Affirm and Opinion Filed June 29, 2021

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-19-01433-CV

JACOB OLIVER, Appellant

V.

ELINOR ROWAN, ROY ROWAN, AND JULIE ROWAN, Appellees

On Appeal from the 162nd Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-17-06001

MEMORANDUM OPINION

Before Justices Myers, Partida-Kipness, and Garcia

Opinion by Justice Myers

Jacob Oliver appeals the trial court’s judgment following a jury trial that he 

recover $500 damages and $3,000 attorney’s fees through trial from Elinor Rowan 

and that he take nothing from Elinor’s parents, Roy Rowan and Julie Rowan. Jacob 

brings five issues on appeal contending the trial court erred by (1) granting a directed

verdict for appellees on Jacob’s cause of action for fraud; (2) granting a directed 

verdict in favor of Roy and Julie for conspiracy to wiretap; (3) excluding Elinor’s 

arrest records; (4) refusing to allow Jacob to testify about his loss of earning 

capacity; and (5) failing to award appropriate attorney’s fees and costs. We modify 
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the judgment to award Jacob costs of court relating to his cause of action under the 

Texas Theft Liability Act, and we otherwise affirm the trial court’s judgment.

BACKGROUND

In early 2015, Elinor was working as a bartender at a restaurant, and Jacob

was a medical student at University of Texas Southwestern Medical School (UTSW)

studying to become a physician. They began dating, and Elinor moved into Jacob’s 

apartment at UTSW in September 2015. Their relationship was troubled. Several 

incidents are relevant to this case.

Elinor testified that on April 23, 2016,1at the apartment, Jacob grabbed her, 

pushed her onto the bed, and started to choke her. She bit him on the arm, and he 

let her go. That night, after work, Elinor did not go back to the apartment but went 

to her parents’ house, where she lived until May 11. The next day, April 24, she 

went to the apartment with her father when Jacob was there to get some of her 

possessions. On April 28, Jacob went to the restaurant where Elinor worked. As 

Elinor was leaving, Jacob tried to push her into her car and to steer her towards his 

car. She got away from him, but she testified she cut her arm during the altercation. 

Between then and May 8, she went to the apartment one or two times when Jacob 

was not there to get some of her belongings. 

1 Unless otherwise indicated, all dates are in 2016.
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Jacob testified he believed someone was coming into the apartment when he 

was not there and taking things. On April 27, he picked up a prescription for 

Adderall. When it went missing, either from his car or from the apartment, he 

reported the theft of the Adderall to his physician. Jacob asked the apartment 

management to rekey his apartment.

On May 8, at 1:45 a.m., as Elinor was headed home from work, a Rockwall 

police officer pulled her over for a traffic violation, crossing into the opposing traffic 

lane. The officer concluded Elinor’s driver’s license was invalid. After seeing an 

open alcohol container, a beer can, in Elinor’s car, the officer searched the car and 

found bottles of Adderall and some hydrocodone pills, both of which are controlled 

substances. The Adderall bottles indicated they were prescribed to Jacob. The 

officer asked, “Who is Jacob,” and Elinor said he was her fiancé. The officer asked

Elinor why she had the pills, and she said he “drove my car earlier.” The officer 

then arrested her. Her father bailed her out of jail the next day. Elinor was charged 

with possession of controlled substances and driving with an invalid license.

Elinor’s defense attorney told her she needed to get an affidavit from Jacob 

saying the pills found in her car were his and that he had left them in her car. A 

friend of Elinor’s who was a paralegal told her that if Jacob refused to sign the 

affidavit, then she should try to record Jacob saying that the pills were his.

Elinor’s father ordered a “spy gear” audio recorder that looked like and 

worked as a cellphone charger as well as an audio recorder. On May 11, Elinor 
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contacted Jacob and told him that after her arrest, her parents had kicked her out of 

their house. That was not true—her parents had not kicked her out of their house—

but was a ruse to get Jacob to let her move back into his apartment, which he did. 

Elinor’s father received the recorder on May 14, and Elinor began audio recording 

her time with Jacob on May 15.2

Elinor testified that on May 17, she was in Jacob’s car in the apartment 

parking lot, when he started driving quickly around the parking lot. She jumped out 

of his car and hid under a stairwell. When she looked out from the stairwell, she 

saw Jacob letting the air out of her car’s tires. She ran to the apartment with Jacob 

chasing her. When she got inside the apartment, she was holding a Taser, but she 

did not use it. Jacob knocked it out of her hand and stomped on it, breaking it. Jacob 

testified Elinor was drunk and that he let the air out of her tires because she told him 

she was going to drive. Elinor testified that she was not drunk at the time and that 

he deflated her tires to prevent her from leaving.

The next day, May 18, they had a physical altercation over a computer. The 

evidence shows Jacob told Elinor to get out of the apartment. Elinor went to a 

desktop computer, unplugged the cables from it, and tried to leave with it, telling 

Jacob it was her computer, that she had paid for it, and that she was taking it with 

2 The record includes some excerpts of the audio recordings as well as a 613-page transcription of the 

recordings.
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her.3Jacob tried to force the computer away from her. As they tussled over the 

computer, Elinor fell to the floor, injuring her tailbone. Jacob told her she could take 

the computer if she let him remove his information and move it to another hard drive. 

Elinor refused, saying she knew he would not give it back to her or that he would 

change the password on the computer. He also told her she could not take the 

computer because it contained patient files, and it would be a HIPAA violation for 

her to take the computer with the files. Elinor left for work, driving there on her 

flattened tires, and Jacob went to his mother’s house.

The next day, May 19, Elinor and her father returned to the apartment to get 

some of her belongings, and Elinor called the police. She told the UTSW police that 

Jacob had assaulted her the day before. She told the police she had recordings of 

her conversations with Jacob, and the officers asked for the recordings. Elinor’s 

father sent the police a fourteen-minute excerpt of the recording that included the

physical altercation over the computer.

The UTSW police informed the UTSW dean of medical students, Dr. Angela 

Mahalic, about the complaint against Jacob. Dr. Mahalic sent Jacob a letter 

informing him she had “received allegations that you have engaged in conduct that 

3 The actual ownership of the computer was disputed. Jacob maintained the computer was his because 

he had purchased it with his credit card. Elinor testified the computer was purchased using Jacob’s credit 

card so he could get the “points” for the purchase, but she testified she was the real purchaser of the 

computer and that it belonged to her because she had paid Jacob’s credit card bill that included the 

computer. Jacob testified Elinor paid the credit card bill as reimbursement for him paying the rent for her 

apartment in Rockwall when Elinor had failed to pay it. Elinor testified she provided Jacob with cash for 

the rent payment, but Jacob testified he pulled money out of his account to make the rent payment. The 

computer’s actual ownership is not relevant to any issue in the case.
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endangers the health or safety of another person and the safety and security of UT 

Southwestern property or premises” in violation of the school’s policies. The letter 

stated that the complainant told the police that Jacob had flattened two tires on the 

complainant’s vehicle and “during an argument about a computer, you grabbed her 

and pushed her into a wall which resulted in visible bruising on her right arm.” The 

letter directed Jacob to meet with Dr. Mahalic the following Monday.

Dr. Mahalic testified that during the meeting, Jacob admitted arguing with 

Elinor on May 17, becoming angry, and letting the air out of her tires. Dr. Mahalic 

testified, “He said he knew it was wrong and he was sorry he did it, and that he had 

apologized for letting the air out of the tires.” Dr. Mahalic said Jacob “definitely 

admitted he did it in anger after a fight and argument.” Jacob did not tell Dr. Mahalic 

he let the air out of the tires because Elinor was drunk and had said she was going to 

drive. Concerning the incident with the computer on May 18, Jacob admitted 

grabbing the computer and struggling with Elinor over it, but he denied touching, 

hitting, or hurting her. After the meeting, Dr. Mahalic concluded there was sufficient 

evidence that Jacob violated school policy by letting the air out of Elinor’s tires on 

May 17, but there was insufficient evidence to conclude he had violated school 

policy in the May 18 struggle over the computer. On May 25, Dr. Mahalic sent 

Jacob notice that he was on disciplinary probation because of the May 17 incident. 

The notice informed Jacob of the steps to appeal the disciplinary action, but Jacob 

did not appeal this disciplinary action.
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On May 24, Elinor went to the apartment with some friends and movers and 

took her clothing and furniture. Jacob’s mother went there the next day; she noticed 

items belonging to Jacob were missing, and she called the police. 

On May 26, Jacob traveled to Florida, where he took the Step exam, which is 

an exam medical students must pass in order to continue in medical school. Jacob 

took the Step exam in Florida on May 31, and he passed it.

While Jacob was in Florida, Elinor was interviewed by UTSW Police 

Detective Cynthia Laredo about the incidents on May 17 and 18. The interview was 

video recorded. Elinor described what happened and wrote out a statement. Elinor 

showed Detective Laredo the bruises on her arms she said she sustained in the 

incident, and Detective Laredo took pictures of them. Based on the interview, 

Elinor’s written statement, her bruises, and the audio recording, Detective Laredo 

obtained an arrest warrant for Jacob.

On June 14, Jacob his attorney met with Detective Laredo, and his interview 

was also video recorded. Detective Laredo read Jacob the Miranda warnings. 

Jacob’s attorney asked Detective Laredo if Jacob was in custody, and Laredo said 

he was not in custody and that the warnings were precautionary. She did not tell 

Jacob or his attorney that she had a warrant for Jacob’s arrest. Jacob explained his 

version of events for May 17 and 18, including asserting that Elinor was intoxicated

on May 17 when he let the air out of her tires. Detective Laredo then played an 
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excerpt of Elinor’s audio recordings, and she told Jacob a warrant for his arrest had 

been signed the previous week and that he was under arrest.

The following week, Dr. Mahalic received a copy of the UTSW police report. 

After reviewing it, she sent Jacob “Notice of Disciplinary Action: Expulsion.” The 

notice stated Jacob was “expelled and permanently separated from UT Southwestern 

Medical School, effective immediately.” The notice informed Jacob of his right to 

“contest the charges before an impartial hearing officer.” The notice discussed the 

police report and referred to Elinor’s written statement and the audio recording.

Jacob requested a hearing to contest the disciplinary charges. A hearing was 

held before the dean of UT Southwestern Medical Center. At the beginning of the 

hearing, Jacob objected to the hearing going forward because he had not received 

the audio recording or color photographs showing Elinor’s bruises. Jacob asserted 

that under UTSW’s procedural rules for student disciplinary hearings, he had a right 

to review all the evidence. Dr. Mahalic explained she did not have the recording or 

the color photographs. She stated that the notice’s quotation from the recording 

came from the police report and not from her having heard the audio recording. Dr. 

Mahalic said the recording and color photographs would not be used in UTSW’s 

evidence against Jacob. Dr. Mahalic quoted the portions of the police report that 

discussed the recording. Dr. Mahalic explained that she had never heard the 

recording and had never had it in her possession. The dean presiding over the 

hearing determined that, because the recording and photographs would not be used 
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in evidence, Jacob did not have a right to review them before the hearing. The dean 

overruled Jacob’s objection and stated the hearing would proceed. Jacob stated that 

his expulsion without the opportunity to have a copy of the recording and 

photographs at the hearing was contrary to UTSW’s published policy, and he and 

his attorney then left the hearing. The hearing proceeded without Jacob present. The 

evidence included testimony from witnesses, including testimony from the officer 

who interviewed Elinor on May 19, Detective Laredo, and Dr. Mahalic. Dr. 

Mahalic’s decision to expel Jacob was upheld. Jacob had the right to appeal the 

result of the hearing to the president of the university, but he did not do so. 

On December 20, Elinor obtained a two-year protective order against Jacob. 

The order required Jacob to complete a batterer’s intervention and prevention 

counseling program. 

Concerning Jacob’s criminal assault charge, the assistant district attorney 

decided to dismiss that charge after listening to part of the audio recording. In 

agreement with Elinor and her family, the district attorney required Jacob to 

complete the batterer’s intervention and prevention counseling program, which he 

was already attending as required by the protective order. After he completed the 

program, the criminal charges against him were dismissed.

Elinor pleaded guilty to two counts of possession of controlled substances

listed in penalty groups 2 and 3. See TEX. HEALTH & SAFETY CODE ANN. §§ 

481.116, .117. She successfully completed a period of deferred-adjudication 
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probation for those charges. The court issued an order prohibiting law enforcement 

officials from disclosing the records of those cases. Another court entered an 

expunction order on three other cases relating to the May 8 arrest, two for possession 

of controlled substances not listed in a penalty group and one for driving with an 

invalid license. See id. § 481.119; TEX. TRANSP. CODE ANN. § 521.457.

Jacob brought this suit for damages against Elinor and her parents.4 Jacob 

alleged causes of action for defamation, trespass, illegal wiretap, theft/conversion, 

conspiracy to commit these torts, malicious prosecution, and fraud. Jacob demanded 

damages for loss to his earning capacity as a result of his being expelled from 

medical school. The trial court granted a directed verdict in favor of Elinor’s parents 

as to all claims against them and a directed verdict for Elinor and her parents on the 

claim of fraud. The remaining claims were submitted to the jury. The jury found 

that Elinor published a defamatory statement to a third party but that the defamatory 

statement was not false. The jury also found that Elinor committed theft and that the 

fair market value of the items she took was $500. The jury found Jacob failed to 

prove his causes of action against Elinor for trespass, illegal wiretap, and malicious 

prosecution. The parties submitted the issue of attorney’s fees for the theft cause of 

action to the trial court. Jacob and his attorney asserted $118,199.50 should be 

awarded for attorney’s fees for the theft cause of action through trial with additional 

4

Jacob also sued UTSW in federal court.
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amounts for appeal. The trial court awarded $3,000 attorney’s fees through trial, 

and $10,000 and $5,000 in the event of appeals to the court of appeals and supreme 

court, respectively.

FRAUD

In Jacob’s first issue, he contends the trial court erred by granting appellees’ 

motion for directed verdict on his claim of fraud. The standard of review for a

directed verdict is a legal sufficiency or “no evidence” standard of review. LG Ins.

Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632, 642 (Tex. App.—Dallas 2012, pet.

denied). In reviewing the legal sufficiency of the evidence, we must determine

whether the nonmovant produced more than a scintilla of probative evidence to raise

a fact issue on the material questions presented. Id. We consider all the evidence in

the light most favorable to the nonmovant, indulging every reasonable inference and

resolving any doubts against the movant. Merriman v. XTO Energy, Inc., 407 

S.W.3d 244, 248 (Tex. 2013). A directed verdict is improperly granted if the

respondent brings forth more than a scintilla of probative evidence to raise a genuine

issue of material fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003). “More than a scintilla of evidence exists when the evidence rises to a level

that would enable reasonable, fair-minded persons to differ in their conclusions.” Id.

(quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). 

“Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no
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more than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

To prevail on a claim of common law fraud by affirmative misrepresentation, 

a plaintiff must prove (1) the defendant made a material misrepresentation that was 

false; (2) the defendant (a) knew the representation was false or (b) made it 

recklessly as a positive assertion without any knowledge of its truth; (3) the 

defendant intended to induce the plaintiff to act upon the representation; and (4) the 

plaintiff actually and justifiably relied upon the representation and thereby suffered 

injury. JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 

653 (Tex. 2018); Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 

577 (Tex. 2001). 

To support the causation element of fraud, the plaintiff must prove proximate 

causation. S & I Mgmt., Inc. v. Choi, 331 S.W.3d 849, 856 (Tex. App.—Dallas 2011, 

no pet.). The components of proximate cause are cause in fact and foreseeability. 

Id. The test for cause in fact is whether the defendant’s conduct was a substantial 

factor in bringing about the injury that otherwise would not have occurred. Id. 

Jacob pleaded that Elinor, in conspiracy with her parents, falsely represented 

to Jacob that she wanted to reconcile. He alleged this misrepresentation was to gain 

entrance to his apartment for the purpose of recording him without his consent, 

provoke him to anger and record his responses while Elinor feigned injury or pain 

on the recordings in order to fabricate charges of domestic abuse. He alleged 
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appellees planned to use the false domestic-abuse charges to extort a false affidavit 

from him to obtain a dismissal of Elinor’s criminal charges. Jacob alleged he relied 

on Elinor’s representations and let her move back in with him. He alleged that when 

he told her he could not truthfully provide the affidavit, “she immediately provided 

false and misleading statements to the police, resulting in prosecution of Plaintiff 

and his expulsion from medical school.”

It was undisputed that Elinor falsely represented to Jacob that her parents had 

refused to let her live with them after her arrest. It was also undisputed Elinor wanted 

Jacob to sign an affidavit that would show she was not guilty of possession of a 

controlled substance. The transcription of the recordings showed they frequently 

discussed the affidavit, what it should say, and whether Jacob would sign it. 

Sometimes, Jacob said he would sign it because he loved her and did not want her

to go to jail. At other times, Jacob told her he would not sign an affidavit because 

he hated her and wanted her to be punished. And sometimes, he said he would not 

sign it unless she performed certain activities for him, including her signing an 

affidavit stating he did not owe her any money. 

It was also undisputed that she recorded their conversations for four days, 

from May 15 to May 18, hoping that Jacob would say something to show she was 

not guilty of possession of a controlled substance. However, the record contains no 

evidence that she made the false representations to Jacob with the intent to either

have him assault her or to get him expelled from medical school. The record shows 
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Elinor and her parents spent thousands of dollars trying to help Jacob pass the Step 

exam, including paying for him to attend exam-preparation courses in Dallas and 

Chicago for a few weeks. Dr. Mahalic, the UTSW dean of medical students, testified 

she determined Jacob should be expelled after she reviewed the police report and 

concluded it was likely that the assault discussed in the police report occurred. No 

evidence shows Elinor’s false representations of needing his help or wanting to 

reconcile with him was a cause in fact of his expulsion from medical school. Instead, 

the record shows his expulsion was the result of his engaging in a physical altercation 

with Elinor for possession of a computer.

Moreover, Jacob’s alleged conspiracy theory is illogical. That theory is that 

Elinor lied her way into Jacob letting her live with him again so she could record 

provoking him to anger, record his responses, pretend to be injured, file false 

criminal charges against him to get him expelled from medical school, and use those 

charges to extort him into signing a false affidavit exculpating her from the criminal 

charges she faced for possession of a controlled substance.5 Jacob does not explain 

5

Jacob alleged in his petition:

The purpose of the deception was to provoke Plaintiff to anger, record his responses, and 

feign injury or pain on the recordings to fabricate charges of domestic abuse. These charges 

could then be used to extort a false affidavit from Plaintiff for purposes of Elinor Rowan’s 

criminal drug possession charges arising from her theft of Plaintiff’s Adderall.

He stated in his appellant’s brief:

Oliver complained Rowan and her parents schemed to extort a false affidavit from him to 

escape criminal prosecution for prescription medication she stole from him. The scheme 

involved surreptitious recordings, and what Oliver contends were false criminal charges 

calculated to get him expelled from medical school.
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what leverage Elinor would have had over him after he was expelled from medical 

school and criminal charges were pending against him. Nothing in the record shows 

anything Elinor could have done at that point would have gotten him readmitted to 

medical school. Nor does any evidence, direct or circumstantial, show Elinor 

believed her withdrawal of the accusation would gotten Jacob readmitted to medical 

school. 

Although Jacob did not allege or argue it this way, perhaps Jacob meant 

Elinor’s plan was to extort an affidavit from him before he was expelled by offering 

to tell the police she had falsely accused him. However, there is no evidence to 

support this theory either. For such a plan to have succeeded, Elinor would have to 

have contacted Jacob after the May 18 incident. There is no evidence that she did 

so. Nor is there any evidence that she had planned to do so but changed her mind.

We conclude no evidence shows Eleanor’s misrepresentations and Jacob’s

reliance on them were a cause in fact of Jacob’s expulsion from medical school and 

his being charged with assault, and the trial court did not err by granting a directed 

verdict on Jacob’s claims of fraud and conspiracy to defraud.

CONSPIRACY TO WIRETAP

In his second issue, Jacob contends the trial court erred by granting Roy and 

Julie Rowan’s motion for directed verdict on Jacob’s cause of action for conspiracy 

to wiretap. Section 16.02 of the Texas Penal Code provides, 

(b) A person commits an offense if the person:
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(1) intentionally intercepts, endeavors to intercept, or procures 

another person to intercept or endeavor to intercept a wire, oral, 

or electronic communication;

(2) intentionally discloses or endeavors to disclose to another 

person the contents of a wire, oral, or electronic communication 

if the person knows or has reason to know the information was 

obtained through the interception of a wire, oral, or electronic 

communication in violation of this subsection;

(3) intentionally uses or endeavors to use the contents of a wire, 

oral, or electronic communication if the person knows or is 

reckless about whether the information was obtained through the 

interception of a wire, oral, or electronic communication in 

violation of this subsection . . . .

(c) It is an affirmative defense to prosecution under Subsection (b) that:

. . . .

(4) a person not acting under color of law intercepts a wire, oral, 

or electronic communication, if:

(A) the person is a party to the communication; or

(B) one of the parties to the communication has given prior 

consent to the interception, unless the communication is 

intercepted for the purpose of committing an unlawful act

. . . .

TEX. PENAL CODE ANN. § 16.02(b), (c)(4). A person whose oral communication is 

intercepted in violation of section 16.02 “has a civil cause of action against any 

person who intercepts, discloses, or uses or solicits another person to intercept, 

disclose, or use the communication.” TEX. CODE CRIM. PROC. ANN. art. 18A.502. 

The charge instructed the jury that a defendant violates the “Texas Criminal 

Wiretap Act” if the defendant:
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1. Intentionally disclosed Jacob Oliver’s oral communication to 

another person when the defendant knew or had reason to know 

the information was obtained through an illegal interception;

2. Intentionally used the contents of Jacob Oliver’s oral 

communication when the defendant knew or was reckless about 

whether the information was obtained through an illegal 

interception; or

3. Intentionally used or solicited another to use a device to intercept 

Jacob Oliver’s oral communication.

The jury appears to have found Jacob failed to prove Elinor violated the Act.6 The 

record did not show Elinor knew, had reason to know, or was reckless about whether 

her interceptions of Oliver’s communications were illegal. Instead, the record 

showed she believed the interceptions were legal because she was a party to the 

intercepted communications. See PEN. § 16.02(c)(4)(A). Eleanor was clearly a party 

to all the audio recordings played for the jury, and Jacob does not identify any 

communication in the transcription of the recordings where Elinor was not a party

to the communication.7

Jacob argues that Elinor’s parents entered into a conspiracy with Elinor to 

violate the Act. The essential elements of a civil conspiracy are “(1) two or more 

persons; (2) an object to be accomplished; (3) a meeting of minds on the object or 

6 We say “appears” because the jury question did not include a question asking whether Elinor, or 

anyone else, violated the Act. Instead, the jury question was a series of instructions and definitions that 

ended with the direction, “Answer ‘Yes’ or ‘No.’” The jury answered “No.” Regardless of how the jury 

question is read, there is no jury finding that Elinor or her parents violated the Act.

7

Jacob testified there might have been times when the recorder was running and Elinor was not present, 

but there is no evidence that he made a communication during those times.
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course of action; (4) one or more unlawful, overt acts; and (5) damages as the 

proximate result. Agar Corp. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 141 

(Tex. 2019). Conspiracy is not an independent tort but is a theory of vicarious 

liability “that imparts joint-and-several liability to a co-conspirator who may not be 

liable for the underlying tort.” Id. at 140. Instead, it requires an underlying unlawful 

act. Id. at 141. The damages must come from the underlying wrongful act, not the 

conspiracy itself. Id. at 142.

In this case, there is no jury finding of an underlying wrongful act of a 

violation of the Wiretap Act. Nor does Jacob cite any evidence of a wrongful act. 

Elinor is obviously a party to all the communications in the excerpts of the audio 

recordings played for the jury. And Jacob does not point to any communications in 

the transcription of the audio recordings where Elinor was not a party to the 

communication. Jacob argues that he presented some evidence that she was not a 

party to all the communications because he testified that Elinor did not take her purse 

or charger/recorder with her every time she left the room. However, his testimony

was not evidence that at those times the device recorded communications to which 

she was not a party. Therefore, Jacob failed to present evidence of a violation of the 

Act for which Elinor’s parents could be held vicariously liable as conspirators. 

Jacob argues that Elinor’s parents are not entitled to the defense of being a 

party to the communication. Instead, their defense would be under section 

16.02(c)(4)(B), “one of the parties to the communication has given prior consent to 
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the interception, unless the communication is intercepted for the purpose of 

committing an unlawful act.” PEN. § 16.02(c)(4)(B). In this case, it is undisputed 

that Elinor, who was a party to the communications, gave consent to the interception. 

So the question is whether there is any evidence that the interception was “for the 

purpose of committing an unlawful act.” See id. Appellees testified that the purpose 

of recording the conversations was to see if Jacob would admit that the pills the 

police found in Elinor’s car belonged to him and that they were there because Jacob 

had left them in Elinor’s car. Jacob does not explain, and we do not perceive, how 

this was an unlawful purpose.

Jacob argues the purpose of the recordings was to use them “as leverage to

suborn perjury to get Elinor off drug charges,” and that the defense under section 

16.02(c)(4)(B) would not apply. Jacob’s subornation-of-perjury theory, discussed 

above, is illogical and not supported by the evidence.

Jacob argues it was unlikely that the purpose of the recordings was to get 

Jacob to admit to ownership of the pills. Jacob points out that some of the pills were 

in bottles prescribed to him, so it was established that they were his pills. Jacob 

asserts that Elinor admitted in the recorded conversations that she took the pills from 

the apartment in order to demand money from Jacob. What the recordings show is 

that Elinor told Jacob she found the pills in her bag and she put them in her car to 

return to Jacob after he paid her money he owed her. On the recordings, Jacob said 

she was lying and that she took them from the shelf in the apartment. While Elinor’s 
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taking the pills or failing to return the pills after she found them might have been an 

illegal act, Jacob does not explain what that has to do with the purpose of the 

recordings. The police on May 8 seized the pills Jacob asserts she took from the 

apartment, and she did not begin the recordings until May 15, a week after she lost 

possession of the pills. Thus, Elinor’s taking or finding the pills occurred before the 

making of the recordings, and no evidence shows she ever demanded money to 

return the pills because the police seized the pills before she could make such a 

demand. Also, no evidence shows Elinor’s parents had any knowledge that Elinor 

had taken Jacob’s pills for the purpose of requiring him to pay her money. 

We conclude Jacob has failed to show the trial court’s granting a directed 

verdict on his cause of action against Roy and Julie Rowan for conspiracy to wiretap 

was reversible error. We overrule Jacob’s second issue.

ELINOR’S ARREST RECORDS

In his third issue, Jacob contends the trial court erred by excluding the police 

records of Elinor’s arrest by the Rockwall Police Department on May 8, 2016. The 

trial court excluded the records based on an expunction order the court concluded 

applied to the arrest records. Jacob made an offer of proof of the records. See TEX.

R. EVID. 103(a)(2) (offer of proof necessary to preserve error from exclusion of 

evidence).

The order granting expunction provided that Elinor was entitled to expunction 

of three cases from the May 8 arrest, namely, two cases of misdemeanor possession 
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of a controlled substance not in a penalty group, cause numbers CR17-0357 and 

CR17-0358, and one case of violation of an occupational driver’s license, cause 

number CR16-1674. The Rockwall County district court ordered “that all records 

and files pertaining to the arrest be expunged.” The order also stated that “[r]elated 

arrests (same or similar charge, date, or arresting agency) not specifically listed 

herein are excluded from this expunction order. However, records of such 

unexpunged arrests which would not have been generated except for the expunged 

arrest shall be expunged.” 

Elinor also pleaded guilty to two counts of felony possession of a controlled 

substance, cause numbers CR-1672 and CR-1673. She received deferredadjudication community supervision for these offenses, which she successfully 

completed. The Rockwall court ordered that the law-enforcement agencies could 

not disclose the records related to those offenses. These felony offenses were not 

included in the expunction order.8 See Ex Parte R.P.G.P., No. 19-1051, 2021 WL 

1933952, at *1, *2, *6 (Tex. May 14, 2021) (“misdemeanor offenses are eligible for 

expunction on an individual basis”).

8 Expunction would not have been available for these offenses because Elinor received court-ordered 

community supervision. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2); see also Harris Cty. Dist. 

Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991) (“[T]he expunction law clearly was not 

intended to allow a person who is arrested, pleads guilty to an offense, and receives probation pursuant to 

a guilty plea to expunge arrest and court records concerning that offense.” (internal quotation marks 

omitted)).
–22–

Assuming that the trial court erred by excluding the arrest records because the 

felony possession offenses were not subject to expunction, we cannot reverse unless 

the trial court’s error in excluding the evidence probably caused the rendition of an 

improper judgment. TEX. R. APP. P. 44.1(a)(1). Erroneous rulings on the 

admissibility of evidence are ordinarily not reversible where the evidence is 

cumulative and not controlling on a material issue dispositive of the case. Gee v. 

Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); Crosby v. Minyard 

Food Stores, Inc., 122 S.W.3d 899, 903 (Tex. App.—Dallas 2003, no pet.). The 

error is harmless if other competent evidence of the fact in question appears 

elsewhere in the record. Crosby, 122 S.W.3d at 904. The appellant has the burden 

of demonstrating that the error constituted reversible error. Meachum v. Comm’n 

for Lawyer Discipline, 36 S.W.3d 612, 615 (Tex. App.—Dallas 2000, pet. denied); 

Jacob argues the arrest records were “critical to Elinor Rowan’s motivation 

for fraud, the illicit nature of the recordings she made, and are pertinent to the other 

claims of malicious prosecution and defamation.” Jacob then lists the relevant 

information that the arrest records would have shown:

1. Elinor was suspected of using drugs by the arresting officer.

2. She was driving while her license was invalid with a previous 

conviction for that offense.
–23–

3. Elinor was pulled over because she was driving erratically, and 

swerved into the oncoming traffic lane (and not because Jacob 

made an anonymous report about her).9

4. Elinor had an open beer container in the car (thus supporting 

Jacob’s accusations of her continued drinking).

5. Elinor told the officer that Jacob’s pill bottles, observed to be on 

the floorboard and in the glove compartment, contained a 

mixture of pills.

6. Elinor identified Jacob as her boyfriend and claimed the pills 

were in her car because he had used her car the day before.

7. The officer found one of the prescription Adderall pills in a 

zipper pocket in Elinor’s purse, indicating she had actually been 

consuming Jacob’s prescription medication illegally.

8. The officer found other prescription medication not belonging to

Jacob, including hydrocodone.

9. Elinor had retained an expired driver’s license of Jacob’s.

10. Elinor was being charged with a 2nd degree felony in connection 

with the possession of Jacob’s medication.

Most of this evidence was admitted elsewhere in the record. Video recordings 

of the Rockwall police’s stop and arrest of Elinor were in the record. Those videos 

show the officer stopped Elinor because of her erratic driving, and they confirm that 

Elinor strayed into the opposite lane. The videos also show the officer finding the 

beer can in Elinor’s car, searching the car and finding drugs, asking Elinor who Jacob 

was and Elinor’s answer that he was her fiancé, asking Elinor why Jacob’s pills were 

9 Elinor testified she believed she was stopped and arrested because Jacob had made an anonymous tip 

to the police about her. In the transcription of the audio recordings, she tells Jacob she found on his phone 

an internet search “[o]n how to make an anonymous tip.”
–24–

in her car and Elinor’s answer that he “drove my car earlier.” The recording also 

shows the officer found other pills but does not identify what they were. The 

transcription of the audio recordings Elinor made of her conversations with Jacob 

show that Elinor’s possession charges included possession of hydrocodone. On the 

video recording of the arrest, the officer said she found a pill like those in the 

prescription bottles in Elinor’s wallet. Elinor testified she sometimes consumed 

Jacob’s Adderall pills even though she did not have a prescription. Elinor also 

testified that a prescription bottle the officer found in her car contained a mixture of 

medications.

What the excluded evidence showed that was not cumulative of evidence 

before the jury was that the officer suspected Elinor of using drugs, that Elinor had 

a prior conviction for driving with an invalid license, that an expired driver’s license 

for Jacob was found in Elinor’s purse, and that one of the offenses with which she 

was charged was a second degree felony. Jacob asserts the excluded evidence 

“contain[ed] information critical to Elinor Rowan’s motivation for fraud, the illicit 

nature of the recordings she made, and are pertinent to the other claims of malicious 

prosecution and defamation.” Jacob does not explain, and we do not perceive, how 

any of the noncumulative evidence described above would have affected Elinor’s 

motivation for fraud, shown that her recordings were illicit, or been pertinent to the 

claims of malicious prosecution and defamation.
–25–

We conclude Jacob has not shown that the trial court’s exclusion of the police 

records of Elinor’s arrest was reversible error. We overrule Jacob’s third issue.

EXCLUSION OF EVIDENCE OF DAMAGES

In his fourth issue, Jacob argues the trial court erred by excluding his 

testimony of his lost earning capacity as a physician. Jacob wanted to present his 

testimony as well as information from the Bureau of Labor and Statistics of what his 

earnings would have been as a physician. Jacob is not entitled to reversal unless he 

shows that the trial court’s error probably caused the rendition of an improper 

judgment. TEX. R. APP. P. 44.1(a)(1). Jacob did not prevail on any of his causes of 

action where loss of earning capacity was a form of damages. We have overruled 

all of Jacob’s issues that could result in a new trial on those causes of action. The 

only cause of action on which Jacob prevailed was theft/conversion, where the trial 

court instructed the jury that the measure of damages was the fair market value of 

the items stolen/converted (which the jury found was $500), mental anguish 

damages (which the jury found was $0), and an award of statutory damages up to 

$1,000 (which the jury found was $0). See TEX. CIV. PRAC. & REM. CODE ANN. §

134.005(a)(1). Therefore, we conclude any error of the trial court by excluding 

Jacob’s testimony and evidence of his lost earning capacity could not have caused 

the rendition of an improper judgment and was not reversible error. See id. We 

overrule Jacob’s fourth issue.
–26–

ATTORNEY’S FEES AND COSTS

In his fifth issue, Jacob contends the trial court erred by failing to award him 

appropriate attorney’s fees and costs on his cause of action under the Texas Theft 

Liability Act. Under section 134.005 of the Civil Practice and Remedies Code, a 

person who prevails in a suit under the Texas Theft Liability Act “shall be awarded 

court costs and reasonable and necessary attorney’s fees.” CIV. PRAC. § 134.005(b).

In the petition’s allegations concerning the theft/conversion cause of action, 

Jacob alleged Elinor stole some of his pills as well as an iPad, clothing, kitchen 

items, and other items, which he alleged had a total value of $3,275. At trial, Jacob 

presented evidence of the items he believed Elinor took, but he did not present 

evidence of their fair market value. He testified his insurance co-pay expense for 

the pills Elinor took might have been $20; “it’s minimal.” Jacob presented no 

evidence of the value of any of the other items. Elinor admitted taking the iPad but 

returned it several years later; Jacob testified the iPad was broken and inoperable 

when she returned it, but he did not present evidence of its value.

10

 The jury charge 

did not ask the jury to identify which items Elinor took. Instead, the jury found the 

fair market value of the items Elinor took was $500.

10 In the transcription of the audio recordings, Jacob told Elinor that if she needed a computer she could 

keep the iPad; Elinor responded that she did not want it.
–27–

Attorney’s Fees

The award of attorney’s fees to a prevailing party under the Texas Theft 

Liability Act is mandatory. Schmader v. Butschek, No. 05-15-00278-CV, 2016 WL 

4119474, at *4 (Tex. App.—Dallas July 29, 2016, no pet.) (mem. op.). “However, 

a prevailing party entitled to attorney’s fees is required to ‘segregate fees between 

claims for which they are recoverable and claims for which they are not.’” Id.

(quoting Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006)).

The parties agreed to the trial court determining the amount of attorney’s fees. 

Appellate courts review a trial court’s award of attorney’s fees under an abuse of 

discretion standard. Mohamed v. Ctr. for Sec. Policy, 554 S.W.3d 767, 778 (Tex. 

App.—Dallas 2018, pet. denied). A court abuses its discretion if it rules without 

reference to guiding rules or principles. Id.

Jacob’s attorney, John Crouch, submitted an affidavit in support of his request 

for attorney’s fees. In the affidavit, Crouch stated his reasonable and necessary fees 

for the case through the jury trial were $128,035 for 320.05 hours at a rate of $400 

per hour. Crouch stated that 8.2 hours were spent researching and developing claims 

other than the theft claim. That amount represented $3,280, and he deducted that 

amount from the attorney’s fees, leaving a fee of $124,755. Crouch estimated that 

at least ninety percent of the time would have been necessary to pursue the theft 

claim, so he applied a discount rate of ten percent, reducing the attorney’s fees to 

$112,729.50. He stated the discount rate would have been 20 percent if the theft 
–28–

claim had not included the Adderall. Crouch stated that all his fees since trial 

involved the theft claim and constituted 13.3 hours at $400 per hour for $5,320, 

which increased the fee to $117,599.50. Crouch estimated his fee for the hearing on 

the motion for judgment pertaining to the theft claim would be $600, making the 

total amount of attorney’s fees for the theft claim $118,199.50.

Elinor’s attorney, Roger Foster, filed a response stating that a reasonable rate 

for an attorney of Crouch’s experience, based on the evidence Crouch submitted, 

was $300 per hour. Foster stated that Crouch’s billing records contained only one 

direct reference to the theft claim, references to the iPad, for 0.9 hours. Foster 

asserted the reasonable and necessary attorney’s fee for Crouch’s services on the 

theft claim should be $270.

The trial court found “that the reasonable and necessary attorney’s fees that 

Plaintiff is entitled to recover from Defendant Elinor Rowan for recovering $500.00 

on his claim for violation of the Texas Theft Liability Act is $3,000.”

In Arthur Andersen & Co. v. Perry Equipment Co., 945 S.W.2d 812 (Tex. 

1997), the Texas Supreme Court listed eight factors that courts should consider when 

determining whether an attorney’s fee is reasonable. Id. at 818. Those factors are:

(1) the time and labor required, the novelty and difficulty of the 

questions involved, and the skill required to perform the legal service 

properly;

(2) the likelihood . . . that the acceptance of the particular employment 

will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;
–29–

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers 

performing the services; and

(8) whether the fee is fixed or contingent on results obtained or 

uncertainty of collection before the legal services have been rendered.

Id. (quoting TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.04). The trial court 

may draw upon its common knowledge and experience in considering these factors. 

Moreno v. Reliable Insulation, Inc., 217 S.W.3d 769, 771 (Tex. App.—Dallas 2007, 

no pet.). Some courts have described the trial court as being an “expert on the 

reasonableness of attorney’s fees.” See Matter of Estate of Poe, 591 S.W.3d 607, 

651 (Tex. App.—El Paso 2019, pet. pending); McMahon v. Zimmerman, 433 S.W.3d 

680, 693 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Primrose Operating 

Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004)).

According to Crouch, he had to prove almost all the same facts for the theft 

cause of action as for the defamation, fraud, malicious prosecution, trespass, and 

illegal wiretap causes of action. The trial court apparently disagreed with Crouch 

on that point. The trial court could reasonably have concluded that the theft cause 

of action did not constitute ninety percent of the evidence. Instead, the court could 

have concluded it constituted only a small part of the evidence. Jacob’s case for the 

theft of the items came from his and his mother’s testimony. The court could 

reasonably have determined that the rest of the evidence, including the lengthy 
–30–

testimony about Jacob and Elinor’s troubled relationship, her recording their 

conversations, the fight over the computer, whether he assaulted her at different 

times, why he let the air out of her tires, the frequency with which Elinor was 

intoxicated, both their arrests and criminal charges, and what Elinor did with the 

Adderall, was not a reasonable and necessary part of the theft cause of action. 

The court may also have considered “the amount involved and the results 

obtained.” Arthur Andersen, 945 S.W.2d at 818. The theft cause of action, as 

pleaded, asserted damages of $3,275, plus the value of the Adderall. Jacob presented 

no evidence of the fair market value of any of the items allegedly taken. For the 

Adderall, he testified his out-of-pocket cost was about $20. The jury found the fair 

market value of the items taken was $500. The court could have concluded that 

attorney’s fees of $118,199.50 were not reasonable on a claim worth no more than 

$3,295 ($3,275 for the values alleged in the petition plus $20 for the Adderall), and 

for which the jury found $500 damages. Jacob and Crouch were requesting 

attorney’s fees of over 236 times the amount of damages found by the jury. The 

court, drawing upon its common knowledge and experience, could have concluded 

that a fee of six times the damages was more reasonable.

We conclude Jacob has not shown the trial court abused its discretion by 

awarding him attorney’s fees of $3,000. 
–31–

Costs

The award of costs to a party who prevails under the Texas Theft Liability Act 

is mandatory. See CIV. PRAC. § 134.005(b). In the motion for judgment, Jacob asked 

the trial court to award him costs. The trial court’s failure to award Jacob the costs 

for his cause of action under the Texas Theft Liability Act was an abuse of discretion. 

We sustain Jacob’s fifth issue to the extent it challenged the trial court’s 

failure to award costs relating to Jacob’s cause of action under the Texas Theft 

Liability Act, and we overrule the issue to the extent it challenged the award of 

attorney’s fees.

CONCLUSION

We modify the judgment to award Jacob costs of court related to his cause of 

action under the Texas Theft Liability Act, and we remand the cause to the trial court 

for determination of those costs. We affirm the trial court’s judgment in all other 

respects.

191433f.p05

/Lana Myers//

LANA MYERS

JUSTICE
–32–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

JACOB OLIVER, Appellant

No. 05-19-01433-CV V.

ELINOR ROWAN, ROY ROWAN, 

AND JULIE ROWAN, Appellees

On Appeal from the 162nd Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DC-17-06001.

Opinion delivered by Justice Myers. 

Justices Partida-Kipness and Garcia 

participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is MODIFIED as follows:

The judgment is MODIFIED to order that Jacob Oliver recover from 

Elinor Rowan costs of court related to his Texas Theft Liability Act 

cause of action.

It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED. 

We REMAND the cause to the trial court for determination of the costs of court 

related to the Texas Theft Liability Act cause of action.

It is ORDERED that appellees ELINOR ROWAN, ROY ROWAN, AND 

JULIE ROWAN recover their costs of this appeal from appellant JACOB 

OLIVER.

Judgment entered this 29th day of June, 2021.