Affirmed and Memorandum Opinion filed June 26, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00413-CV

BRETT RICHARDS, Appellant

V.

CHRIS TEBBE, Appellee

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Cause No. 2007-36132

M E M O R A N D U M O P I N I O N

In this appeal from the judgment after a nonjury trial, defendant Brett 

Richards challenges the sufficiency of the evidence supporting the trial court’s 

findings concerning (a) the elements of probable cause and malice necessary to 

establish liability for malicious prosecution, (b) the damages awarded for the 

plaintiff’s physical pain and mental anguish from the defendant’s civil assault, and 

(c) the malice necessary to sustain exemplary damages. He also argues that the 
2

trial court abused its discretion in permitting the plaintiff’s counsel to impeach him 

using his testimony from his criminal trial. Because the trial court’s findings are 

supported by the evidence and the defendant was not unfairly surprised or 

prejudiced by the references to his prior inconsistent sworn testimony, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

During their relationship, Brett Richards and Dana Grace had a child and 

bought a house together.1 After their relationship ended, Dana began dating 

appellee Chris Tebbe in July 2006. On two or three occasions, Brett was at the 

house and answered the phone when Chris called. Chris asked to speak to Dana, 

and Brett handed her the phone. The evidence is undisputed that this is the full 

extent of the telephone conversations between Chris and Brett. Nevertheless, on 

August 8, 2006, Brett reported to the Houston Police Department that Chris had 

been making harassing telephone calls to him. A Houston police officer called 

Chris, but he was not prosecuted for this complaint. 

A. The Basis of the Malicious-Prosecution Claim

Brett next reported to the police that on October 14, 2006, Chris threatened 

to kill him. Chris was prosecuted for assault by threat but was acquitted. There 

are two versions of the events that transpired on the day of the alleged threat. Both 

concern events that took place near the house that Dana and Brett owned, but by 

the date of the alleged threat, Dana had moved out, and Brett and his wife Mandy 

had moved in. 

According to Brett and Mandy, the two of them were leaving the house in 

Brett’s truck to run some errands, and Brett noticed a car parked outside of a 

neighbor’s house “at the front of the street.” As Brett drew closer, he noticed that 

 

1 Because the parties share the same surname with others who testified at trial, we 

identify each witness by his or her first name.
3

Chris was sitting in the car. Brett pulled over next to the car and asked Chris, “Can 

I help you?” Chris responded, “I’ll fucking kill you.” Brett testified that he then 

got on the freeway where Chris followed him for several miles. Brett stated that he 

called the police, and the police told him to file a complaint.

According to Chris and Dana, Dana needed to retrieve her belongings from 

the house, and her attorney advised her to go when Brett was not there. Chris and 

Dana went to the area in separate vehicles, and Dana parked at a nearby shopping 

center while Chris drove to the house to see if Brett was home. Chris parked on 

the street in front of a neighbor’s property and took photos of the house. The 

photos show Brett and Mandy’s unoccupied vehicles in front of the house. Chris 

stated that he left without ever seeing or speaking to anyone. Within about two 

minutes after he left Dana at the shopping center, he rejoined her and told her that 

Brett’s truck was at the house, so they would have to get her things another time. 

Chris stated that while he and Dana were talking, he saw Brett’s truck being driven 

out of the subdivision, so he and Dana drove away. According to Chris, Brett 

pursued him, and the vehicles reached speeds exceeding 90 mph while Brett tried

to swerve into Chris and cause a collision. 

B. The Period Between the Two Claims

In October 2007, Dana and Chris married, but according to their testimony,

Brett’s animosity toward Chris continued unabated. Dana testified that Brett 

complained to Child Protective Services that Chris had attempted to physically 

harm Dana’s son, but after investigating, the agency found the allegations 

unfounded. She stated that Brett also attempted to file charges of child 

endangerment, alleging that Chris hit Dana’s son on the head, but the charges were

not accepted. Dana testified that Brett also told her, “Tell your husband if he ever 

stares me down like that again I’ll kick his—.” Because of Brett’s 
4

“repetitive . . . threats and insults,” Dana filmed the exchanges of possession when 

her son visited Brett. 

C. The Basis of the Civil-Assault Claim

In September 2008, Brett came to Dana and Chris’s residence to pick up his 

son. Brett’s brother John filmed the exchange from across the street, and Chris 

filmed it from the house, but neither video was offered as evidence at trial. When 

the child began to run to the street, Chris picked the boy up with his free hand. 

While Chris had the child in one hand and a camera in the other, Brett punched 

Chris in the face, then put him in a headlock and continued punching him in the 

face while Chris tried to shake off the camera strapped to his hand. Chris testified 

that Brett forced his hand in Chris’s mouth while putting Chris in a headlock, and 

Chris bit Brett’s finger. Chris broke free and backed up, but Brett charged after 

him, retreating only when Chris drew a gun.2 Brett’s brother John similarly 

testified that when the child began running, Chris scooped him up with the hand 

that was not holding the camera. John said that Brett’s body blocked some of what 

followed from view, but he admitted there was “maybe a headlock-type situation.” 

Brett testified that he and Chris reached the boy at about the same time, and

Brett put up his left hand in a “stop” position as Chris was bending down to pick 

up the child. According to Brett, “my hand and his face connected.” Brett 

explained that in self-defense, “I struck [Chris three times] at the time my hand 

was in his mouth.” After Chris broke free and backed up, Brett admittedly 

continued to advance toward him until Chris drew his gun.

D. The Trial

Chris sued Brett for malicious prosecution and assault, and prevailed on both 

 

2 Chris has a concealed-handgun license.
5

claims. After the nonjury trial, the trial court issued findings of fact and 

conclusions of law in which it found that the harm to Chris from each claim was 

the result of malice. The trial rendered judgment ordering Brett to pay Chris 

compensatory damages of $16,3033and exemplary damages of $30,000 for 

malicious prosecution, and compensatory damages of $15,000 and exemplary 

damages of $30,000 for assault. 

II. MALICIOUS PROSECUTION

To prevail in a malicious-prosecution claim, a plaintiff must prove that the 

defendant acted maliciously and without probable cause in initiating or procuring 

the innocent plaintiff’s criminal prosecution; that the prosecution terminated in the 

plaintiff’s favor; and that the plaintiff was damaged. Richey v. Brookshire Grocery 

Co., 952 S.W.2d 515, 517 (Tex. 1997). Brett contends that the trial court erred in 

holding him liable for malicious prosecution because there is legally and factually 

insufficient evidence to support the trial court’s findings that he acted without 

probable cause and with malice. 

In evaluating the evidence supporting the challenged findings, we apply the 

familiar standards of review for legal and factual sufficiency. To analyze the legal 

sufficiency of the evidence supporting a finding, we review the record in the light 

most favorable to it, crediting favorable evidence if a reasonable factfinder could 

and disregarding contrary evidence unless a reasonable factfinder could not. See 

City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In reviewing a factualsufficiency challenge, we consider and weigh all the evidence in a neutral light and 

will set aside the finding only if the evidence is so weak or the finding is so against 

the great weight and preponderance of the evidence that it is clearly wrong and 

unjust. Green v. Alford, 274 S.W.3d 5, 23 (Tex. App.—Houston [14th Dist.] 2008, 

 

3

This amount is not challenged on appeal.
6

pet. denied) (op. on reh’g en banc) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 

237, 242 (Tex. 2001) (per curiam)).

A. The record supports the trial court’s finding that Brett did not 

reasonably believe that Chris committed assault by threat.

A complainant has probable cause to initiate or procure a criminal 

prosecution if he reasonably believed that the elements of a crime had been 

committed based on the information available to him before the criminal 

proceeding began. Richey, 952 S.W.2d at 519. Brett procured Chris’s prosecution 

for assault by threat, a crime that is committed by “intentionally or knowingly 

threaten[ing] another with imminent bodily injury.” TEX. PENAL CODE ANN. 

§ 22.01(a)(2) (West Supp. 2013). We therefore review the record for evidence 

relevant to the question of whether Brett reasonably believed that Chris 

intentionally or knowingly communicated such a threat. See Olivas v. State, 203 

S.W.3d 341, 342 (Tex. Crim. App. 2006) (explaining that to commit the offense, a 

person must “communicate a threat of imminent bodily injury” (citing McGowan 

v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984))). Where, as here, the facts 

are disputed, the existence of probable cause is a mixed question of law and fact. 

Richey, 952 S.W.2d at 518. 

We begin our review by presuming that the complainant acted reasonably 

and in good faith, and that the complainant had probable cause to initiate or 

procure the criminal prosecution. Id. at 517. The presumption disappears if the 

accused produces evidence that the motives, grounds, beliefs, and other evidence 

upon which the complainant acted did not constitute probable cause. Id. at 518. 

This can include evidence of the parties’ prior bad relations. See Kroger Tex. Ltd. 

P’ship v. Suberu, 216 S.W.3d 788, 795 (Tex. 2006). Once the presumption is 

dispelled, the burden shifts to the complainant to offer proof of probable cause. Id. 
7

Chris overcame the presumption of probable cause by producing evidence 

that Brett was motivated by personal animus. Brett testified that in August 2006, 

Dana moved out of the house she had shared with him and began living with Chris, 

and Brett hired a private investigator to research Chris. Although Dana testified to 

a different order of events, it is the responsibility of the factfinder to weigh 

credibility and resolve conflicts in the evidence, and we will defer to those 

determinations so long as they are reasonable. See City of Keller, 168 S.W.3d at 

819–20 (applying this principle to legal-sufficiency review); Golden Eagle 

Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (applying the same 

principle to factual-sufficiency review). Brett testified that he did not ask the 

investigator to engage in surveillance, but both Chris and Dana testified that they

saw the investigator on the street outside the house. After hiring the investigator, 

Brett made his first complaint to police in August 2006, alleging that Chris had 

been making harassing telephone calls to him. The evidence is uncontroverted that 

this complaint was completely unfounded; Chris had done nothing more than dial 

Dana’s number and ask to speak to her while she was still living at the house that 

she and Brett owned. The evidence of Brett’s conduct toward Chris in the months 

before Brett reported that Chris threatened to kill him shows that Brett harbored 

personal animosity toward Chris.

Because Chris rebutted the initial presumption, the burden shifted to Brett to 

prove that he had probable cause to file the complaint of assault by threat. Brett 

asserts that the undisputed facts establish that he acted with probable cause. We 

disagree. What is undisputed is that on the day of the alleged threat, Chris spent 

approximately two minutes parked on the street where his girlfriend owned 

property. He was not parked in front of that house, but in front of a neighbor’s 

house. He approached no one; he initiated no conversations; he did not even leave 
8

his car. Although he took pictures of the house, there is no evidence that Brett or 

Mandy knew of this before the criminal prosecution, and in any event, doing so did 

not communicate a threat of imminent bodily harm. It also is undisputed that Chris 

has a concealed-handgun license, but it is not alleged that he displayed a gun, 

mentioned one, or even carried one on this occasion. The only other fact that is 

beyond dispute is that Brett reported to police that Chris orally threatened to kill 

him. Brett testified that he feared for his safety and that of his wife, but that is 

inconsistent with Chris’s testimony and even with Brett’s testimony that he pulled 

over beside Chris’s parked car, thereby bringing both Brett and his wife within a 

few feet of the person Brett claimed to fear. Brett also testified that he filed a 

complaint on the instructions of the police, but a reasonable factfinder could have 

concluded that Brett simply decided on his own to file another false report. 

On this record, a reasonable factfinder could have concluded that Brett failed 

to prove he reasonably believed that Chris intentionally or knowingly 

communicated a threat of imminent bodily injury. We therefore overrule this 

issue. 

B. The record also supports the finding that Brett acted with malice.

Brett asserts that there is legally and factually insufficient evidence of malice 

because he testified that he believed he acted in good faith when he filed a police 

report stating that Chris threatened to kill him. But knowingly providing false 

information to the police is relevant to the element of malice, see Richey, 952 

S.W.2d at 519, and such an implied finding is supported by the record. 

Brett and Mandy testified that Chris threatened to kill Brett, but Chris flatly 

contradicted that testimony, and both versions of events could not be correct. The 

trial court resolved the conflict by making a reasonable credibility determination. 

The trial court expressly found that it “did not find [Brett’s] claim that he was 
9

threatened to be credible” and stated on the record that it “believed [the criminal 

complaint] was completely made up out of whole cloth.” Because the evidence 

supports the implied finding that Brett knowingly made the false report, there is 

legally and factually sufficient evidence that Brett acted with malice. We overrule 

this issue.

III. CIVIL ASSAULT

Brett next contends that the trial court erred in awarding Chris damages for 

physical pain and mental anguish on the assault claim. Citing Reardon v. 

LightPath Technologies, Inc., Brett asserts that the trial court could award no 

damages for physical pain because Chris did not seek medical care or take pain 

medication, and “[t]here can be no recovery for damages that are speculative or 

conjectural.” Reardon, 183 S.W.3d 429, 442 (Tex. App.—Houston [14th Dist.] 

2005, pet. denied) (citing A.B.F. Freight Sys., Inc. v. Austrian Import Serv., Inc., 

798 S.W.2d 606, 615 (Tex. App.—Dallas 1990, writ denied) (op. on reh’g)). As 

for mental anguish, Brett argues that a plaintiff must present either (a) direct 

evidence of the nature, duration, or severity of the anguish; or (b) other evidence of

“a high degree of mental pain and distress” that is “more than mere worry, anxiety, 

vexation, embarrassment, or anger.” See Parkway Co. v. Woodruff, 901 S.W.2d 

434, 444 (Tex. 1995).

We are hampered in our ability to meet one of these arguments head-on, 

because Brett briefed this issue as though there were independent findings of 

physical-pain damages and mental-anguish damages. There are not. The trial 

court instead found that as a result of Brett’s assault, Chris “was damaged in the 

amount of $15,000.00 for the physical pain and mental anguish.” (emphasis 

added). In asserting that the evidence of mental-anguish damages does not meet 

the standard set forth in Parkway, Brett has made an argument that does not apply 
10

to the trial court’s finding, because Parkway applies only to evidence of mental 

anguish. The trial court’s finding is stated in the conjunctive, and thus, it can be 

supported by evidence of physical pain, mental anguish, or any combination of the 

two. See Shamrock Commc’ns, Inc. v. Willie, No. 03-99-00852-CV, 2000 WL 

1825501, at *11–12 (Tex. App.—Austin Dec. 14, 2000, pet. denied) (not 

designated for publication) (rejecting argument that damages in a defamation case 

did not meet the Parkway standard for mental-anguish damages because the jury 

charge listed the separate elements of damages in the conjunctive, and the award 

for “mental pain, mental anguish, shame, embarrassment and humiliation” was 

supported by evidence of humiliation). Brett did not ask the trial court to make 

additional or amended findings of fact that would allow this court to review the 

sufficiency of the evidence of mental anguish independently from the evidence of 

physical pain.

On the other hand, Brett’s assertion that “there can be no recovery for 

damages that are speculative or conjectural” is broad enough to apply to the trial 

court’s physical-pain-and-mental-anguish finding, and we address it in that light. 

Although Brett has accurately quoted our statement in Reardon about speculative 

damages, that statement does not apply here. In Reardon and the case on which it 

relies, the tortfeasor allegedly injured the plaintiffs by causing them a financial 

loss, and the amount required to fairly and reasonably compensate a plaintiff for a 

financial loss normally is susceptible to mathematical calculation. But the same 

cannot be said of all injuries. Physical pain and mental anguish are inherently 

subjective. Parkway, 901 S.W.2d at 444 (mental anguish); Enright v. Goodman 

Distrib., Inc., 330 S.W.3d 392, 397 (Tex. App.—Houston [14th Dist.] 2010, no 

pet.) (physical pain). As a result, the damages associated with a physical injury are 

“not subject to precise mathematical calculation.” Weidner v. Sanchez, 14 S.W.3d 
11

353, 372 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Recognizing this

distinction, we repeatedly have stated that these injuries are compensable even 

though the damages are “speculative.” See, e.g., Belford v. Walsh, No. 14-09-

00825-CV, 2011 WL 3447482, at *7 (Tex. App.—Houston [14th Dist.] Aug. 9, 

2011, no pet.) (mem. op.); Cox v. Centerpoint Energy, Inc., No. 14-05-01130-CV, 

2007 WL 1437519, at *6–7 (Tex. App.—Houston [14th Dist.] May 17, 2007, no 

pet.) (mem. op.); Weidner, 14 S.W.3d at 372. 

The trial court’s finding is supported by the record. Chris presented

uncontroverted testimony that Brett punched him in the face three times, causing a 

black eye, a knot on his head, and a laceration. The bruise and the laceration took 

about two weeks to heal. Chris testified that although the injuries were not 

“significant enough to go to a hospital,” the pain from the injuries “was 

significant.” In addition, Dana testified that Chris was “upset” about the 

confrontation. This evidence is legally and factually sufficient to support the 

award of $15,000 even though no evidence of medical treatment was presented. 

See Country Roads, Inc. v. Witt, 737 S.W.2d 362, 365 (Tex. App.—Houston [14th 

Dist.] 1987, no writ) (affirming award of $15,000 for physical pain and mental 

anguish for two black eyes, a swollen lip, and some chest abrasions, where the only 

medical treatment required was to clean the injuries and the plaintiff was “pretty 

sore for about a month”). We therefore overrule this issue.

IV. EXEMPLARY DAMAGES

To prevail in his claim for exemplary damages, Chris was required to prove 

by clear and convincing evidence that the harm he suffered as a result of Brett’s 

conduct was the result of fraud, malice, or gross negligence. TEX. CIV. PRAC. &

REM. CODE ANN. § 41.003 (West 2008 & Supp. 2013). In connection with each of 

Chris’s causes of action, the trial court found from clear and convincing evidence 
12

that the harm to Chris was the result of malice. For the purpose of the exemplarydamages statute, malice is defined as “a specific intent by the defendant to cause 

substantial injury or harm to the claimant.” Id. § 41.001.

Brett contends that the evidence is legally and factually insufficient to 

support the malice findings. Because a higher standard of proof applies to these

findings, we also apply a higher standard of review. In reviewing the legal 

sufficiency of the evidence to support each malice finding, we consider all the 

evidence in the light most favorable to the finding, disregarding all evidence that a 

reasonable factfinder could have disbelieved, and determine whether a reasonable 

factfinder could have formed a firm belief that the finding was true. See Sw. Bell 

Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004) (citing In re J.F.C., 96 S.W.3d 

256, 266 (Tex. 2002)). The evidence is factually insufficient only if, “in light of 

the entire record, the disputed evidence that a reasonable factfinder could not have 

credited in favor of the finding is so significant that a factfinder could not 

reasonably have formed a firm belief or conviction” that the finding was true. In 

re J.F.C., 96 S.W.3d at 266. 

We conclude that a reasonable factfinder could have credited all of the 

testimony that supports the malice findings, and that the evidence we detailed at 

the start of this opinion is sufficient to support the findings that Brett specifically 

intended to cause Chris substantial injury or harm. Such an intent is shown not 

only by the circumstances on the day that Brett committed the acts on which the 

judgment is based, but also by his frequent threats and repeated reports of 

misconduct. In connection with the malicious-prosecution claim, we note that the 

false imputation of a crime does more than expose the accused to the penalties 

provided under the criminal law. The damage to a person’s reputation from such a 

statement is so likely to occur that under the civil law, the false imputation of a 
13

crime is defamatory per se. See Memon v. Shaikh, 401 S.W.3d 407, 421 (Tex. 

App.—Houston [14th Dist.] 2013, no pet.). A reasonable factfinder could have 

concluded that Brett made repeated false complaints of criminal conduct not only 

to increase the risk that Chris would face criminal penalties, but also to increase the 

damage to his reputation. Regarding the assault claim, the intent to cause 

substantial injury can be seen in the evidence that Brett struck Chris only when he 

could see that Chris was not in a position to fight back—and even then, Brett put 

Chris “in a headlock situation” in an apparent effort to prevent Chris from 

retreating or evading Brett’s blows. 

We overrule this issue.

V. IMPEACHMENT EVIDENCE

Brett previously testified in his own defense in a criminal trial for assaulting 

Chris, but when testifying in this civil trial for the same conduct, Brett made 

several inconsistent statements and was impeached with his prior testimony. Brett 

objected on the ground that opposing counsel did not produce the transcript of the 

testimony in response to a request for disclosure of witness statements. The trial 

court overruled the objection in part, permitting the prior testimony to be used only 

for the purpose of impeachment, and not as a substantive exhibit. Brett challenges 

that evidentiary ruling, which we review for abuse of discretion. See U-Haul Int’l, 

Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). He argues that a party who 

fails to timely supplement a discovery response may not introduce into evidence 

the material or information that was not timely disclosed unless the trial court finds 

either that there was good cause for the failure or that the failure to timely 

supplement the response “will not unfairly surprise or unfairly prejudice the other 

parties.” TEX. R. CIV. P. 193.6(a). 

We conclude that the trial court did not abuse its discretion in concluding 
14

that Brett was not “unfairly” surprised or “unfairly” prejudiced by facing 

impeachment with his own prior inconsistent sworn testimony. Brett is the sole 

defendant, and he was identified as a party with knowledge of relevant facts. See 

Hoefker v. Elgohary, 248 S.W.3d 326, 331 (Tex. App.—Houston [1st Dist.] 2007, 

no pet.) (explaining that the appellant could not have been surprised by opposing

counsel’s testimony on remand concerning attorney’s fees, because although the 

witness was not disclosed, the same witness testified on the same subject in the 

prior proceedings). Brett was aware that the testimony existed, and the transcript 

was as readily available to him as it was to Chris. See Oscar Luis Lopez v. La 

Madeleine of Tex., Inc., 200 S.W.3d 854, 862 (Tex. App.—Dallas 2006, no pet.)

(explaining that Rule 193.6 “applies when the existence of evidence was not 

disclosed in a timely manner”) (emphasis added); see also Williams v. County of 

Dallas, 194 S.W.3d 29, 33 (Tex. App.—Dallas 2006, pet. denied) (holding that the 

appellant was not unfairly surprised by public tax records that were not produced 

in discovery or attached to pleadings in taxing unit’s suit to collect delinquent ad 

valorem taxes, and noting that the appellant “had the same access to public tax 

records as the taxing units”); Graff v. Whittle, 947 S.W.2d 629, 639 (Tex. App.—

Texarkana 1997, writ denied) (explaining that public records are not considered to 

be in the “possession, custody, and control” of any party).4

We overrule this issue.

 

4 On appeal, Brett also argues for the first time that the trial court erred in allowing 

opposing counsel to use John’s prior testimony for impeachment purposes. Because Brett failed 

to raise this objection in the trial court, it has not been preserved for our review. See TEX. R.

APP. P. 33.1. 
15

VI. CONCLUSION

Having overruled each of the issues presented, we affirm the trial court’s 

judgment.

/s/ Tracy Christopher

Justice

Panel consists of Justices Boyce, Christopher, and Brown.