IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-20039

 

JASON AGUILLARD; ET AL.,

Plaintiffs,

JASON AGUILLARD; O.L. HARRISON; WILLIAM A.

HARRISON; SANDRA HARRISON; GLORIA HAMILTON,

Plaintiffs-Appellees,

v.

JOSEPH K. MCGOWEN; ET AL.,

Defendants,

JOSEPH K. MCGOWEN; HARRIS COUNTY, TEXAS,

Defendants-Appellants.

*****************

O. L. HARRISON, Surviving Parent of Susan Harrison

White, Deceased; WILLIAM A. HARRISON, Surviving

Parent of Susan Harrison White, Deceased; GLORIA

HAMILTON, Individually and as next friend of Jason

Aguillard; SANDRA HARRISON, Individually and on 

behalf of Estate of Susan Harrison White, Deceased,

Plaintiffs-Appellees,

v.

JOSEPH K. MCGOWEN; ET AL.,

Defendants,

JOSEPH K. MCGOWEN; HARRIS COUNTY, TEXAS,

Defendants-Appellants.

_______________________________

Appeals from the United States District Court

for the Southern District of Texas

_______________________________

March 15, 2000
2

Before BARKSDALE, BENAVIDES and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellants Joseph K. McGowen (“McGowen”) and Harris County,

Texas (“the County”) appeal from a jury verdict holding them

liable for the wrongful death of Susan Harrison White (“White”)

pursuant to 42 U.S.C. § 1983. The district court, giving

preclusive effect to McGowen’s Texas state criminal conviction

for murder, forbade McGowen to present evidence on the issue of

excessive force. Because the state court of appeals reversed

McGowen’s criminal conviction on appeal, we vacate and remand for

a new trial on the merits. We further determine, pursuant to our

sufficiency of the evidence analysis, that insufficient evidence

supports the County’s liability, and we therefore reverse and

dismiss the County from the suit. Finally, we hold that White’s

sisters, appellees Sandra Harrison (“Harrison”) and Gloria

Hamilton (“Hamilton”) lack standing in their individual

capacities, and we thus dismiss them from the suit as individual

plaintiffs.

I. Factual and Procedural Background

McGowen began working as a deputy for the Harris County

Sheriff’s Department on October 4, 1990. Sometime thereafter,

the Sheriff’s Department assigned him to patrol the Olde Oakes

subdivision, where White, and her son, appellee Jason Aguillard

(“Aguillard”), lived. Though the details are unclear, McGowen

engaged in conduct during his patrol that White characterized as

sexual harassment.
3

To assess her options in dealing with McGowen, White and a

friend, Ray Valentine (“Valentine”), had dinner with another

Harris County Deputy Sheriff, Captain C.J. Harper (“Harper”). 

Harper claims that he advised her that she could complain to the

Sheriff’s office; if that yielded no results, she could resort to

the Internal Affairs Division, the District Attorney or the FBI. 

White did not register any formal complaint about McGowen.

Several months later, on August 22, 1992, White and

Valentine were having dinner at a restaurant when a friend of

Aguillard’s approached White and told her that McGowen was

arresting Aguillard. White and Valentine immediately went to the

site of the arrest and attempted to dissuade McGowen from

arresting Aguillard. When their pleas fell on deaf ears, White

yelled, “I’m going to get you, [McGowen,] you son of a bitch.”

McGowen had arrested Aguillard for possession of a stolen

credit card and selling a stolen gun to an undercover officer. 

Instrumental in Aguillard’s capture was Michael Schaeffer

(“Schaeffer”), a childhood friend of Aguillard’s, who apparently

agreed to inform on Aguillard after McGowen pulled him over

multiple times for traffic violations. McGowen had also arrested

Schaeffer, but released him immediately.

Knowing of Schaeffer’s arrest and prompt release, White

called both Schaeffer’s aunt and mother, inquiring about his

whereabouts. White told Schaeffer’s aunt, “I think Michael is an

informant and in Houston an informant is a dead person.” White

repeated a similar statement to Schaeffer’s mother. Though
4

neither Schaeffer nor his mother took these statements seriously,

Schaeffer reported them to McGowen, who replied that White was a

“threat” and “needed” to go to jail.

Embellishing White’s statements to the point of fabrication,

McGowen obtained a warrant to arrest White for felony

retaliation. McGowen set out to execute this warrant on August

24, 1992, at around midnight. McGowen and two other deputies

woke White, who refused to open her front door. While McGowen

sought permission to enter the house forcibly, White called 911. 

Having obtained the necessary approval, McGowen and the other

deputies broke down the back door. McGowen ran into White’s

bedroom, where, he claims, she was sitting on the bed, pointing a

gun at him. McGowen shot her three times, killing her.

McGowen was tried and convicted of murder; the trial court

sentenced him to 15 years imprisonment. 

Aguillard, White’s parents, Hamilton and Harrison

(individually and as next friend of Aguillard and White’s estate

respectively) brought a wrongful death action on March 9, 1993. 

During the trial, held from September 11-25, 1996, the district

court sua sponte raised the issue of collateral estoppel,

concluding that McGowen’s criminal conviction was a final

judgment which precluded McGowen from relitigating the issue of

excessive force. The jury returned a verdict in favor of

Aguillard in an amount exceeding $4 million.

McGowen and the County timely filed their appeal.
5

II. Standards of Review

We review a district court’s decision to apply collateral

estoppel for an abuse of discretion. See Winters v. Diamond

Shamrock Chem. Co., 149 F.3d 387, 391 (5th Cir. 1998).

We apply de novo review to a district court’s denial of a

motion for judgment as a matter of law. See Rutherford v. Harris

County, Texas, 197 F.3d 173, 178 (5th Cir. 1999). “In ruling on

a rule 50 motion based upon sufficiency of the evidence, we

‘consider all of the evidence–not just that evidence which

supports the non-mover’s case–but in the light and with all

reasonable inferences most favorable to the party opposed to the

motion.’” Information Communication Corp. v. Unisys Corp., 181

F.3d 629, 633 (5th Cir. 1999) (quoting Boeing Co. v. Shipman, 411

F.2d 365, 374 (5th Cir. 1969) (en banc)). The district court

properly grants a Rule 50 motion for judgment as a matter of law

only where the facts and inferences indicate a particular outcome

so strenuously that reasonable minds could not disagree. See

Rutherford, 197 F.3d at 179. 

III. Collateral Estoppel

McGowen and the County argue that, because the 14th Court of

Appeals, the state court reviewing McGowen’s murder conviction,

reversed it, the conviction is not a “final judgment” sufficient

to exert a preclusive effect. Therefore, they claim, the

district court denied McGowen a fair trial by barring his

defense, and they urge us therefore to vacate and remand.

Aguillard retorts that the 14th Court of Appeals reversed
 

1

The 14th Court of Appeals twice reversed McGowen’s conviction. The

first reversal occurred on April 10, 1997. The Texas Court of Criminal

Appeals, however, vacated that judgment on October 28, 1998 and remanded to

the 14th Court of Appeals, which again reversed McGowen’s conviction on

February 3, 2000.

It is anticipated that the State of Texas will seek discretionary review

of the 14th Court of Appeals’s decision with the Texas Court of Criminal

Appeals. 

 

2

Even if the State were now to appeal the February 3, 2000 reversal of

McGowen’s conviction, during the pendency of the appeal, the reversed

conviction cannot exert preclusive effect. See Lulirama, 128 F.3d at 876 n.2

(“The fact that an appeal is pending in a higher appellate court does not

restore the preclusive effects of the reversed judgment.” (quoting 18 Charles

Alan Wright, et al., Federal Practice and Procedure § 4432, 302 (1981)).

For this reason, on February 4, 1998, the date on which the panel heard

oral argument in this matter, McGowen’s conviction exerted no preclusive

effect–despite the pendency of its appeal before the Texas Court of Criminal

Appeals–because the 14th Court of Appeals had already reversed it.

6

McGowen’s conviction for procedural reasons and specifically

found that the evidence supported the verdict. A verdict

reversed on a “technicality” for which sufficient evidence

exists, Aguillard argues, should retain its preclusive impact.

We do not agree with Aguillard’s argument that the verdict

in the criminal case retains its preclusive effect. The 14th

Court of Appeals undeniably reversed McGowen’s conviction,1 which

unquestionably constituted the final judgment on which the lower

court based its determination of collateral estoppel. A

conviction overturned on appeal cannot constitute a final

judgment for purposes of collateral estoppel. See J.J. Gregory

Gourmet Servs., Inc. v. Antone’s Import Co., 927 S.W.2d 31, 34

(Tex. App.–Houston 1995, no writ) (“[W]hen the appellate court

reverses [a] judgment, the finality necessary for claim or issue

preclusion is eliminated.”); Lulirama Ltd., Inc. v. Axcess

Broadcast Servs., Inc., 128 F.3d 872, 876 n.2 (5th Cir. 1997).2 

Aguillard’s argument that a reversed conviction still exerts
7

a preclusive effect is simply incorrect, based, as it is, on a

misreading of Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6

(Tex. 1986), which holds only that a judgment retains its

preclusive impact while on appeal. See id. (“[W]e . . . hold

that a judgment is final for purposes of issue and claim

preclusion ‘despite the taking of an appeal unless what is called

an appeal actually consists of a trial de novo.’” (quoting

Restatement (Second) of Judgments § 13 cmt. f)). Scurlock does

not involve a situation in which the judgment given preclusive

effect has been reversed on appeal, as does the present

circumstance. Indeed, Scurlock even states that “[a] judgment in

a second case based on the preclusive effects of a prior judgment

should not stand if the judgment is reversed.” Id. We thus hold

that Aguillard’s arguments in favor of granting preclusive effect

to McGowen’s criminal conviction for murder are wholly without

merit. 

Because the practical import of the lower court’s

application of collateral estoppel was to deny McGowen the

opportunity to present a defense to the complaint, we see no

viable course of action but to vacate and remand for a new trial

on the merits. Without a valid determination of the excessive

force claim, neither the judgment against McGowen nor the County

can be sustained.

IV. Sufficiency of the Evidence

The County argues that the evidence is not sufficient to

support a finding that it was deliberately indifferent to White’s
8

right to be free from excessive force when it hired McGowen

without discovering confidential information located in his file

with the Houston Police Department, or without following up on

the leads suggested by his polygraph test. 

Aguillard naturally insists that the evidence is to the

contrary.

Board of County Comm’rs of Bryan County, Oklahoma v. Brown,

520 U.S. 397 (1997) governs our inquiry into the sufficiency of

the evidence. “Only where adequate scrutiny of an applicant’s

background would lead a reasonable policymaker to conclude that

the plainly obvious consequence of the [hiring] decision . . .

would be the deprivation of a third party’s federally protected

right can the official’s failure to adequately scrutinize the

applicant’s background constitute ‘deliberate indifference.’” Id.

at 411. Any finding of culpability “must depend on a finding

that this officer was likely to inflict the particular injury

suffered by the plaintiff. The connection between the background

of the particular applicant and the specific constitutional

violation alleged must be strong.” Id. at 412.

The specific facts involved in Bryan County are extremely

instructive. There, Reserve Deputy Stacy Burns (“Burns”) stood

convicted of using excessive force when he wrested a woman from a

car, badly damaging her knees in the process. Burns, who was the

great-nephew of Sheriff Moore, Bryan County’s Sheriff and policymaker, had a criminal record that included arrests for driving

while intoxicated, driving with a suspended license, resisting
9

arrest, public drunkenness, and a conviction for assault and

battery. Looking at this record, the Supreme Court held that

Sheriff Moore’s failure to examine Burns’s criminal record did

not “reflect[] a conscious disregard for a high risk that Burns

would use excessive force in violation of respondent’s federally

protected right.” Id. at 415-16. 

Here, the record is far less suggestive of McGowen

committing homicide than the record in Bryan County was of Burns

committing battery. The record shows that McGowen threatened the

mother of a juvenile with arrest, that he meddled in this

mother’s supervision of the child while he was off duty, and that

the mother ultimately hired an attorney and threatened to obtain

a restraining order against him. Colleagues at the Houston

Police Department reported that McGowen wanted to “ride where the

women were,” and a female colleague stated that she did not want

to ride with him under any circumstances. The record also

discloses a report that in March 1990, McGowen assaulted and

pistol-whipped a teenage boy who was driving his car around

McGowen’s apartment complex. Significantly, McGowen was neither

arrested for nor convicted of the alleged assault. But while all

of this may indicate that McGowen was “an extremely poor

candidate” for the County’s police force, id. at 414, the record

shows not one shred of solid evidence foreshadowing McGowen’s

tragic killing of White. McGowen had never been formally

disciplined, and his informal discipline record included only the

infractions of using the police radio for broadcasting personal
10

messages and refusing to convey information to one party in a

vehicular accident. McGowen had never wrongfully shot anyone

before, nor did his record reveal him to be likely to use

excessive force in general or possess a trigger-happy nature in

particular. Certainly, the evidence of deliberate indifference

in this case falls short of the quantum and quality of evidence

presented in Bryan County, which the Supreme Court determined to

be insufficient. In short, even when viewing the evidence, as we

must, in the light most favorable to Aguillard, the record is

bereft of evidence sufficient to impose liability on the County

for wrongfully hiring McGowen. While the County may have been

negligent in its employment decision, the magnitude of its error

does not reach constitutional cognizance. We therefore hold that

the district court erred in denying the County’s Rule 50 motion

for judgment as a matter of law, and we dismiss the County from

this case.

V. Remaining Issues

Because our rulings on the collateral estoppel and Rule 50

issues constrain us to vacate and remand and dismiss the County,

we need not address all of the remaining issues the parties

raise, save with respect to the following: the question of

whether White’s sisters have standing in their individual

capacities to bring a wrongful death suit.

McGowen and the County assert that White’s sisters, Harrison

and Hamilton, lack standing to bring this suit. Harrison and

Hamilton respond by asking this court to acknowledge their right
11

to bring this suit.

Pursuant to 42 U.S.C. § 1988, we must look to the state

wrongful death statute to determine who has standing to bring a

wrongful death claim under § 1983. The Texas Wrongful Death and

Survival Statutes, Tex. Civ. Prac. & Rem. Code §§ 71.004 and

71.021, set forth the parties who can bring suit. The Estate of

Susan White (“the Estate”) has standing pursuant to the Survival

Statute, § 71.021, and Harrison, as White’s heir and the legal

representative of the Estate, has standing to prosecute the

action. See Garcia v. Caremark, Inc., 921 S.W.2d 417, 421 (Tex.

App.–Corpus Christi 1996, reh’g overruled); Handley v. City of

Seagoville, Texas, 798 F. Supp. 1267, 1270 (N.D. Tex. 1992). 

Moreover, Hamilton, as an heir and interested party in the suit,

may act as next friend for Aguillard. See International & G.N.

Ry. Co. v. Kuehn, 8 S.W. 484, 485-86 (Tex. 1888). 

Thus, the controversy focuses on whether Harrison and

Hamilton have standing in their individual capacities. Neither

Harrison nor Hamilton can cite any law from this Circuit

supporting their bid for standing. As siblings are, based on the

plain language of the statutes, plainly not within the scope of

the Texas Wrongful Death and Survivor Statutes, we decline to

permit Harrison and Hamilton to bring this action in their

individual capacities. Upon retrial, then, Harrison and Hamilton

must be dismissed as individual parties. 

VI. Conclusion

We hold that a conviction reversed on appeal cannot function
12

as a final judgment supporting the application of collateral

estoppel. We therefore vacate and remand for a full trial on the

merits.

We further hold that the evidence is insufficient to impose

liability upon the County, and that the district court erred in

refusing the County’s motion for judgment as a matter of law. We

therefore reverse and dismiss the County from the suit.

Finally, we hold that Harrison and Hamilton lack standing in

their individual capacities. The district court erred in denying

the County’s motion to dismiss them as individual parties, and we

therefore dismiss them from the suit in their individual

capacities.

VACATED, REVERSED and REMANDED.