Mark RODRIGUEZ, Victor Trevino III, and Thomas Trevino, Appellants v. Richard "Rick" GONZALES, Appellee

NO. 14-17-00667-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed December 18, 2018 Rehearing Denied February 4, 2019

Tracy Christopher, Justice

While Republican Richard "Rick" Gonzales and Democrat Silvia Trevino were opposing candidates in the general election for the position of Harris County Constable, Precinct 6, Trevino's cousin Mark Rodriguez and her sons Victor Trevino III and Thomas Trevino (collectively, the Trevino Parties)1 published negative statements about Gonzales on social media. Gonzales sued them for defamation, and pursuant to the Texas Citizens Participation Act ("the TCPA"), the Trevino Parties moved to dismiss Gonzales's claims. *See* TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001 -.011 (West 2015). In this interlocutory appeal, the Trevino Parties challenge the denial of their motion.

*849We conclude the Trevino Parties established that the TCPA applies to Gonzales's claims, thereby shifting the burden to Gonzales to establish a prima facie case for each essential element of his claims. We further hold that Gonzales is a limited-purpose public figure, and thus, he was required to establish a prima facie case of actual malice for the challenged publications. We conclude that he failed to do so, and in some instances, additionally failed to show that the statement at issue was false. We therefore reverse the judgment and remand the cause for determination by the trial court of the amount of sanctions, court costs, reasonable attorney's fees, and other expenses, if any, to be awarded to each of the Trevino Parties, and for rendition of judgment awarding such amounts and dismissing the case.

**I. BURDEN-SHIFTING UNDER THE TCPA**

The TCPA was passed to balance the right to bring a meritorious lawsuit for a demonstrable injury against the need to safeguard the rights to speak freely, to associate freely, and to petition. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 27.002. If a plaintiff brings a legal action that relates to, or is in response to, the defendant's exercise of the right of free speech, association, or petition, the TCPA allows the defendant to quickly move for dismissal of the action. *See id.* § 27.003. Filing the motion suspends discovery unless the trial court for good cause permits "specified and limited discovery relevant to the motion." *Id.* §§ 27.003(c), 27.006(b).

At the hearing on the motion, the movant has the initial burden to show by a preponderance of the evidence that the action is based on, relates to, or is in response to the movant's exercise of the right of free speech, the right to petition, or the right of association. *Id.* § 27.005(b).

If this requirement is satisfied, the trial court must dismiss the claim at issue unless the respondent establishes "by clear and specific evidence a prima facie case for each essential element of the claim in question." *Id.* § 27.005(c). The expression *prima facie case* "refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted." *In re Lipsky* , 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding). Stated differently, it is the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." *Id.* (quoting *In re E.I. DuPont de Nemours & Co.* , 136 S.W.3d 218, 223 (Tex. 2004) (per curiam) ). The movant for dismissal under the TCPA has no burden to disprove the existence of a prima facie case. Indeed, the movant *cannot* do so, because "[p]rima facie proof is not subject to rebuttal, cross-examination, impeachment[,] or even disproof." *KBMT Operating Co., LLC v. Toledo* , 492 S.W.3d 710, 721 (Tex. 2016) (quoting *Ruiz v. Conoco, Inc.* , 868 S.W.2d 752, 757 (Tex. 1993) (second alteration in original) ).

If the person who brought the action establishes a prima facie case for each element of the claim, then the burden shifts back to the movant to establish, by a preponderance of the evidence, each essential element of a valid defense. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d).

Finally, if the trial court grants the motion to dismiss, it must award costs, reasonable attorneys' fees, and other expenses of defending against the action "as justice and equity may require." *Id.* § 27.009(a). The trial court also must sanction the plaintiff in an amount "sufficient to deter the party who brought the legal action from bringing similar actions." *Id.*

Because the trial court denied the Trevino Parties' motion to dismiss in its entirety, the trial court presumably determined, *850as to each claim, either that (a) the Trevino Parties failed to meet their burden to prove that the TCPA applies, or (b) Gonzales satisfied his burden to establish a prima facie case for each element of the claim and the Trevino Parties failed to prove a valid defense.

The Trevino Parties' first two issues correspond to these burdens. They argue in their first issue that they proved that the TCPA applies, and they contend in their second issue that Gonzales failed to establish a prima facie case for each element of each of his defamation claims. We review the trial court's ruling on the motion to dismiss de novo. *Hearst Newspapers, LLC v. Status Lounge, Inc.* , 541 S.W.3d 881, 887 (Tex. App.-Houston [14th Dist.] 2017, no pet.). If the Trevino Parties prevail in their first two issues, then we will reach their third issue, in which they contend that the trial court erred in failing to award them attorney's fees and sanctions.

**II. THE TREVINO PARTIES' BURDEN**

To meet their initial burden to demonstrate that the TCPA applies, the Trevino Parties stated in their motion to dismiss that Gonzales's claims against them were based on, related to, or in response to their exercise of the right of free speech on a matter of public concern. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a). A "matter of public concern" is defined in the TCPA to include "an issue related to ... a public official or public figure." *Id.* § 27.001(7)(D). The Trevino Parties argued that Gonzales's candidacy in the contested election for constable made him a public figure. We agree that, for the purpose of this case, Gonzales is a public figure.

In the context of defamation claims, there are two types of "public figures." "All-purpose" or "general purpose" public figures are those "who have achieved such pervasive fame or notoriety that they become public figures for all purposes and in all contexts." *WFAA-TV, Inc. v. McLemore* , 978 S.W.2d 568, 571 (Tex. 1998) (citing *Gertz v. Robert Welch, Inc.* , 418 U.S. 323, 351, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) ). In contrast, a "limited-purpose" public figure is a public figure only "for a limited range of issues surrounding a particular public controversy." *Id.*

To determine whether a defamation claimant is a limited-purpose public figure, Texas courts apply the following three-part test:

> (1) the controversy at issue must be public both in the sense that people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution;

> (2) the plaintiff must have more than a trivial or tangential role in the controversy; and

> (3) the alleged defamation must be germane to the plaintiff's participation in the controversy.

*Neely v. Wilson* , 418 S.W.3d 52, 70 (Tex. 2013) (citing *WFAA-TV* , 978 S.W.2d at 571 ).

Here, all of these requirements are satisfied. The statements at issue all were made within a few weeks of the general election, and the contested election for the position of constable of Harris County Precinct 6 was a public controversy that people were actually discussing at the time of these events. As a candidate, Gonzales had more than a trivial or tangential role in the controversy, and the resolution of the contested race necessarily would have an impact beyond the candidates themselves. Finally, the allegedly defamatory statements concerned Gonzales's fitness for office, and thus, the statements were germane to *851Gonzales's "participation in the controversy."

Because Gonzales is a public figure for the limited purpose of his candidacy for constable, the Trevino Parties' statements impugning his fitness for that office are statements concerning an issue related to a public figure. As such, the statements were, by definition, statements about a "matter of public concern." *See* TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7)(D). We therefore conclude that the Trevino Parties met their initial burden to establish by a preponderance of the evidence that the TCPA applies to Gonzales's claims, and we sustain the Trevino Parties' first issue.

**III. GONZALES'S BURDEN**

Because the Trevino Parties established that the TCPA applies to Gonzales's defamation claims, the burden shifted to Gonzales to "establish[ ] by clear and specific evidence a prima facie case for each essential element of the claim in question." *Id.* § 27.005(c). The elements that a defamation plaintiff must prove are that (a) the defendant published a false statement of fact; (b) the statement defamed the plaintiff; (c) the defendant acted with actual malice, if the plaintiff is a public figure or a public official, or negligently, if the plaintiff is a private individual; and (d) the statement proximately caused damages. *See**Anderson v. Durant* , 550 S.W.3d 605, 617-18 (Tex. 2018) ; *WFAA-TV* , 978 S.W.2d at 571 ; *Landry's, Inc. v. Animal Legal Def. Fund* , No. 14-17-00207-CV, 566 S.W.3d 41, 52-53, 2018 WL 5075116, at *4 (Tex. App.-Houston [14th Dist.] Oct. 18, 2018, no pet. h.).

Regarding the first element, a publication is false if it "is not substantially true." *Neely* , 418 S.W.3d at 63. A publication is not substantially true if, taken as a whole, it is more damaging to the plaintiff's reputation than a truthful publication would have been. *See id.* In other words, we determine falsity by first ascertaining the "gist" of the publication. *See**id.* at 63-64. A publication's meaning is determined "by construing the publication or broadcast 'as a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive it.' " *KBMT Operating Co.* , 492 S.W.3d at 721 (quoting *Turner v. KTRK Television, Inc.* , 38 S.W.3d 103, 114 (Tex. 2000) ).

The second element is concerned with whether the publication defamed the plaintiff. The record establishes, and the parties do not dispute, that the publications refer to Gonzales, so this element is satisfied if the publications were defamatory. A publication may be defamatory per se or defamatory *per quod.* A statement that is defamatory per se is one that "is so obviously hurtful to a plaintiff's reputation that the jury may presume general damages." *Dall. Morning News, Inc. v. Tatum* , 554 S.W.3d 614, 626 (Tex. 2018) (quoting *Hancock v. Variyam* , 400 S.W.3d 59, 63-64 (Tex. 2013) ). For the purpose of this discussion, we assume, without deciding, that Gonzales produced prima facie evidence that the Trevino Parties' publications were defamatory per se such that general damages are presumed. We therefore do not further analyze the second and fourth elements of Gonzales's defamation claims.

The remaining element concerns fault. As a limited-purpose public figure, Gonzales was required to prove that the Trevino Parties published their statements with actual malice. "Actual malice" in the context of a defamation claim refers not to bad motive or ill will but to the knowledge of, or reckless disregard for, the falsity of the statement. *Greer v. Abraham* , 489 S.W.3d 440, 443 (Tex. 2016). "[A]ctual malice cannot be *852based on a misinterpretation of ambiguous facts that is not unreasonably erroneous." *See**Bentley v. Bunton* , 94 S.W.3d 561, 594 (Tex. 2002).

"Reckless disregard" requires more than negligence. *See**id.* at 591. It "is a subjective standard focusing on the defendant's conduct and state of mind." *Landry's* , 566 S.W.3d at 52-53, 2018 WL 5075116, at *4 (citing *Bentley* , 94 S.W.3d at 591 ). "Proof of reckless disregard requires evidence that the defendant had serious doubts about the truth of the publication, or stated differently, that the defendant had a high degree of awareness of the probable falsity of the statement." *Id.*

**A. The Relationship Between Defamation Per Se and Actual Malice**

Gonzales asserts that if a publication is defamatory per se then the defendant is liable without regard to fault. Because he contends that each of the Trevino Parties' publications is defamatory per se, he reasons that he is not required to prove actual malice.

As previously explained, whether a statement is defamatory per se affects the need to prove one of the other elements of a defamation claim, but the affected element is that of damages, not actual malice. *See**Tatum* , 554 S.W.3d at 626 ; *Hancock* , 400 S.W.3d at 63-64. We overrule this argument as to each publication and each defendant, and we instead determine whether Gonzales established a prima facie case of the elements of falsity and actual malice as to each of his claims.

**B. Publication by Mark Rodriguez**

In response to a post by a person supporting Gonzales's candidacy, Rodriguez posted the following on the social-media site "Nextdoor Eastwood":

> I think the community spoke loud and clear ... Sylvia Trevino received. I heard it was 53 or 54 S percent totaling 4700 hundred votes.. it sounds like you're bitter for something .. never-the-less good luck to your candid it ... nevertheless he's no preacher .. public intoxication *under a theft investigation which is still ongoing.... spouse beating not paying child support* ... the good thing he was a cop if not I'm sure the list would go on and on and on.. you don't need a microscope to find that stuff

We have italicized the language that Gonzales contends is a false statement of fact published with actual malice.

***1. "Under a theft investigation which is still ongoing"***

There is no evidence that the statement that Gonzales was "under a theft investigation which is still ongoing" was false at the time of the publication. If we consider only the evidence favorable to Gonzales from among the exhibits filed in the clerk's record, we have only Gonzales's affidavit testimony,

> I was not at the center of a theft investigation....

> Mark Rodriguez stated in a post after the election that I was at the center of a theft investigation, had engaged in 'spouse beating' and had failed to pay child support. I never engaged in 'spouse beating' and I always paid child support for my two daughters, Stephanie Lebron and Terra Gonzales. Furthermore, there is no court filing alleging that I failed to pay child support.

Gonzales does not identify the statement in which Rodriguez allegedly stated that Gonzales was at the "center" of a theft investigation, and although Gonzales denies that he was at the "center" of a theft investigation, he does not deny that he was under *853an ongoing theft investigation at the time of Rodriguez's publication. Gonzales also does not identify the date of Rodriguez's publication, or whether it was after the primary or the general election. Gonzales's affidavit contains no evidence from which we can infer that, at the time of the statements, Rodriguez had a high degree of awareness that the statement was probably false.

In their appellate briefs, however, the parties have relied on additional documentary evidence that appears in the back of a volume of the reporter's record. At the initial hearing on the motion to dismiss, counsel for Gonzales referred to exhibits A through F, and counsel for the Trevino Parties objected that the trial court was required to rule based on the pleadings and the affidavits, but the trial court ruled on neither the offer nor the objection.2 Inasmuch as these documents were discussed at the hearing and both parties rely on them in their briefing, we will assume, as the parties have done, that the documents were properly considered by the trial court and that we may do the same.3 When we consider this material, four documents make the context of the theft allegation apparent. Three of the four documents are emails with the subject line "lawsuit" sent from Victoriano Trevino to Victor Trevino on January 26, 2017-five weeks after this suit was filed.4

The first email contains an apparent screenshot from a mobile phone showing an undated social-media post by Gonzales. In the post, Gonzales states, "Helping Gloria Alvarez Rodriguez deliver hundreds of school backpacks to our future leaders." The post is accompanied by three pictures. One picture shows a pick-up truck with what appear to be boxes in the bed of the vehicle, and the other two are photos of three people in a room with stacks of backpacks.

The second email shows a screenshot of an another undated social-media post by Gonzales. The post includes a photograph of Gonzales leaning against a vehicle with an open hatch-back showing that the back of the vehicle is filled with backpacks. The photograph is accompanied by the text, "People are pulling up and I keep loading their vehicles with backpacks. Just kidding. These are being delivered. I did give some to several who pulled up. After all it's for the kids, right. Where's my help Gloria?"

The third document is from the Houston Police Department and is labeled "Administrative Information." Under an illegible heading, the document states, "Major Offenders - Police Impersona/Swindle," and under the heading "Summary," the document states, "MAJOR OFFENDERS DIVISION WAS ASSIGNED BY THE MAJOR OFFICE TO INVESTIGATE A POSSIBLE CASE OF CITY PROPERTY THEFT THAT WAS POSSIBLY MISAPPROPRIATED." The dates September 2, 2016 and October 26, 2016 appear on the document under illegible headings.

The fourth document is another "lawsuit" email containing a screenshot of another *854undated social-media post by Gonzales. The post states as follows:

> The Trevino camp has failed again in their attempt to derail me. During the time we were distributing free backpacks to the children, the Trevino camp pressured Councilmember Karla Cisneros to file a theft report, without any bases or evidence. They even called Channel 2, Ryan Korsgard to make a story out of their false accusation. Ryan Korsgard called me to ask questions. No wrong doing was found or it would have been a news story. The Trevino's are evil people in my opinion and they will do and say anything to win the election.

> The HPD case is closed. HPD knew it was a bogus complaint from the beginning because of the volunteers who gave out the backpacks are outstanding citizens of the community....

In sum, Gonzales acknowledges distributing backpacks and that a third party filed a theft report alleging that the backpacks were stolen. It is undisputed that the alleged theft was investigated. There is no evidence that the investigation was closed when Rodriguez published his statement, no evidence that Rodriguez knew that the investigation was no longer ongoing, and no evidence that Rodriguez was aware that his publication was probably false. As to this statement, Gonzales failed to produce evidence establishing a prima facie case of the elements of falsity and of actual malice.

***2. "Spouse beating"***

Concerning Rodriguez's allegation of "spouse beating," Gonzales's only evidence is the statement in his affidavit, "I never engaged in 'spouse beating.' " Although this is evidence of falsity, Gonzales produced no evidence of actual malice.

Gonzales argues that actual malice can be inferred simply because no criminal complaint has been filed against him for domestic violence and because Rodriguez supported an opposing candidate in an election. But a prima facie proof of actual malice requires more evidence than that. Our precedent in *Hoang v. Thinh Dat Nguyen* , No. 14-14-00942-CV, 2016 WL 4533417 (Tex. App.-Houston [14th Dist.] Aug. 30, 2016, no pet.) (mem. op.) illustrates this.

In 2010, Houston City Councilmember Aloysius Hoang told Thinh Dat Nguyen, the editor of a Vietnamese-language publication, that he, Hoang, was considering an invitation to visit Vietnam. *See**id.* at *1. Nguyen allegedly threatened to use his newspaper to "destroy" Hoang if he went. *See id.* Two years later, Nguyen welcomed the Vice Minister of Vietnam when he visited Houston. Three protests were organized in front of Nguyen's home and a bomb was placed there. *See id.*

Hoang lost his bid for reelection to the city council in 2013, but he won the Republican primary for a position as a state representative in 2014. *See id.* From 2010 until Hoang sued Nguyen after the primary election in 2014, Nguyen's paper repeatedly labeled Hoang "a Vietnamese Communist, an agent of Vietnamese Communist[s], or a spy of the Vietnamese Communist[s]." *See id.* Nguyen's paper additionally reported that Hoang's father had committed suicide because Hoang was a Communist, though according Hoang, his father was killed in a pedestrian-automobile collision. *See**id.* & n.3. Nguyen also stated that Hoang himself had made the bomb placed at Hoang's home in 2012 "to gain attention." *See id.*

Hoang received no response when he (a) asked Nguyen for a public debate, (b) asked Nguyen to stop making offensive statements about him, (c) offered to give the paper a public interview, (d) told Nguyen that Hoang was entitled to equal space *855in the publication to correct the facts, and (e) told the paper's owner to "take appropriate steps." *See**id.* at *3. Although Hoang "swore the false statements were factors leading to his failed re-election bid in 2013 and 'it could be the same for 2014 election,' " we agreed with the trial court that the foregoing was no evidence of actual malice. *See id.*

The facts of this case do not require a different result. Gonzales stated in his response to the motion to dismiss that the Trevino Parties' "personal relationship to Silvia Trevino and the context of their statements constitute circumstantial evidence of their state of mind." Even if we were to agree that Rodriguez had an injurious motive simply because his cousin and Gonzales were opposing candidates for the same office, an injurious motive alone is insufficient to establish a prima facie case of actual malice. *See**Bentley* , 94 S.W.3d at 596.

Gonzales additionally states that the Trevino Parties had "no reasonable basis for such statements.... The [Trevino Parties] do not articulate any basis for their belief that Gonzales committed these crimes or unlawful acts...." That argument fails for two independent reasons. First, the burden to "establish[ ] by clear and specific evidence a prima facie case for each essential element of the claim in question" rested on Gonzales alone. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). And second, the argument is factually incorrect. The Trevino Parties did articulate the bases for their respective statements. Indeed, Gonzales successfully moved for permission to conduct discovery for the express purpose of identifying the sources of the information stated or repeated in the Trevino Parties' publications, and he relied on those discovery responses at the hearing on the motion to dismiss.

The discovery responses identifying the sources of the Trevino Parties' information included an email containing an apparent screenshot of a mobile phone display showing a part of an undated social-media post by Gonzales and a response by Stella Cevallos-Vinson. The post by Gonzales begins, "This morning I had a great interview with Telemundo reporter Antonio Hernandez." The remainder of his post is cut off. Cevallos-Vinson replied,

> Since you are so adamant on belittling your opponent Silvia R. Trevino and her great husband Mr. Victor Trevino, did you by any chance advice him on this interview of your history of DOMESTIC VIOLENCE RICHARD? ? ? ? ?.... probably not huh? ? ? ? Precinct 6 people don't know you like I and your 1st wife know you Richard, and you know damn well what I'm talking about....... so STOP trying to fool these people and lie to them that they should vote for you, you know damn well that your not fit to be Constable of precinct 6

[lines possibly were cut off here, and the screenshot continues on another page]

> as hell aren't fit to represent PRECINCT 6. I would be glad to be interviewed by anyone so they will know the true Richard Gonzales......... your pathetic

There is no evidence supporting an inference that Rodriguez knew Cevallos-Vinson falsely alleged that Gonzales committed domestic violence against his first wife, or that Rodriguez had a high degree of awareness that the allegation was probably false. Gonzales points out that, as the Supreme Court of Texas has stated, "inherently improbable assertions and statements made on information that is obviously dubious may show actual malice,"5

*856but Cevallos-Vinson's statements are neither, nor does Gonzales contend otherwise. We therefore conclude that Gonzales failed to produce evidence establishing a prima facie case of actual malice regarding this statement.

***3. "Not paying child support"***

Our analysis regarding Rodriguez's statement about Gonzales "not paying child support" is nearly identical to our analysis concerning his statement about "spouse beating." Here, too, Gonzales produced evidence of falsity, but no evidence of actual malice.

Gonzales asserts that Rodriguez had no external sources for this statement, but he cites no evidence in support of this contention. He then makes the contrary assertion that Rodriguez published his statement concerning child support after seeing Cevallos-Vinson's post in which she said of Gonzales, "I know he was way behind on child support when I dated him." Cevallos-Vinson's statement is neither inherently improbable nor obviously dubious. Thus, Gonzales failed to establish a prima facie case of actual malice for any part of Rodriguez's publication.

We accordingly reverse the portion of the trial court's ruling denying the motion to dismiss as to Rodriguez.

**C. Publication by Victor Trevino III**

Victor posted the following on social media, apparently in response to a post by another user:6

> Mr. O'Sullivan, ... [A]nytime you attempt to say something negative about my parents, I will continue to remind Nextdoor readers of the FACTS about your Republican candidate.

> FACTS such as your Republican candidate is the ONLY candidate that has a CONVICTION of a Criminal Offense on his record. FACTS such as he was ARRESTED, CHARGED, and CONVICTED of Public Intoxication. FACTS such as your Republican candidate is the only candidate with two separate incidents which he was Reprimanded and Disciplined while with HPD for Official Misconduct. *FACTS such as your Republican candidate is the only candidate which his previous girlfriend/ex wife filed on him while with HPD for Domestic Violence.* Which now even more women are coming forward to verify on Facebook. *And of course the FACT that your Republican candidate is currently at the center of a Criminal Investigation by HPD for storing and distributing stolen merchandise. A crime in which even your Republican candidate has acknowledged he has been questioned for regarding him admitting on his Facebook that he stored and distributed stolen merchandise.*

> Regarding proof you asked for recently on another post, your Republican candidate has made countless baseless allegations against my parents, all of which they have emphatically denied, which you and your Republican candidate have never provided any proof but I don't have to show proof when your Republican candidate hasn't even denied the validity of any of my comments or allegations I have made against him because he knows they are TRUE, and more importantly he knows I have the documentation to prove it if he ever thought about denying them.

Again, we have italicized the language that Gonzales contends are false statements of fact published with actual malice.

*857***1. "Previous girlfriend/ex wife filed on him ... for Domestic Violence"***

Gonzales attested that he never engaged in "spouse beating" and that no complaint has ever been filed against him for domestic violence. Most of his arguments regarding this statement focus on the absence of a filed complaint. The "gist" of the publication, however, is that Gonzales is unfit to be constable because he has been convicted of one criminal offense, disciplined for official misconduct, and accused of, or investigated for, additional offenses. Regarding domestic violence, the implicit accusation is that Gonzales committed the crime of domestic violence-a statement that is defamatory per se, regardless of whether anyone filed a criminal complaint. Gonzales denies that he ever dated Cevallos-Vinson, but he does not deny that he committed domestic violence against a girlfriend; thus, even if no complaint was filed, Gonzales has failed to show that the statement is not substantially true. He therefore failed to meet his burden to establish by clear and specific evidence a prima facie case for the element of falsity.

In addition, Gonzales failed to establish a prima facie case of actual malice. Gonzales relied in part on Victor's declaration, "I based my November 2, 2016 post on Nextdoor Eastwood on information received from other residents of East End, Houston, Texas, as well as Facebook posts by Stella Cevallos-Vinson and Plaintiff Richard Gonzales, which I believed to be true." At the hearing on the motion to dismiss, Gonzales relied on the Trevino Parties' discovery responses documenting some of these sources. The discovery responses included the previously discussed post by Stella Cevallos-Vinson accusing Gonzales of domestic violence, as well as the following string of Facebook posts:

> **Joe Joey**

> * * *BREAKING NEWS* * *

> Republican Candidate Richard Gonzales has been ARRESTED, CHARGED, and CONVICTED of Public Intoxication.

> Now it finally makes since why Republican Candidate Richard Gonzales is always trying so hard to deflect any and all attention away from him and onto his opponent. It turns out Republican Candidate Richard Gonzales is the ONLY actual candidate for Precinct 6 Constable that has ever been ARRESTED CHARGED, and CONVICTED of a Criminal Offense

> *Now the reported allegations of Drunken Domestic Violence are starting to make a lot more sense* ....

> **Juan Munoz** WOW!!!! This was news.... in 1978!! C mon man, dig up some stuff that happened in this century! It looks like desperation to me. I'm sure someone can dig up something on you when you were a teenager.

> ....

> **Joe Joey** Stella Cevallos-vinson explain to Mr. Juan Munoz what kind of Hell Rick Gonzeles put you through. Since I appear desperate

> **Juan Munoz** I don't know the lady. I don't know her story. If something actually happened (I'm not saying it didn't I wasn't there), there were legal avenues she could have pursued. There are always 2 sides to every story.

> **John Guajardo II** Domestic violence is domestic violence regardless especially in the great state of Texas.

> **Juan Munoz** Being stupid is being stupid in any state.

> **John Guajardo II** Exactly. Too bad people like Rick don't understand that concept *858**Joe Joey** Totally see your point Mr. Juan Munoz.... These are real claims from someone who once had a relationship with Rick. I am requesting an open records act to show proof that this occurred.

> ....

> **Stella Cevallos-vinson** He was not a teenager, and being abusive to a woman, being physically and or verbally is not ok. It's obvious that regardless you Juan Munoz are for that piece of [expletive]

> **Juan Munoz** Stella Cevallos-vinson did you report this to the police? Regardless of who I'm for, wrong is wrong. But to come out now and bring it up, I hope you understand how it looks suspicious

> **Stella Cevallos-vinson** Of course it might look suspicious but I'm not one to make false claims or accusations on anyone. And no it wasn't reported to police ... stupidity on my part and *I was still dating him.* I know the truth and so does he.

> ....

> **Juan Guajardo II** .... Never have we had a candidate as dangerous as Rick Gonzales run for office....

> ....

> **Stella Cevallos-vinson** Well we just won't worry about him because he will NOT be elected.... Thank God.... and when you say dangerous, *by all means is he ever dangerous7*

There is no evidence that Victor actually knew that such statements explicitly or implicitly accusing Gonzales of domestic violence were false, and the statements themselves are neither inherently improbable nor obviously dubious.

***2. "Currently at the center of a Criminal Investigation"***

Our analysis of this statement by Victor mirrors our analysis of Rodriguez's statement that Gonzales was "under a theft investigation that is still ongoing." Gonzales attested, "I was not at the *center* of a theft investigation,"8 but he admits both that City Councilmember Karla Cisneros filed a theft report claiming that the backpacks he distributed were stolen and that the Houston Police Department investigated the complaint. Because Gonzales produced no evidence that the investigation concluded before Victor posted this statement on November 2, 2016, Gonzales failed to show that Victor's statement is not substantially true. Stated differently, Gonzales failed to produce clear and specific evidence establishing a prima facie case of the element of falsity.

Gonzales also produced no evidence of actual malice. There is no evidence that when Victor posted this statement, he knew that the investigation had concluded that he seriously doubted that the investigation was ongoing.

***3. "Acknowledged he has been questioned [about] admitting on his Facebook that he stored and distributed stolen merchandise"***

Regarding this statement, Gonzales attested that he has never admitted to storing and distributing stolen merchandise. His affidavit testimony is clear and specific evidence establishing a prima facie case of the element of falsity.

The element of actual malice is more problematic. It is true that Gonzales posted pictures of a room containing stacks of backpacks and posted photos and texts admitting that he was distributing *859the backpacks. Gonzales also admitted in another post that a member of the Houston City Council had filed a police report claiming that the backpacks were stolen. Gonzales stated in the latter post that the complaint was baseless and was filed at the instigation of the "Trevino camp," but "[t]he mere fact that a defamation defendant knows that a public official has denied harmful allegations or offered an alternative explanation of events is not evidence that the defendant doubted the allegations." *Hoang* , 2016 WL 4533417, at *3 (quoting *Hotze v. Miller* , 361 S.W.3d 707, 718 (Tex. App.-Tyler 2012, pet. denied) ). It nevertheless remains true that Gonzales did admit on Facebook that he distributed the backpacks; he did admit that Karla Cisneros filed a police report claiming that the backpacks were stolen; and he did admit that a reporter questioned him about these events. Given the absence of evidence that Victor knew Cisneros's theft allegations were false or had a high degree of awareness that the allegations were probably false, it cannot be said that Gonzales established a prima facie case of the element of actual malice.

We reverse the portion of the trial court's ruling denying the motion to dismiss as to Victor.

**D. Thomas Trevino**

In Thomas Trevino's social-media post, he wrote as follows:

> The republican Rick Gonzalez likes to point out everyones criminal records. Heres one for you Rick, why dont u put ur criminal past agains my moms criminal past. My mom has no criminal past/ Record. In my opinion your violation of non payment of child support is worse than any felony. What a disgrace.-T #VoteSilviaTrevino

Although it is undisputed that Gonzales has a criminal record for public intoxication, Gonzales contends that by juxtaposing an allusion to his criminal record with the statement opining that non-payment of child support is worse than any felony," Thomas implied that Gonzales has a criminal conviction for intentionally or knowingly failing to pay child support. *See* TEX. PENAL CODE ANN. § 25.05 (West 2011). In any event, we assume, without deciding, that the statement is defamatory per se.

Gonzales and his daughter Stephanie Lebron each attested that Gonzales "always paid child support"; thus, Gonzales produced clear and specific evidence establishing a prima facie case for the element of falsity.

The same cannot be said about the element of actual malice. There is no evidence that Thomas knew the statement was false or made the statement with a high degree of awareness of its probable falsity.

As evidence of actual malice, Gonzales relied on Thomas's declaration, which was attached to the Trevino Parties' reply to Gonzales's response to the motion to dismiss. In his declaration, Thomas stated, "I based my November 1, 2016 post on Facebook on information received from Plaintiff Richard Gonzales's daughter, Stephanie Gonzales Lebron, which I believed to be true." Gonzales also relied on Lebron's affidavit, in which she stated that she went to high school with Thomas and occasionally sees him at social events, but she has never told Thomas or anyone else that Gonzales failed to pay child support. Such evidence, however, does not rise to the level of actual malice. *See**Gonzales v. Hearst Corp.* , 930 S.W.2d 275, 283 (Tex. App.-Houston [14th Dist.] 1996, no writ) (where reporter spoke with multiple police officers to verify the incident reported, one could reasonably infer that the reporter was mistaken or negligent but could not *860reasonably infer that the reporter willfully published false information). Because Thomas does not identify the "information received" from Lebron, we do not know whether he claims that Lebron affirmatively stated that Gonzales failed to pay child support when due or whether Thomas erroneously inferred this from something else that Lebron said.

We reverse the portion of the trial court's ruling denying the motion to dismiss as to Thomas. Having reversed the ruling as to each of the Trevino Parties, we sustain their second issue.

**IV. DISMISSAL AWARDS**

Having sustained each of the Trevino Parties' first two issues, we now reach their final issue, in which they argue that the trial court erred in failing to award them attorney's fees and sanctions as required under the TCPA. If a claim is dismissed under the TCPA, the trial court is statutorily required to award to the movant "court costs, reasonable attorney's fees, and other expenses incurred in defending against the legal action as justice and equity may require," as well as "sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter." TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a). Because the trial court erred in denying the motion to dismiss as to each of the Trevino Parties, the trial court also erred in failing to make dismissal awards to each of the Trevino Parties as required by section 27.009. We accordingly sustain the Trevino Parties' third issue.

**V. CONCLUSION**

The Trevino Parties met their burden to show that the TCPA applies to Gonzales, and as a limited-purpose public figure, Gonzales bore the burden to produce clear and specific evidence establishing a prima facie case for each element of his defamation claims, including the elements of falsity and actual malice. Because he failed to satisfy that burden, we reverse the trial court's denial of the Trevino Parties' motion to dismiss, and we remand the cause for the trial court (a) to determine the amount of attorney's fees, court costs, and sanctions to award to each of the Trevino Parties, (b) to determine the extent to which justice and equity require an award to any of the Trevino Parties of "other expenses incurred in defending against the legal action," and (c) to render a judgment making such awards and dismissing the action. *See id.*

( Frost, C.J., concurring and dissenting).

**CONCURRING AND DISSENTING OPINION**

Kem Thompson Frost, Chief Justice

In this interlocutory appeal involving social-media speech about a candidate, the putative defamers challenge an order denying their motion to dismiss under the Texas Citizens Participation Act. Though the majority correctly determines that the candidate, appellee Richard "Rick" Gonzales did not establish by clear and specific evidence a prima facie case for each essential element of his claims against appellant Mark Rodriguez, I part ways with the majority in its determination that Gonzales failed to carry this burden as to appellants Victor Trevino III and Thomas Trevino.

**I. Applicable Legal Standards**

If a party moving to dismiss an action under Chapter 27 of the Texas Citizens Participation Act (the "Act") meets its initial burden to show by a preponderance of the evidence that the action is based on, relates to, or is in response to the movant's *861exercise of the right of free speech, the right to petition, or the right of association, the trial court must dismiss the action unless the party bringing the action establishes "by clear and specific evidence a prima facie case for each essential element of the claim in question."1

A "prima facie case" refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted.2 A prima facie case reflects the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.3 The phrase "clear and specific" describes the "clarity and detail required to avoid dismissal" and does not impose a burden of proof higher than the burden required at trial.4

As to each of his defamation claims, Gonzales must prove that the defendant in question (1) published a false statement of fact to a third party (2) that was defamatory concerning Gonzales (3) while acting with actual malice regarding the truth of the statement.5 Gonzales also asserted libel claims. "A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury."6 As to each of Gonzales's libel claims, Gonzales must prove that the defendant in question (1) published in written or graphic form a false statement of fact to a third party (2) that was defamatory concerning Gonzales (3) while acting with actual malice regarding the truth of the statement.7 The law classifies defamation, and libel, as either per se or per quod.8 Defamation per se or libel per se occurs when a statement is so obviously detrimental to the plaintiff's good name that a jury may presume general damages, such as for loss of reputation or for mental anguish.9 The law typically classifies statements that cause injury to one's office, profession, or occupation as defamatory per se.10 Accusing a person in writing of having committed a crime constitutes defamation or libel per se.11 Defamation per quod is simply defamation that is not actionable per se.12

Actual malice in this context does not mean bad motive or ill will but rather knowledge of, or reckless disregard for, the falsity of the statement.13 Simply stated, *862the focus centers on the alleged defamer's attitude toward the truth rather than the alleged defamer's attitude toward the person allegedly defamed.14

Knowledge of falsehood is a relatively clear standard; "reckless disregard" is much less so.15 A subjective standard that focuses on the conduct and state of mind of the defendant, "reckless disregard" requires more than negligence.16 The record must contain evidence that the defendant in fact entertained serious doubts as to the truth of the publication, evidence the defendant "actually had a "high degree of awareness of ... [the] probable falsity" of the defamatory statement.17 The failure to investigate the facts before speaking as a reasonably prudent person would do, standing alone, is not evidence of a reckless disregard for the truth, but evidence that a failure to investigate was contrary to a speaker's usual practice and motivated by a desire to avoid the truth may demonstrate the reckless disregard required for actual malice.18 Although courts must be careful not to place too much reliance on motive and care, a plaintiff may prove the defendant's state of mind through circumstantial evidence, and it cannot be said that evidence concerning motive or care never bears any relation to the actual-malice inquiry.19

To disprove actual malice, one may testify about one's own thinking and the reasons for one's actions, and may be able to negate actual malice conclusively.20 But, one's testimony that one believed what one said does not make the showing conclusive, regardless of all other evidence.21 The evidence must be viewed in its entirety.22 A defendant's state of mind can be proved by circumstantial evidence.23 A lack of care or an injurious motive in making a statement does not alone prove actual malice, but care and motive stand as factors to be considered.24 An understandable misinterpretation of ambiguous facts does not show actual malice, but inherently improbable assertions and statements made on information that is obviously in doubt may show actual malice.25 A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is.26

At trial, Gonzales would have to prove malice by clear and convincing evidence.27 For analysis' sake, we may presume that the clear-and-convincing-evidence standard does not apply in determining a motion to dismiss under the Act.28

*863**II. Did the Gonzales establish by clear and specific evidence a prima facie case for each essential element of his defamation claims against Thomas Trevino?**

The majority correctly determines that appellants Victor Trevino III, Thomas Trevino, and Mark Rodriguez (collectively the "Trevino Parties") met their initial burden to show by a preponderance of the evidence that each of Gonzales's claims is based on, relates to, or is in response to the movant's exercise of the right of free speech, the right to petition, or the right of association. Because the Trevino Parties carried their initial burden under the Act, this court must determine whether Gonzales established by clear and specific evidence a prima facie case for each essential element of his defamation claims against Victor III.29

In his live pleading Gonzales complained of a social-media post Thomas Trevino made on Facebook a week before the election. In the post, Thomas Trevino stated:

> "The republican Rick Gonzalez likes to point out everyone[']s criminal records. Here[']s one for you Rick, why don[']t [you] put ur criminal past agains[t] my mom[']s criminal past. My mom has no criminal past/ Record. In my opinion **your violation of non payment of child support** is worse than any felony. What a disgrace.-T #VoteSilviaTrevino"30,31

Clear and specific evidence establishes a prima facie case that the "Rick Gonzalez" to which Thomas referred was Gonzales. Gonzales filed an affidavit in which he states, "I always paid child support for my two daughters, Stephanie Lebron and Terra Gonzales. Furthermore, there is no court filing alleging that I failed to pay child support." Clear and specific evidence establishes a prima facie case that Thomas published to a third party a statement of fact in written or graphic form - that Gonzales did not pay child support - and that this statement was false and defamatory per se concerning Gonzales.32

The next question is whether clear and specific evidence establishes a prima facie case that Thomas published this statement while acting with actual malice regarding the statement's truth.

In his affidavit Thomas stated he based this post "on information received from Plaintiff Richard Gonzales's daughter, Stephanie Gonzales Lebron, which I believed to be true." Thomas stated that he posted this information on Facebook "to communicate with other voters in [his] community with an interest in the election."

Gonzales filed an affidavit from Stephanie Gonzales Lebron in which she stated that her father "always paid child support until [she] was 18 years old." Lebron states that she knows Thomas from high school and occasionally sees him at social events. She stated: "I have never told Thomas Trevino or anyone else that my father failed to pay child support." She further stated that the subject matter is something she would never discuss with Thomas Trevino.33

Thomas contends even if Lebron's testimony contradicts his statement that he relied on information he received from Lebron, he still might prevail on this point.

*864Thomas asserts that *Gonzales v. Hearst Corp.* controls the outcome. In that case, the plaintiff's primary evidence of malice was a direct contradiction between a defendant news journalist's testimony and that of the journalist's alleged source.34 The *Houston Chronicle* , in a front-page story, incorrectly had named the plaintiff-Officer Ricardo Gonzales of the Houston Police Department - as the police officer involved in a shooting. The story was about another officer - Robert Gonzalez. Ricardo Gonzales sued for defamation. In addressing the contradiction between the journalist (Campbell) and the alleged source, this court explained:

> First, Baker unequivocally denies giving Campbell the name Ricardo Gonzales. Campbell, on the other hand, claimed to have gotten the name Ricardo Gonzales from Baker. We must disregard Campbell's testimony, take Baker's version as true, and conclude that Campbell's alleged source did not give him the erroneous name. Appellant argues that this version of the facts supports the inference that Campbell must have fabricated the name he used in the story. We do not agree that this is a reasonable inference to draw from the evidence before us.35

Trevino's discussion of the case downplays evidence showing that the defendant-journalist had a strong reputation for accuracy and had interviewed four other officers in writing the story. But it was upon that evidence that this court concluded that "a juror or judge might reasonably infer from the evidence that Campbell was mistaken about his source, or negligent, but not that he had willfully published false information in his story."36

Applying the same analysis, treating Lebron's testimony as true, and disregarding Thomas Trevino's testimony to the extent there is a conflict, yields a different result. Material facts present in *Gonzales v. Hearst Corp* are not present in today's case - proof of a reputation for accuracy and indicia of diligence in investigating.37 In addition, Thomas testified that the only source of the information on which he based his post was Lebron. And, this court must consider factors not present in *Gonzales v. Hearst Corp.* , such as the putative defamer's motivation in the form of political and familial loyalty.38

Under the applicable standard of review, clear and specific evidence establishes a prima facie case that Thomas published to a third party by written or graphic means a statement that Gonzales did not pay child support while acting with actual malice regarding the statement's truth.39 Thus, this court should overrule the second issue as to Gonzales's defamation and libel claims against Thomas.

**III. Did the Trevino Parties establish by clear and specific evidence a prima facie case for each essential element of Gonzales's defamation claims against Victor Trevino III?**

Because Victor Trevino III met his initial burden to show by a preponderance of the evidence that each of Gonzales's claims *865is based on, relates to, or is in response to the movant's exercise of the right of free speech, the right to petition, or the right of association, this court must determine whether Gonzales established by clear and specific evidence a prima facie case for each essential element of Gonzales's defamation claims against Victor III.40

At trial, Gonzales would have to prove malice by clear and convincing evidence.41 As noted, this court may presume, without deciding, that the clear-and-convincing-evidence standard does not apply in determining a motion to dismiss under the Act.42

For each alleged defamatory statement, this court must determine whether the trial court erred in concluding that Gonzales established by clear and specific evidence a prima facie case for the elements in question.

In his live pleading, Gonzales asserted defamation claims against Victor Trevino III based on statements Trevino III made in social-media posts on "Nextdoor Eastwood" a week before the election. In a post dated "Nov 2", Victor Trevino III stated:

> Mr. O'Sullivan, ... [A]nytime you attempt to say something negative about my parents, I will continue to remind Nextdoor readers of the FACTS about your Republican candidate.

> FACTS such as your Republican candidate Is the ONLY candidate that has a CONVICTION of a Criminal Offense on his record, FACTS such as he was ARRESTED, CHARGED, and CONVICTED of Public intoxication, FACTS such as your Republican candidate is the only candidate which his previous girlfriend/ex wife filed on him while with HPD for Domestic Violence. Which now even more women are coming forward to verify on Facebook. And of course the FACT that your Republican candidate is currently at the center of a Criminal Investigation by HPD for storing and distributing stolen merchandise. A crime in which even your Republican candidate has acknowledged he has been questioned for regarding him admitting on his Facebook that he stored and distributed stolen merchandise.

> Regarding proof you asked for recently on another post, your Republican candidate has made countless baseless allegations against my parents, all of which they have emphatically denied, which you and your Republican candidate have never provided any proof but I don't have to show proof when your Republican candidate hasn't even denied the validity of any of my comments or allegations I have made against him because he knows they are TRUE, and more importantly he knows I have the documentation to prove it. if he ever thought about denying them ...

In his lawsuit Gonzales complains of Trevino's statements in the post that (1) "your Republican candidate is currently at the center of a Criminal Investigation by HPD for storing and distributing stolen merchandise"; (2) "[a] crime in which even your Republican candidate has acknowledged he has been questioned for regarding him admitting on his Facebook that he stored and distributed stolen merchandise"; and (3) "your Republican candidate is the only candidate which his previous *866girlfriend/ex wife filed on him while with HPD for Domestic Violence."

**A. Statement that appellant was at the center of a criminal investigation for storing and distributing stolen merchandise**

As to the first statement, it may be presumed that Trevino III referred to Gonzales and stated that he was then "at the center of a Criminal Investigation by HPD for storing and distributing stolen merchandise." In the context of this suit, the discrete statement in Victor's post that Gonzales was "at the center" of such a criminal investigation is not actionable on its own as an objectively verifiable fact.43

**B. Statement about Gonzales admitting that he stored and distributed stolen merchandise**

As to Trevino III's statement that "[a] crime [storing and distributing stolen merchandise] in which even your Republican candidate has acknowledged he has been questioned for regarding him admitting on his Facebook that he stored and distributed stolen merchandise." The record contains clear and specific evidence establishing a prima facie case that the "Republican candidate" to which Trevino III referred was Gonzales. For the purpose of the rest of the analysis, this court may presume that Gonzales is the referenced candidate.

In this statement, Trevino III says that Gonzales has acknowledged he has been questioned about storing and distributing stolen merchandise. Trevino also states that Gonzales has acknowledged he has been questioned about Gonzales admitting on his Facebook page that he stored and distributed stolen merchandise. Trevino does not expressly say that Gonzales admitted on his Facebook page that he stored and distributed stolen merchandise. Nonetheless, Trevino III's post reasonably can be understood as stating that Gonzales admitted on his Facebook page that he stored and distributed stolen merchandise.44 The implication that Gonzales had made such an admission is among the implications that an objectively reasonable reader would draw from Trevino III's post.45

The implied statement that Gonzales admitted to the criminal conduct of storing and distributing stolen merchandise is defamatory per se concerning Gonzales.46 Gonzales filed an affidavit in response to the motion to dismiss in which he testifies that he did not make such an admission: "nor did I ever admit ... to storing and distributing stolen merchandise." The record contains clear and specific evidence establishing a prima facie case that Trevino III published to a third party an implied statement of fact - that Gonzales admitted to the criminal conduct of storing and distributing stolen merchandise - and that this statement was false and defamatory concerning Gonzales.47

The next issue is whether clear and specific evidence establishes a prima facie case that Trevino III published this statement while acting with actual malice regarding the statement's truth. Trevino III filed an affidavit in which he states that he based his post "on information received from other residents of East End, Houston, *867Texas, as well as Facebook posts by Stella Cevallos-Vinson and Plaintiff Richard Gonzales, which I believed to be true." Trevino III states that he posted this information on "Nextdoor Eastwood, a neighborhood social network, to communicate with other voters in [his] neighborhood." Trevino III does not name any resident, or refer to or attach as an exhibit any specific Facebook post on which he allegedly based the post in question.

Attached to the reporter's record from the July 24, 2017 trial-court hearing are twenty-one pages of documents that apparently were part of the Trevino Parties' responses to Gonzales's discovery requests. The clerk's record on appeal does not contain these documents, and the record indicates that they were not filed with the trial court clerk. No party offered these document into evidence at any hearing, nor did the trial court admit any of these documents into evidence at any hearing. At the hearing on June 29, 2017, the trial court considered these documents as part of the evidence pertinent to the Trevino Parties' motion to dismiss. On appeal, both Gonzales and the Trevino Parties cite these documents in support of their arguments. No party lodges any complaints that the trial court should not have considered these arguments. Nor does any party urge this court not to consider these documents. No party argues that these documents were not part of any pleading or affidavit and that section 27.006(b) requires this court to consider only pleadings and affidavits. No party asserts these documents were not authenticated or voices any objection to the form of these documents.48 This court may presume, without deciding, that under section 27.006(b) courts may consider only pleadings and affidavits in determining whether to grant a motion to dismiss under the Act. Even under this presumption, the parties have waived each of the foregoing complaints, and this court may consider these documents as part of the evidence in determining whether the trial court erred in denying the motion to dismiss.49

Among these documents were four emails containing phone images of Facebook posts by Gonzales, a photograph of a document apparently from the Houston Police Department stating "MAJOR OFFENDERS DIVISION WAS ASSIGNED BY THE MAJOR OFFICE TO INVESTIGATE A POSSIBLE CASE OF CITY PROPERTY THEFT THAT WAS POSSIBLY MISAPPROPRIATED"50 ; an email containing an image of a Facebook post by Stella Cevallos-Vinson responding to a post by "Richard Rick Gonzales" relating to his appearance on Telemundo; a copy of a Facebook timeline string, including posts by Stella Cevallos-Vinson, and other supporters of the two candidates ("Facebook Timeline String"); an image of an employment *868application of Richard James Gonzales to the Civil Service Department of the City of Houston dated "9-28-83."

Gonzales's Facebook posts include statements and photos indicating that Gonzales was assisting in the delivery of backpacks, and contain photos of Gonzales next to a car full of backpacks. Other photos show other individuals working a room containing stacks of backpacks, and a truck loaded with backpacks. The posts contain the following messages:

> Helping Gloria Alvarez Rodriguez deliver hundreds of school backpacks to our future leaders.

Another posts states:

> People are pulling up and I keep loading their vehicles with backpacks. Just kidding. These are being delivered. I did give some to several who pulled up. After all it's for the kids, right. Where's my help Gloria?

Another post states:

> The Trevino camp has failed again in their attempt to derail me. During the time we were distributing free backpacks to the children, the Trevino camp pressured Councilmember Karla Cisneros to file a theft report, without any bases or evidence. They even called Channel 2, Ryan Korsgard to make a story out of their false accusation. Ryan Korsgard called me to ask questions. No wrong doing was found or it would have been a news story. The Trevino's are evil people in my opinion and they will do and say anything to win the election The HPD case is closed. HPD knew it was a bogus complaint from the beginning because of the volunteers who gave out the backpacks are outstanding citizens of the community. Every ... People who know me, know that I am giver not a thief. I understand that campaigns can be damaging, especially when false statements are said. I assure you that my honesty and trustworthiness is well known in our community. Victor Trevino III is a teacher at Stephen F Austin High School and has been making damaging and untruthful statements, however the Principal Steve Gu[e]rrero has done nothing in regard to his actions. I would not allow my children to be in his class. Victor where were you when your dad was stealing thosands [sic] of dollars from the community?

In his post, Gonzales acknowledges an "HPD case" which he states is "closed," commenting that it was a "bogus complaint," and adding that "people who know me, know that I am a giver not a thief." According to Gonzales's post, Karla Cisneros filed a "theft report" apparently indicating that Gonzales was involved in theft. Gonzales also suggests that the "Trevino camp" called reporter Ryan Korsgard and told him false allegations about Gonzales. In the post, Gonzales indicates that the Houston Police Department investigated Gonzales to see if he was involved in theft. Still, nothing in this post or in any of the other evidence shows that Gonzales admitted to storing and distributing stolen merchandise.

Victor's post includes a statement that Victor had possession of documentation to support his statements: "he knows I have the documentation to prove it if he ever thought about denying them." Victor did not provide this documentation in the trial court. Although Victor has stated that he believed the statements were true, and that he relied upon Gonzales's Facebook posts, the record contains no testimony specifying the post on which he was relying. It is unclear from the record whether the posts about the backpacks were the only posts from Gonzales on which Victor was relying to make the statement. If so, these posts do not contain a statement by Gonzales admitting that he stored and distributed *869stolen merchandise. Victor does not argue that he misinterpreted the Facebook posts from Gonzales that are in the appellate record, nor could a reasonable fact finder conclude that Gonzales admitted to storing or distributing stolen merchandise in any of these posts.

Under the applicable standard of review, the record contains clear and specific evidence establishing a prima facie case that Trevino III published to a third party an implied statement that Gonzales admitted to storing and distributing stolen merchandise while acting with actual malice regarding the statement's truth.51

**C. Statement Regarding Domestic Violence Filing**

The evidence shows that Trevino III published a statement that "your Republican candidate is the only candidate which his previous girlfriend/ex wife filed on him while with HPD for Domestic Violence." In these statements Victor III asserts that while Gonzales was working for the Houston Police Department, his ex-girlfriend or ex-wife filed a domestic-violence complaint against Gonzales and that more women are verifying this fact on Facebook. Clear and specific evidence establishes a prima facie case that the "Republican candidate" to which Trevino III referred was Gonzales. In his affidavit Gonzales states that Victor III's post that Gonzales's "ex-wife or girlfriend had made a domestic violence complaint against [him] ... completely false." Gonzales testified that "[n]o such complaint has ever been filed against [Gonzales] by anyone including an ex-wife of girlfriend." Clear and specific evidence establishes a prima facie case that Trevino III published to a third party a statement of fact in written or graphic form - that Gonzales's former girlfriend or ex-wife filed a complaint against Gonzales alleging domestic violence - and that this statement was false and defamatory per se concerning Gonzales.52

The majority does not address the falsity of the statement that "your Republican candidate is the only candidate which his previous girlfriend/ex wife filed on him while with HPD for Domestic Violence."53 Instead, the majority concludes that the "gist" of this publication "is that Gonzales is unfit to be constable because he has been convicted of one criminal offense, disciplined for official misconduct, and accused of, or investigated for, additional offenses."54 Rather than analyze the express statement that Trevino III made, the majority analyzes what it calls "the implicit accusation ... that Gonzales committed the crime of domestic violence." The majority then concludes that clear and specific evidence does not establish a prima facie case that this implicit statement is false.55

The majority skips an essential step in the analysis. Though a plaintiff may base a textual-defamation claim on the gist of the text or on an implication from the text, a plaintiff also may base a textual-defamation claim on the meaning of an explicit statement in the text.56 Therefore, the majority should address the falsity of the statement that "your Republican candidate is the only candidate which his previous girlfriend/ex wife filed on him while with HPD for Domestic Violence."57

*870The next issue is whether clear and specific evidence establishes a prima facie case that Trevino III published this statement while acting with actual malice regarding the statement's truth. Victor filed an affidavit stating he based his post "on information received from other residents of East End, Houston, Texas, as well as Facebook Posts by Stella Cevallos-Vinson and Plaintiff Richard Gonzales, which I believed to be true." Neither party presented any documentation showing that any former girlfriend or ex-wife of Gonzales ever filed a complaint alleging Gonzales committed domestic violence.

Statements made by Stella Cevallos-Vinson in the Cevallos-Vinson's Facebook Post and Facebook Timeline String show that she contends that Gonzales abused her years before; but Cevallos-Vinson does not say that she or any other person filed a complaint alleging that Gonzales committed domestic violence or that she or any other person otherwise reported this alleged domestic violence by Gonzales to authorities or sought to have charges brought against Gonzales. In fact, in one of her Facebook posts, Cevallos-Vinson states "no it wasn't reported to the police ... stupidity on my part and I was still dating him." None of Cevallos-Vinson's posts in the record state that there were charges "filed on" Gonzales. None of Gonzales's posts in the record state that there were charges "filed on" Gonzales. The Facebook Timeline String includes one post by a person named "Joe Joey" who mentions "reported allegations of Drunken Domestic Violence" in reference to Gonzales, but that post does not state that any person filed a complaint alleging that Gonzales committed domestic violence or that any person otherwise reported alleged domestic violence by Gonzales to authorities or sought to have charges brought against Gonzales.

Trevino III's statement that he believed his statements were true does not conclusively negate actual malice.58 Likewise, nothing in the record from Victor III's other purported sources suggests that Gonzales's former girlfriend or ex-wife filed a complaint against Gonzales alleging domestic violence. Victor does not contend that there is any basis in the record from which Victor might reasonably infer that such a complaint was made, and the record does not reflect any basis for such an inference. As with the other statements in Victor's post, they were made alongside his contention that they were supported by documentation. Victor's failure to identify the "documentation" to which he refers in his post that allegedly would show that Gonzales had domestic-violence complaints "filed on" or against him tends to suggest that documentation did not exist.

Under the applicable standard of review, clear and specific evidence establishes a prima facie case that Trevino III published to a third party by written or graphic means a statement that Gonzales's former girlfriend or ex-wife filed a complaint against Gonzales alleging domestic violence while acting with actual malice regarding the statement's truth.59 Thus, this court should overrule the Trevino Parties' second issue as to Gonzales's defamation and libel claims against Trevino III.

*871**IV. Did the trial court err in denying court costs, reasonable attorney's fees, other expenses, and sanctions under section 27.009(a) ?**

In their third issue, the Trevino Parties assert that the trial court erred in denying their request for attorney's fees and sanctions under section 27.009(a).60 Section 27.009, entitled "Damages and Costs," mandates that if an action is dismissed under the Act, the trial court "shall award to the moving party ... court costs, reasonable attorney's fees, and other expenses incurred in defending against the legal action as justice and equity may require," as well as "sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter."61 Because the trial court did not err in denying the motion to dismiss by Victor III or by Thomas, the trial court did not err in denying court costs, reasonable attorney's fees, other expenses, and sanctions under section 27.009(a).62

Because the trial court erred in denying Rodriguez's motion to dismiss under the Act, the trial court also erred in denying court costs, reasonable attorney's fees, other expenses, and sanctions under section 27.009(a).63 Thus, this court should overrule the third issue as to Victor III and Thomas and sustain the third issue as to Rodriguez.

**III. CONCLUSION**

The trial court erred in denying Rodriguez's motion to dismiss, so this court correctly reverses the trial court's order and remands as to Gonzales's claims against Rodriguez. But, because the trial court did not err in denying either the motion to dismiss by Victor III or the motion to dismiss by Thomas, the court should affirm the trial court's order to the extent the trial court denied these motions. Because the majority instead reverses, I respectfully dissent as to this part of the court's judgment.

( Christopher, J., majority).

1

Because we will be discussing three individuals with the last name Trevino, we will use their first names when it is necessary to refer to one of them individually.

2

The documents in the reporter's record are not labeled A through F but instead are bates-labeled "DEFENDANTS 000001" through "DEFENDANTS 000021." One page additionally has an exhibit sticker labeled "D," and another page is hand-labeled "exhibit B2."

3

We do not, however, consider Gonzales's arguments based on documents found nowhere in the record, including his assertion that two of the Trevino Parties requested and reviewed his personnel file from the Houston Police Department before making their respective social-media posts.

4

Gonzales filed this lawsuit on December 20, 2016.

5

*Bentley* , 94 S.W.3d at 596.

6

Due to the publication's length, we have abridged the first paragraph and omitted the fourth and fifth paragraphs.

7

Emphasis added.

8

Emphasis added.

1

Tex. Civ. Prac. & Rem. Code § 27.005 (West, Westlaw through 2017 1st C.S.); *see**Youngkin v. Hines* , 546 S.W.3d 675, 679 (Tex. 2018).

2

*See**In re Lipsky* , 460 S.W.3d 579, 590 (Tex. 2015).

3

*Id.*

4

*Id.* at 590-91.

5

*See**In re Lipsky* , 460 S.W.3d at 593 ; *Cruz v. Van Sickle* , 452 S.W.3d 503, 515 (Tex. App.-Dallas 2014, pet. denied).

6

Tex. Civ. Prac. & Rem. Code § 73.001 (West, Westlaw through 2017 1st C.S.).

7

*See**Hoang v. Nguyen* , 14-14-00942-CV, 2016 WL 4533417, at *2 (Tex. App.-Houston [14th Dist.] Aug. 30, 2016, no pet.) (mem. op.).

8

*Dallas Morning News, Inc. v. Tatum* , 554 S.W.3d 614, 624 (Tex. 2018).

9

*See id.*

10

*See id.*

11

*See**id.* at 638.

12

*See**id.* at 624.

13

*Greer v. Abraham* , 489 S.W.3d 440, 443 (Tex. 2016).

14

*See**id.* at 444.

15

*Bentley v. Bunton* , 94 S.W.3d 561, 591 (Tex. 2002).

16

*Id.*

17

*See id.* (footnotes and internal quotations omitted).

18

*Id.*

19

*Id.*

20

*Id.* at 596.

21

*Id.*

22

*Id.*

23

*Id.*

24

*Id.*

25

*Id.*

26

*Id.*

27

*See**Huckabee v. Time Warner Entm't Co.* , 19 S.W.3d 413, 420 (Tex. 2000).

28

*See**id.* at 420-22 (holding that courts do not consider the "clear and convincing evidence" burden of proof in determining whether a fact issue exists precluding summary judgment, even though this burden of proof would apply at trial).

29

Tex. Civ. Prac. & Rem. Code § 27.005(c) (West, Westlaw through 2017 1st C.S.); *see**Youngkin* , 546 S.W.3d at 679.

30

*Id.*

31

Emphasis added

32

*See**Tatum* , 554 S.W.3d at 629-31, 637-38 ; *In re Lipsky* , 460 S.W.3d at 593.

33

*See**Tatum* , 554 S.W.3d at 629-31, 637-38 ; *In re Lipsky* , 460 S.W.3d at 593.

34

*See**Gonzales v. Hearst Corp.* , 930 S.W.2d 275, 283 (Tex. App.-Houston [14th Dist.] 1996, no writ).

35

*Id.* at 282.

36

*Id.* at 282-83.

37

*Id.*

38

*See id.*

39

*See**Robert B. James, DDS, Inc. v. Elkins* , 553 S.W.3d 596, 612 (Tex. App.-San Antonio 2018, pet. filed) ; *Warner Bros. Entertainment, Inc. v. Jones* , 538 S.W.3d 781, 804-12 (Tex. App.-Austin 2017, pet. filed).

40

Tex. Civ. Prac. & Rem. Code § 27.005(c) (West, Westlaw through 2017 1st C.S.); *see**Youngkin* , 546 S.W.3d at 679.

41

*See**Huckabee* , 19 S.W.3d at 420.

42

*See**id.* at 420-22 (holding that courts do not consider the "clear and convincing evidence" burden of proof in determining whether a fact issue exists precluding summary judgment, even though this burden of proof would apply at trial).

43

*See**Neely v. Wilson* , 418 S.W.3d 52, 62 (Tex. 2013) (noting that statements not verifiable as false cannot form the basis of a defamation claim).

44

*See**Tatum* , 554 S.W.3d at 629-31.

45

*See**id.* at 631, 637.

46

*See**id.* at 637-38.

47

*See**In re Lipsky* , 460 S.W.3d at 593 ; *Tatum* , 554 S.W.3d at 629-31, 637-38.

48

*See*Tex. Civ. Prac. & Rem. Code Ann. § 27.006(b) (West, Westlaw through 2017 1st C.S.).

49

*See**Washington DC Party Shuttle, LLC v. IGuide Tours* , 406 S.W.3d 723, 744 (Tex. App.-Houston [14th Dist.] 2013, pet. denied) (en banc) (noting that an objection to a defect in the form of evidence is preserved only when the litigant objects and obtains a ruling from the trial court); *Kennedy Con., Inc. v. Forman* , 316 S.W.3d 129, 134 & n. 3 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (holding that party waived any objection to trial court receiving oral testimony at the summary-judgment hearing); *Tex. Dep't of Public Safety v. Monroe* , 983 S.W.2d 52, 56 (Tex. App.-Houston [14th Dist.] 1998, no pet.) (treating evidence as admitted even though record did not show that the evidence was admitted because the trial court and the parties treated the evidence as if it were admitted).

50

This document does not contain a reference to Gonzales.

51

*See**Robert B. James, DDS, Inc.* , 553 S.W.3d at 612 ; *Warner Bros. Entertainment, Inc.* , 538 S.W.3d at 804-12.

52

*See**In re Lipsky* , 460 S.W.3d at 593 ; *Tatum* , 554 S.W.3d at 629-31, 637-38.

53

*See**ante* at 856-57.

54

*Ante* at \856.

55

*See**ante* at 856-57.

56

*See**Tatum* , 554 S.W.3d at 627-28.

57

*See id.*

58

*See**Bentley* , 94 S.W.3d at 591.

59

*See**Robert B. James, DDS, Inc.* , 553 S.W.3d at 612 ; *Warner Bros. Entertainment, Inc.* , 538 S.W.3d at 804-12.

60

Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a) (West, Westlaw through 2017 1st C.S.).

61

Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a) ; *see**Sullivan v. Abraham* , 488 S.W.3d 294, 299 (Tex. 2016) (stating "[b]ased on the statute's language and punctuation, we conclude that the [Act] requires an award of 'reasonable attorney's fees' to the successful movant").

62

*See*Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a).

63

*See id.*