20
African-American male would ask to see an expensive ring, and, =
once the=20
salesperson gave him the ring, he would then run from the store =
with the=20
ring. On January=20
21, 2005, Luis Aguilar, an employee at the Helzberg Diamonds in =
Baybrook=20
Mall, assisted the appellant who had asked to see rings in the =
$1000=20
range. Aguilar said appellant, an African-American male wearing a =
ripped=20
jacket, appeared nervous with sweat on his forehead, and he had an =
unknown=20
white substance on his hand. Appellant also appeared reluctant to =
touch=20
anything while in the store. After appellant asked to see the most =
expensive diamond in the store, Aguilar asked a co-worker to =
notify mall=20
security. Mary Ann=20
Flores, who also worked at Helzberg Diamonds, had seen appellant =
enter the=20
store the previous week and ask to use the telephone behind the =
sales=20
counter. At that time, Flores responded that customers were not =
allowed=20
behind the counter, but told appellant that he could use the phone =
on the=20
sales floor. Flores said appellant got very angry and accused her =
of=20
discriminating against him because he was black. Flores also =
explained=20
that she had been asked to help with appellant that day because he =
had=20
asked to see the most expensive diamond in the store. She asked if =
he had=20
an account; he said he did, but he refused to show any =
identification=20
despite being asked for it three times. Finally, appellant asked =
her to=20
leave so that he could concentrate on one salesperson. Flores also =
noticed=20
the white substance on appellant's hand, which he attributed to =
chemicals=20
that he had handled in the lab at NASA, his alleged employer. =
Tom Smith,=20
the director of security at the Baybrook Mall, noticed appellant =
acting=20
suspiciously while shopping in Helzberg Diamonds. Lauren Barkdull, =
a=20
security officer on duty at Baybrook Mall, headed toward the mall =
security=20
office, which is located in a restricted access hallway behind the =
stores.=20
She saw appellant walk past the security office door in the =
restricted=20
hallway, and he walked back and forth a couple times before he =
came in and=20
asked her if someone had called security on him. She noticed that=20
appellant appeared nervous and was sweating, and she told him that =
no one=20
had notified them. Appellant walked back down the restricted =
hallway into=20
the mall. Officer=20
Thornburg from the Houston Police Department, was working at the =
mall as a=20
security officer for Dillard's Department Store. Mall security =
notified=20
him that there was a shopper who matched the description of the =
"snatch=20
and grab" suspect. Officer Thornburg followed appellant and saw =
him enter=20
the food court. Security dispatch informed him that appellant had =
entered=20
an area restricted to employees only. Officer Thornburg stopped =
appellant=20
as he was leaving the mall. Because he had no backup, Officer =
Thornburg=20
handcuffed appellant and took him to the security office. He had =
to=20
maintain a firm grip because appellant repeatedly slowed down and =
tried to=20
pull away. Appellant=20
told Officer Thornburg that he worked for NASA and had come to =
Helzberg=20
Diamonds on his lunch hour to buy his wife a ring. He followed the =
mall=20
security officer into the hallway to find out if he was being =
watched.=20
Appellant told Officer Thornburg that he did not see the sign on =
the door,=20
which noted that there was no public access. Appellant was charged =
with=20
criminal trespass. During his deposition in this malicious =
prosecution=20
case, Officer Thornburg testified that he got a call over the =
radio that=20
someone was running through the access hallway behind doors =
bearing signs=20
that read "Authorized Personnel Only." His initial conclusion was =
that "he=20
was trying to evade us." Thornburg testified that Summerville's =
"actions=20
leading up to [the arrest] were highly suspicious," and he had =
probable=20
cause to arrest Summerville for criminal trespass." Thornburg =
acknowledged=20
that the facts and suspicions that lead him to believe that =
Summerville=20
was committing a crime came from information given to him by other =
people. Summerville=20
stated that, under the direction of Smith, he was handcuffed and =
forcibly=20
detained by Officer Thornburg for more than four hours in the mall =
security office before being exonerated as the "snatch and grab" =
jewelry=20
thief. In his deposition during this malicious prosecution case,=20
Summerville testified that Officer Thornburg drew his gun, put it =
up to=20
Summerville's head, and said, "Get the fuck up against the God =
damn wall=20
and you better not fucking move. Get up against the wall you son =
of a=20
bitch." Summerville believed that Tom Smith had Officer Thornburg =
detain=20
him so that he could be identified for the jewelry "snatch and =
grabs." He=20
believed this because Smith yelled, "That's him" when Thornburg =
detained=20
him. Summerville further testified that, after he was exonerated =
for the=20
robberies and while he was still being detained: Then Tom=20
Smith - and then he told me after the room he said, "You niggers =
think you=20
always have your run of the mall." And then I told him - I said, =
"Man this=20
is just straight racism." He said, "yeah, boy, I'm going to show =
you how=20
much of a bigot I am, nigger." He said, "I can't stand you niggers =
and=20
Mexicans." I never had anybody talk to me like that and I'm a =
senior=20
engineer on a rocket booster propulsion for the space shuttle.=20
Summerville=20
sued AlliedBarton Security Services, Individually and d/b/a Allied =
Security, and Tom Smith alleging that he had been racially =
profiled,=20
verbally abused, and falsely accused of criminal trespass, which =
caused=20
him great embarrassment, mental anguish, and humiliation. =
Summerville=20
stated that the "charges were soon thereafter dropped by the =
Harris County=20
District Attorney for lack of probable cause." The=20
defendants filed a traditional motion for summary judgment in =
which they=20
contended there was probable cause for Summerville's arrest =
because "it is=20
undisputed that [Summerville] entered an area of the mall without=20
effective consent and there were signs posting notice that the =
entrance=20
was forbidden." In two=20
issues, Summerville contends that the summary judgment was =
improper=20
because (1) appellees initiated his prosecution on the basis of =
something=20
other than a reasonable belief that he was guilty and (2) Smith =
admitted=20
that he did not have any knowledge or evidence that Summerville =
was guilty=20
of criminal trespass at the time that the prosecution was=20
initiated. A =
plaintiff=20
in a malicious criminal prosecution claim must =
establish (1) the=20
commencement of a criminal prosecution against the =
plaintiff; (2)=20
causation (initiation or procurement) of the action by the=20
defendant; (3)=20
termination of the prosecution in the plaintiff's =
favor; (4) the=20
plaintiff's innocence; (5) the=20
absence of probable cause for the proceedings; (6) malice=20
in filing the charge; and (7) damage=20
to the plaintiff. Richey=20
v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). =
Here,=20
Summerville asserts that there was no probable cause. Probable =
cause is=20
defined as "the existence of such facts and circumstances as would =
excite=20
belief in a reasonable mind, acting on the facts within the =
knowledge of=20
the prosecutor [complainant], that the person charged was guilty =
of the=20
crime for which he was prosecuted." Id. The probable =
cause=20
element asks whether a reasonable person would believe that a =
crime has=20
been committed given the facts as the complainant honestly and =
reasonably=20
believed them to be before the criminal proceedings were =
instituted.=20
Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 792-93 =
(Tex.=20
2006); Richey, 952 S.W.2d at 517. Courts must presume =
that the=20
defendant acted reasonably and had probable cause to initiate =
criminal=20
proceedings. To rebut this presumption, the plaintiff must produce =
evidence that the motives, grounds, beliefs, or other information =
upon=20
which the defendant acted did not constitute probable cause.=20
Suberu, 216 S.W.3d at 793. To prevail=20
in a malicious prosecution case, the plaintiff must prove not only =
that=20
defendant commenced criminal proceedings against him and he is =
innocent of=20
the crimes charged, but also that the defendant lacked probable =
cause=20
and harbored malice toward him. Id. at 792. =
Malicious=20
prosecution actions involve a delicate balance between society's =
interest=20
in the efficient enforcement of the criminal law and the =
individual's=20
interest in freedom from unjustifiable and oppressive criminal=20
prosecution. Richey, 952 S.W.2d at 517. Accordingly, =
there is an=20
initial presumption in malicious prosecution actions that the =
defendant=20
acted reasonably and in good faith and had probable cause to =
initiate the=20
proceedings. Id. That presumption disappears once a =
plaintiff=20
produces evidence that the motives, grounds, beliefs, and other =
evidence=20
upon which the defendant acted did not constitute probable cause.=20
Id. at 518. The burden then shifts to the defendant to =
offer=20
proof of probable cause. Id. Whether=20
probable cause is a question of law or a mixed question of law and =
fact=20
depends on whether the parties dispute the underlying facts. =
Id.=20
When the facts underlying the defendant's decision to prosecute =
are=20
disputed, the trier of fact must weigh evidence and resolve =
conflicts to=20
determine if probable cause exists, as a mixed question of law and =
fact.=20
Id. It has long been true, however, that, "[w]hen the =
facts are=20
not contested, and there is no conflict in the evidence directed =
to that=20
issue, the question of probable cause is a question of law which =
is to be=20
decided by the court." Id. (quoting Ramsey v. =
Arrott, 64=20
Tex. 320, 323 (1885)); see also Landa v. Obert, 45 Tex. =
539, 543=20
(1876) ("[w]hat facts and circumstances amount to probable cause =
is a pure=20
question of law"). Probable cause in this case, in which the facts =
and=20
events leading up to Sommerville's arrest are undisputed, is =
therefore a=20
question of law for the court and not the trier of fact. See=20
Richey, 952 S.W.2d at 518. In issue=20
one, Summerville contends that the summary judgment was improper =
because=20
appellees initiated his prosecution on the basis of something =
other than a=20
reasonable belief that he was guilty. Because=20
lack of probable cause in this case is a question of law, the =
issue for=20
the Court is whether the undisputed facts underlying the decision =
to=20
prosecute support a reasonable belief that Summerville was guilty =
of=20
criminal trespass. A person commits the offense of criminal =
trespass if he=20
enters or remains on or in property of another without effective =
consent=20
or he enters or remains in a building of another without effective =
consent=20
and he (1) had notice that the entry was forbidden or (2) received =
notice=20
to depart but failed to do so. Tex. Pen. Code Ann. =A7 30.05 =
(Vernon Supp.=20
2006). "Notice" includes a sign posted on the property or at the =
entrance=20
to the building, reasonably likely to come to the attention of =
intruders,=20
indicating that entry is forbidden. Id. In the malicious=20
prosecution context, whether a person acted based upon probable =
cause is a=20
question of reasonableness. Richey, 952 S.W.2d at 517. =
That is,=20
it is a question of whether the complainant honestly and =
reasonably=20
believed that another's actions were criminal. =
Id. Here, it is=20
undisputed that Summerville entered an area of the mall without =
effective=20
consent and there were signs posting notice that the entrance was=20
forbidden. Summerville argues, however, that "the record is =
replete with=20
conflicting evidence regarding improper motives and racial bias in =
initiating the prosecution for criminal trespass." Citing to=20
Suberu, Summerville contends that evidence of racial =
animus=20
destroys the presumption of probable cause showing intention of a =
criminal=20
prosecution on the basis of something other than the reasonable =
belief of=20
a person's guilt. He further argues that, "based on evidence that=20
Summerville's prosecution for criminal trespass was based on =
motives,=20
grounds, and beliefs other than probable cause, summary judgment =
was=20
improper." We disagree. Summerville=20
does not deny that he entered a restricted area. He simply =
contends that,=20
because of racial profiling, he was arrested for doing so. We hold =
that=20
appellees carried their burden of proving that there was probable =
cause to=20
arrest Summerville for criminal trespass. Accordingly, we overrule =
issue=20
one. In issue=20
two, Summerville contends that Smith admitted that he did not have =
any=20
knowledge or evidence that Summerville was guilty of criminal =
trespass at=20
the time that the prosecution was initiated, thus negating =
probable cause=20
and establishing "impropriety of process." Summerville directs us =
to the=20
following exchange, which took place during Smith's =
deposition: Q. I mean=20
do you have any explanation for me today, Mr. Smith, as to, No. 1, =
why=20
you're listed as the complainant on Exhibit 1? Do you know =
why? A. First of=20
all, you - you're blending two different offenses. The offense =
that=20
Thornburg responded to was not a criminal trespass. He=20
responded to a complaint in a jewelry store of a suspicious male =
that was=20
believed by the complainant to the be the snatch-and-grab suspect. =
That's=20
what he was responding to. That's where the Glock came from. =
That's where=20
the arrest happened. How it=20
degenerated into a criminal trespass, you're going to have to ask=20
Thornburg. I didn't sign a complaint. I did not make a complaint. =
A=20
Houston policeman arrested him. A Houston policeman came and got =
him, and=20
that's about all I know about it. Q. You did=20
not initiate the complaint for criminal trespass against my=20
client? A. No,=20
sir. Q. Is that=20
what you're telling me? A. Yes,=20
sir. Q. And=20
that's because you don't have any evidence that he was guilty of =
criminal=20
trespass, correct? A.=20
Actually, I didn't until you told me about his following Lauren =
back into=20
a restricted area. Q. Well,=20
you knew about that before your deposition today. A. Yes,=20
sir. I didn't know it was in evidence. Summerville=20
contends that Smith, the complainant, did not believe Summerville =
was=20
guilty of criminal trespass, thus negating the probable cause and=20
rendering summary judgment improper. Thornburg testified, however, =
that he=20
needed "a person to file charges, to be the complainant," and =
Smith was "a=20
representative of the mall." Thornburg testified that he detained=20
Summerville because "he had gone back in the access hallways." =
Thus, it=20
was Thornburg, and not Smith, who initiated charges against =
Summerville=20
for criminal trespass. Citing to=20
Suberu, Summerville further argues that "racial animus =
can be the=20
basis of negating probable cause and proving that a defendant's =
motives do=20
not support a reasonable belief that the plaintiff was guilty of =
criminal=20
trespass." We disagree. Suberu stands for the proposition =
that,=20
once a plaintiff has produced evidence of racial animus, the =
presumption=20
that the defendant had probable cause is negated, and the burden =
shifts=20
back to the defendant to prove probable cause. Suberu, =
216 S.W.3d=20
at 793. Here, probable cause was established by the uncontested =
evidence=20
that Summerville entered a restricted area. We overrule=20
issue two. We affirm=20
the trial court's judgment. George C.=20
Hanks, Jr. Panel=20
consists of Justices Taft, Hanks, and Higley.
1 2.