1

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-20-00023-CV 

________________

CHARLES VON SCHMIDT, Appellant

V.

JOHN WELLS III, Appellee

________________________________________________________________________

On Appeal from the 411th District Court

Polk County, Texas

Trial Cause No. CIV32745

________________________________________________________________________

MEMORANDUM OPINION

John Wells III sued Charles Von Schmidt for violations of the Texas Elections 

Code resulting from newspaper advertisements and mailers Von Schmidt had 

published and mailed to the public during a 2018 runoff election for a Polk County 

District Court Judge position in which Wells was the losing candidate. Following 

jury findings in favor of Wells, the trial court entered judgment based on those 

findings and awarded Wells damages and costs. In one issue, Von Schmidt 
2

challenges the legal and factual sufficiency of the evidence to support the jury’s 

verdict asking whether a direct campaign expenditure can constitute a campaign 

contribution in violation of the Texas Elections Code if the expenditure is made 

without the prior express consent or approval of the supported candidate. We will 

reverse and render.

I. Background

In 2018, Wells and Travis Kitchens were the Republican candidates in a

runoff election for a Polk County District Judge position. During the election, Von 

Schmidt, an individual voter, emailed the same questionnaire to both candidates 

seeking information regarding their qualifications, experience, and stances on 

certain issues. The email advised that the information would be used to inform voters 

but would not take a position advocating for one or the other. Kitchens answered the 

questions Von Schmidt submitted via return email, but Wells did not respond to the 

questionnaire.

After seeing Kitchens’s qualifications as provided in the email responses, Von 

Schmidt decided to support Kitchens but did not tell either candidate this. Instead, 

Von Schmidt took out two newspaper advertisements in local papers and sent out 

mailers conducting a side-by-side comparison of the candidates, which encouraged 

voters to support Kitchens. At the bottom of the advertisements and mailers, there 

was printed this statement, “Political ad paid for by Charles Von Schmidt and not 
3

coordinated with any campaign[.]” Wells lost the election and sued Von Schmidt 

under Texas Elections Code section 253.131 for alleged violations seeking damages, 

attorney’s fees, and costs.1 He specifically alleged that Von Schmidt exceeded the 

allowable contribution limit of $1,000 to a judicial campaign in a voting district of 

less than 250,000 inhabitants. Wells did not allege in either petition that Von 

Schmidt’s failure to timely report the expenditure constituted a violation of the 

elections code nor did the suit seek damages under section 254 of the Texas Elections 

Code. Von Schmidt answered and counterclaimed for his own attorney’s fees.

In a pretrial conference, both sides agreed that the primary issue for the jury 

to decide was whether there was consent or approval by the candidate being 

supported by the expenditure.

II. Trial Evidence

A. Exhibits

At trial, the evidence admitted included copies of the newspaper 

advertisements, mailers, emails between Von Schmidt and Kitchens, Von Schmidt’s 

Direct Campaign Expenditures Report, and a credit card statement. The credit card 

statement and report showed an expenditure for the advertisements and mailers of 

1 Von Schmidt moved to strike Wells’s Amended Petition as it was filed late 

per the docket control order, and Wells did not seek the trial court’s permission prior 

to filing. The trial court denied the motion to strike.
4

$3,279.32. The report also noted that the expenditure was made in opposition to 

Wells.

B. Testimony of Von Schmidt

Von Schmidt testified that he sent emails containing the same questions to 

Wells and Kitchens. Wells did not respond, but Kitchens did. According to Von 

Schmidt, when he started his email information-gathering campaign, he did not 

intend to support any candidate, instead he was “completely neutral.”

When asked whether Kitchens spoke up to oppose the emails, Von Schmidt 

explained he never told Kitchens in advance he planned to use the information 

obtained to create a newspaper ad or mailer. Von Schmidt told the jury, “Mr. 

Kitchens never sent me anything objecting. He had no idea what I was going to do 

or if I was going to do anything. So, no, sir, he did not object.” He testified that the 

emails did not mention the newspaper ad or mailers. Based on Kitchens’s responses 

and his own research into the qualifications of Wells, Von Schmidt prepared the 

mailer and sent it out to voters without Kitchens’s prior consent or approval. He 

explained that the “not coordinated with any campaign” phrase he included meant 

“[n]obody had any influence on what I put on here. Nobody told me this was okay. 

This was my own research. And I did what I wanted to do as a citizen.”

Von Schmidt further testified that through the research process, he learned 

information that convinced him Kitchens was more qualified, and he began 
5

supporting Kitchens even though that was not his original intent. His expenditure for

the newspaper ad and mailers included amounts of $1,093.60 for the Polk County 

Enterprise ad and $2,185.72 to Willy Walt for the mailers.

Von Schmidt filed a direct campaign expenditure report with the State and 

included the amounts totaling $3,279.32 for the newspaper ads and mailers. The 

timeliness of the filing of the report was not raised as an issue in the pleadings nor 

was it tried by consent by the parties. We do not address it in this opinion.

C. Testimony of Wells

Wells testified that in 2018, he participated in a runoff with Kitchens for the 

258th District Court. Wells explained that Von Schmidt also sent him the 

questionnaire, but he “ignored it[]” because “it didn’t pass the smell test.” Wells also 

told the jury he did not object to the questionnaire, “[h]e didn’t respond at all.” He 

testified that in his opinion, when Kitchens responded to Von Schmidt’s 

questionnaire, Kitchens gave his approval, “and e-mails show it.” Wells said that in 

the emails Kitchens “didn’t oppose it or disapprove of anything[,]” and the “e-mails 

show full cooperation.” However, Wells acknowledged the email said, “results of 

this poll will be published without any recommendation as it is intended solely as a 

voter education tool, not an endorsement.” When asked whether he had reason to 

dispute that Von Schmidt intended to prepare the ads without making a 

recommendation but changed his mind upon seeing the vast differences in their 
6

qualifications, Wells responded, “[o]nly my suspicions[]” and he agreed that was not 

evidence. Further, when asked whether he had any evidence Von Schmidt sought 

Kitchens’s approval or consent to spend the amount on the newspaper ads and 

mailers, Wells answered, “I didn’t see anything explicitly, no.” Wells then told the 

jury the emails showed Kitchens “was freely cooperating[]” with the publication of 

the materials. Wells also testified that he researched case law on direct campaign 

expenditures which said that mailers and advertising done without the consent or 

approval of the candidate was considered a “contribution,” in contrast to a 

“campaign contribution,” which did require the approval and consent of the 

expenditure, “which [Kitchens] did.” However, Wells did not offer any authority to 

support his opinion.

Wells stated he saw the newspaper advertisements and the mailers, which 

said, “Vote for Travis Kitchens[,]” in full support of Kitchens and in opposition to 

Wells. Wells also testified that after he saw them, he looked at the Elections Code 

and determined that when an individual supports one candidate and opposes another, 

that is a contribution or direct campaign contribution to the supported candidate. 

Wells “immediately recognized [the expenditures] as being in excess of the 

contribution limit.” He indicated this was a violation, even though it was only Von 

Schmidt’s personal endorsement. Wells agreed that Von Schmidt spent $3,279.32

on the political advertisement.
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D. Testimony of Kitchens

Kitchens, the candidate who opposed Wells, also testified. Kitchens testified 

that in 2018, he received an email from Von Schmidt during the election requesting 

information, and Von Schmidt sent the same email to Wells. He only communicated 

with Von Schmidt via email. Kitchens explained the substance of the emails sought 

information about his background and experience but indicated it was not an 

endorsement. Kitchens testified that he responded truthfully to the questions Von 

Schmidt asked. He had no idea what Von Schmidt would do with the information he 

provided, other than what he represented – which was to educate himself.

Kitchens testified that Von Schmidt gave no indication he would turn the 

information into an endorsement. He confirmed the email said, “The results of this 

poll will be published without any recommendation as it is intended solely as a voter 

education tool, not an endorsement.” Kitchens did not know what Von Schmidt 

meant by “publish” and what medium that would be in. He never asked Von Schmidt 

to publish newspaper ads or mailers to endorse him and did not give Von Schmidt 

instructions on what to do with the information he provided. Kitchens denied giving 

Von Schmidt any information regarding his campaign’s needs or plans. He further 

denied giving consent or approval or even seeing the published materials before they 

came out. 
8

Kitchens said he only learned of them when a friend contacted him and told 

him to look in the newspaper. Kitchens was surprised that someone ran the ad 

encouraging people to vote for him, because when he responded to the questionnaire, 

it indicated there would be no recommendation. Kitchens did not report Von 

Schmidt’s newspaper ads or mailers as a contribution because he did not have 

anything to do with it and had no idea how much Von Schmidt spent. Since it noted 

that Von Schmidt paid for it and it was not coordinated with any campaign, Kitchens 

was unaware of any costs he would have to report. Kitchens testified the only 

information he provided to Von Schmidt not available to the public pertained to his 

father’s Air Force service, but that information was not reflected on the printed 

materials.

Kitchens agreed the publications contained an endorsement for him but did 

not know if Von Schmidt should have reported that expenditure to him. Kitchens 

explained that if he had approved Von Schmidt’s advertising materials it would have 

said, “political ad paid for by Travis Kitchens.” He understood the phrase “not 

coordinated with any campaign” meant Von Schmidt did not ask for Kitchens’s 

permission to run the ad. Kitchens again testified Von Schmidt did not make the 

expenditures for the newspaper ads and mailers with his prior consent or approval. 
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III. Procedural History

A. Motions for Directed Verdict

Von Schmidt moved for a directed verdict. He argued there was no evidence 

the money he spent constituted campaign contributions because there was no 

evidence of Kitchens’s prior consent or approval. Instead, they constituted direct 

campaign expenditures made without the candidate’s prior consent or approval, 

which meant there was no violation. The trial court denied the motion.

Wells also moved for a directed verdict on the issue of liability. He argued 

that a direct campaign expenditure was a campaign expenditure in violation of Texas 

Elections Code section 253.131. Specifically, Wells contended he was “entitled to a 

directed verdict on liability because [Von Schmidt] made a campaign expenditure, 

not a direct campaign expenditure as defined in the code.” The trial court denied the 

plaintiff’s motion for directed verdict.

B. Jury Charge and Verdict

The jury charge contained the following question and instruction:

QUESTION NO. 1

Did Charles Von Schmidt make the expenditures for the 

newspaper ad and mailers he printed in support of Mr. Travis Kitchens 

during the 2018 runoff election for the 258th Judicial District Court of 

Polk, San Jacinto and Trinity Counties with the prior consent or 

approval of Travis Kitchens? 

Communication between a person and a candidate, officeholder, 

or candidate[’]s or officeholder[’]s agent is not evidence that the person 

obtained the candidate[’]s or officeholder[’s] consent or approval for a 
10

campaign expenditure made after the communication by the person on 

behalf of the candidate or officeholder unless the communication 

establishes that:

(1) the expenditure is incurred at the request or suggestion of the 

candidate, officeholder, or candidate[’]s or officeholder[’]s agent;

(2) the candidate, officeholder, or candidate[’]s or officeholder[’]s 

agent is materially involved in decisions regarding the creation, 

production, or distribution of a campaign communication related 

to the expenditure; or

(3) the candidate, officeholder, or candidate[’]s or officeholder[’]s 

agent shares information about the candidate[’]s or 

officeholder[’]s plans or needs that is:

(A) material to the creation, production, or distribution of a 

campaign communication related to the expenditure; and

(B) not available to the public.

Von Schmidt did not object to the court’s charge.

However, Wells objected to the charge, arguing this was a “campaign 

expenditure” as a matter of law under the Osterberg case. Wells contended the 

expenditure involved funds spent in support of a candidate and does not require 

consent, as opposed to a “direct campaign expenditure.” During the charge 

conference, Wells argued that under section 253 this was an expenditure in violation 

of the code, it exceeded $1,000, and because Von Schmidt never [timely] filed a 

report, it constituted a violation of section 253.131. Wells also moved for a directed 

verdict, contending this constituted a “campaign expenditure” rather than a “direct 

campaign expenditure.” He further argued that the language in the charge did not 

accurately reflect the law, because it assumed a “direct campaign expenditure” as 

opposed to a “campaign expenditure.” Wells did not specifically object to the charge 
11

instruction regarding communications and consent on the basis that it incorporated 

section 251.0015, which became effective only after the cause of action accrued.

Wells submitted an alternate proposed Question No. 1, which asked, “Do you 

find that Charles Von Schmidt individually, knowingly made or authorized one or

more campaign expenditures that were made either in opposition to John Wells or 

in support of Travis Kitchens?” The trial court overruled Wells’s objections and 

refused his proposed question and instructions.

The jury answered “yes” to Question No. 1, then determined that Von Schmidt 

made total expenditures of $3,279.32 for the newspaper ads and mailers.

C. Post-Verdict Motions

After trial, Von Schmidt filed a Motion for Judgment Notwithstanding the 

Verdict and Request to Set Aside Jury Findings[.]” In that motion, he argued: (1) the 

jury’s answer to the question regarding prior consent and approval was against the 

great weight and preponderance of the evidence; and (2) there was no evidence to 

support this finding. The trial court entered judgment in favor of Wells, awarding 

the following: (1) actual damages of $4,558.64; (2) attorney’s fees through trial of 

$12,500; (3) an additional $5,000 in attorney’s fees in the event of Von Schmidt’s 

unsuccessful appeal to this court; (4) $18,000 in the event of Von Schmidt’s 

unsuccessful appeal to the Texas Supreme Court, broken into various stages; (5) 

costs of $907.09; and (6) post-judgment interest of 5% daily.
12

IV. Standard of Review

Evidence is legally insufficient to support a jury finding when: (1) the record 

discloses a complete absence of evidence of a vital fact; (2) the court is barred by 

rules of law or of evidence from giving weight to the only evidence offered to prove 

a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere 

scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. 

Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 613 (Tex. 

2016) (citation omitted). As the sole judges of the credibility of the witnesses and 

the weight to give their testimony, the jurors may choose to believe one witness and 

disbelieve another. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). 

“Jurors may disregard even uncontradicted and unimpeached testimony from 

disinterested witnesses.” Id. at 820. But “they are not free to believe testimony that 

is conclusively negated by undisputed facts.” Id. In our appellate review, we “credit 

favorable evidence if reasonable jurors could, and disregard contrary evidence 

unless reasonable jurors could not.” Id. at 827. “The final test for legal sufficiency 

must always be whether the evidence at trial would enable reasonable and fairminded people to reach the verdict under review.” Id.

When challenging the factual sufficiency of the evidence supporting an 

adverse finding on which the appellant did not have the burden of proof at trial, the 

appellant must demonstrate that there is insufficient evidence to support the adverse 
13

finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Am. Interstate Ins. 

Co. v. Hinson, 172 S.W.3d 108, 120 (Tex. App.—Beaumont 2005, pet. denied). 

When reviewing a factual sufficiency challenge, we consider and weigh all the 

evidence in support of and contrary to the jury’s finding. Mar. Overseas Corp. v. 

Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). We only set aside a finding if it “is so 

contrary to the overwhelming weight of the evidence as to be clearly wrong and 

unjust.” Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985).

Before measuring the sufficiency of the evidence, we first identify the 

standard against which the evidence is to be measured. St. Joseph Hosp. v. Wolff, 94 

S.W.3d 513, 530 (Tex. 2002). “[I]t is the court’s charge, not some other unidentified 

law, that measures the sufficiency of the evidence when the opposing party fails to 

object to the charge.” Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (citations 

omitted). Where the trial court submits an erroneous definition or instruction over a 

proper objection, we measure the legal sufficiency of the evidence supporting the 

jury’s finding against the charge that should have been given. See St. Joseph Hosp., 

94 S.W.3d at 530.

The trial court must submit to the jury the controlling questions, instructions, 

and definitions raised by the pleadings and supported by the evidence. See Triplex 

Commc’ns v. Riley, 900 S.W.2d 716, 718 (Tex. 1995); see also Tex. R. Civ. P. 278.

A trial court has broad discretion to fashion the charge, so long as it is legally correct. 
14

Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999). We review a 

complaint regarding submission of jury questions for an abuse of discretion. See 

Brumley v. McDuff, 616 S.W.3d 826, 831 (Tex. 2021).

V. Analysis

A. Texas Election Code

We begin our analysis with the statutory definitions necessary to the 

resolution of this appeal. A “campaign expenditure” is “an expenditure made by any 

person in connection with a campaign for an elective office or on a measure. Whether 

an expenditure is made before, during, or after an election does not affect its status 

as a campaign expenditure.” Tex. Elec. Code Ann. § 251.001(7). At the time this 

cause of action accrued, a “direct campaign expenditure” was defined as “a 

campaign expenditure that does not constitute a campaign contribution by the person 

making the expenditure.”2 Id. 251.001(8). See Act of June 19, 1987, 70th Leg., R.S., 

2 This section was amended effective September 1, 2019. See Act of June 19, 

1987, 70th Leg., R.S., ch. 899 § 1, 1987 Tex. Gen. Laws 2995, 2997 amended by

Act of June 14, 2019, 86th Leg., R.S., ch. 1127 § 1 2019 Tex. Gen. Laws 3186, 3186.

The provision currently reads, 

a campaign expenditure that does not constitute a campaign 

contribution by the person making the expenditure. A campaign 

expenditure does not constitute a contribution by the person making the 

expenditure to a candidate or officeholder if the expenditure is made 

without the prior consent or approval of the candidate or officeholder 

on whose behalf the expenditure is made. A campaign expenditure 

made in connection with a measure does not constitute a contribution 

by the person making the expenditure if it is not made as a political 
15

ch. 899 § 1, 1987 Tex. Gen. Laws 2995, 2997 amended by Act of June 14, 2019, 

86th Leg., R.S., ch. 1127 § 1 2019 Tex. Gen. Laws 3186, 3187. Finally, a “campaign 

contribution” is defined as 

a contribution to a candidate or political committee that is offered or 

given with the intent that it be used in connection with a campaign for 

elective office or on a measure. Whether a contribution is made before, 

during, or after an election does not affect its status as a campaign 

contribution.

Tex. Elec. Code Ann. § 251.001(3). Of further note, when this cause of action 

accrued, the Texas Administrative Code defined “a direct campaign expenditure” as 

follows:

(5) Direct campaign expenditure--A campaign expenditure that does 

not constitute a contribution by the person making the expenditure. A 

campaign expenditure is not a contribution from the person making the 

expenditure if:

(A) it is made without the prior consent or approval of the 

candidate or officeholder on whose behalf the expenditure was 

made[.]

1 Tex. Admin. Code § 20.1(5) (2013) (Tex. Ethics Comm’n, Reporting Political 

Contributions and Expenditures), amended by 45 Tex. Reg. 2155 (2020). The Texas 

Supreme Court has likewise explained that “a direct campaign expenditure” is one 

that is made without the candidate’s consent or approval. See Osterberg, 12 S.W.3d 

at 36 n.2) (citations omitted) (explaining that direct campaign expenditure is made 

contribution to a political committee supporting or opposing the 

measure.

Tex. Elec. Code Ann. § 251.001(8).
16

without the candidate’s prior consent or approval). Accordingly, the critical 

distinction between a campaign contribution and a direct campaign expenditure is 

the candidate’s consent or approval.

Section 253.131 provides a private cause of action for violations of Chapter 

253. “A person who knowingly makes or accepts a campaign contribution or makes 

a campaign expenditure in violation of this chapter is liable for damages as provided 

by this section.” Tex. Elec. Code Ann. § 253.131(a) (emphasis added). This is the 

section under which Wells sued Von Schmidt. Of note, Chapter 253 does not contain 

provisions limiting the amounts of direct campaign expenditures.3

However, Chapter 253 does limit the amount of contributions a judicial 

candidate may accept. When the cause of action accrued, section 253.155 provided: 

(a) Subject to Section 253.1621, a judicial candidate or officeholder 

may not, except as provided in Subsection (c), knowingly accept 

political contributions from a person that, in the aggregate, exceed the 

3 In 2011, prior sections 253.061through 253.063 contained within Chapter 

253 which required an individual to report direct campaign expenditures exceeding 

$100 were repealed. See Act of June 1, 1987, 70th Leg., R.S., ch. 899, § 1 1987 Tex. 

Gen. Laws 2995, 3008–09 repealed by Act of June 17, 2011, 82nd Leg., R.S., ch. 

1009 § 6(2) 2011 Tex. Gen. Laws 2554, 2556. Sections governing reporting 

requirements for direct campaign expenditures are now codified in Chapter 254. See

Tex. Elec. Code Ann. § 254.261(a) (requiring reporting of direct campaign 

expenditures exceeding $100). Section 254.231 likewise affords candidates a cause 

of action for Chapter 254’s reporting violations. See Tex. Elec. Code Ann. §

254.231. Wells did not plead a cause of action pursuant to section 254.231 nor did 

he allege reporting violations in his petitions, and Von Schmidt pointed this out 

through his repeated objections during the trial. 
17

limits prescribed by Subsection (b) in connection with each election in 

which the person is involved.

(b) The contribution limits are:

(1) for a statewide judicial office, $5,000; or

(2) for any other judicial office:

(A) $1,000, if the population of the judicial district is less than 

250,000[.]

See Act of June 16, 1995, 74th Leg., R.S., ch. 763, § 1, sec. 253.155, 1995 Tex. Gen. 

Laws 3956, 3958 amended by Act of June 2, 2019, 86th Leg., R.S., ch. 384 § 4 2019 

Tex. Gen. Laws 699, 700.

4 In both his Original Petition and First Amended Original 

Petition, Wells alleged that the violation giving rise to the cause of action pursuant 

to section 253.131 was the money spent on the advertisement and mailers exceeding 

$1,000, “which is the maximum [contribution] allowed for the judicial race because 

the district has a population of less than 250,000.” The plain language of the statute 

putsthe onus on the candidate, rather than the donor, to refuse to accept contributions 

4 This section was amended effective June 2, 2019, and the provision currently 

states:

(a) A judicial candidate or officeholder may not knowingly accept 

political contributions from a person that, in the aggregate, exceed the 

contribution limits prescribed by Subsection (b) in connection with 

each election in which the judicial candidate’s name appears on the 

ballot.

(b) The contribution limits under this section are:

(1) for a statewide judicial office, $5,000; or

(2) for any other judicial office:

(A) $1,000, if the population of the judicial district is less than 

250,000[.]

Tex. Elec. Code Ann. § 253.155(a), (b)(1)-(2)(A).
18

exceeding $1,000. To recover under the chapter 253 cause of action pleaded, Wells 

still must establish the money spent by Von Schmidt was a political contribution and 

not a direct campaign expenditure. Von Schmidt’s expenditures could only be 

characterized as a political contribution if the evidence was sufficient to show the 

expenditures were made with the candidate’s approval or consent.

B. The Charge: Measure of Sufficiency

At trial, Wells argued that Von Schmidt’s expenditures were not a “direct 

campaign expenditure,” instead it was a “campaign expenditure” that constituted a 

“campaign contribution.” Wells argued the issue of consent should not come up at 

all, and under Osterberg v. Peca, the only issue was whether the expenditures were 

made in support of a candidate and if so, the amount of the expenditures. However,

as explained above, critical to determining whether expenditures constitute a 

campaign contribution or a direct campaign expenditure and thus a violation of 

Chapter 253, is the candidate’s “consent or approval.” See Osterberg, 12 S.W.3d at

36 n.2; Tex. Ethics Comm’n Op. No. 331 (1996). Further, during pretrial, the parties 

agreed that the main issue that would be submitted to the jury was the issue of 

consent or approval of candidate Kitchens.

In the absence of a valid objection, we are to measure the sufficiency of the 

evidence against the charge submitted to the jury. See St. Joseph Hosp., 94 S.W.3d 

at 530. Wells’s repeated objections during the charge conference misstated the law
19

applicable to the case, and the alternate question he proposed did not accurately 

reflect the parties’ dispute as pleaded or as the evidence suggested at trial. On appeal, 

Wells further counters the court’s instruction regarding what communications could 

constitute evidence of consent was improper, arguing the statutory language it 

tracked contained in Texas Election Code section 251.0015 was not in effect at the 

time. However, Wells failed to separately object to this instruction during the charge 

conference on this basis. See Tex. R. Civ. P. 274 (“A party objecting to a charge 

must point out distinctly the objectionable matter and the grounds of the objection. 

. . . No objection to one part of the charge may be adopted and applied to any other 

part of the charge[.]”).

Accordingly, we will measure the sufficiency of the evidence in this case 

against the charge the trial court submitted to the jury. See St. Joseph Hosp., 94 

S.W.3d at 530.

C. Legal Sufficiency

We now turn to whether the evidence was legally sufficient to support the 

jury’s finding that Von Schmidt made the expenditures for the newspaper ad and 

mailers in support of Kitchens with the prior consent or approval of Travis Kitchens.

Evidence is legally insufficient to support a jury finding when: (1) the record 

discloses a complete absence of evidence of a vital fact; (2) the court is barred by 

rules of law or of evidence from giving weight to the only evidence offered to prove 
20

a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere 

scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. 

Crosstex, 505 S.W.3d at 613. To prevail on a legal insufficiency complaint on which 

he did not have the burden of proof at trial, Von Schmidt must show no evidence 

supports the finding. Croucher, 660 S.W.2d at 58; Christus St. Mary Hosp. v. 

O’Banion, 227 S.W.3d 868, 873 (Tex. App.—Beaumont 2007, pet. denied).

The emails between Von Schmidt and Kitchens established that Von Schmidt 

never told him that he was endorsing a candidate but rather “would be published 

without any recommendation as it is intended solely as a voter education tool and 

not an endorsement.” Both Von Schmidt and Kitchens testified that Von Schmidt 

never asked for Kitchens’s approval. Kitchens testified he had no knowledge of the 

newspaper ad or mailers until after they were published and was shocked by Von 

Schmidt’s endorsement. Von Schmidt testified that he had no plans to endorse either 

candidate when he sent the emails to them. It was only after Kitchens answered the 

questions about his experience and Von Schmidt researched Wells’s experience that 

Von Schmidt decided to endorse Kitchens, but Von Schmidt never advised Kitchens 

of this. 

Likewise, when asked whether he had any reason to dispute that Von Schmidt

was going to prepare the materials without making a recommendation, but upon 

seeing the differences in their qualifications, decided to take out the ads, Wells 
21

responded, “Only my suspicions.” Wells then agreed his suspicions were not 

evidence. When asked if there was any evidence besides the emails where Von 

Schmidt advised he would publish the results of the poll without any 

recommendations, Wells testified he “didn’t see anything explicitly[.]”

While under the applicable standard of review for legal sufficiency, “‘we 

credit evidence that supports the verdict if [a reasonable factfinder] could have done 

so and disregard contrary evidence unless [a reasonable factfinder] could not have 

done so.’” Dall. Nat’l Ins. Co. v. De La Cruz, 470 S.W.3d 56, 58 (Tex. 2015) 

(citations omitted). Using this standard, no evidence at trial established that Von 

Schmidt had the prior approval or consent of Kitchens when he printed the ad or 

mailers. See Crosstex, 505 S.W.3d at 613; Croucher, 660 S.W.2d at 58. Rather, the 

evidence conclusively established the opposite. See Crosstex, 505 S.W.3d at 613. 

Wells testified that by simply responding to Von Schmidt’s email, which expressly 

stated the results of the polls would not be used to provide an endorsement, Kitchens 

fully cooperated. We conclude the evidence was legally insufficient to establish that 

Von Schmidt made the expenditures for the political ads with the consent or approval 

of Kitchens. See id. Thus, there is no evidence that the expenditures made by Von 

Schmidt constituted a campaign contribution in violation of Chapter 253 of the 

Texas Elections Code. We sustain Von Schmidt’s sole issue. Having determined the 
22

evidence was legally insufficient to support the jury’s verdict, we need not address 

factual sufficiency as it would afford him no greater relief. See Tex. R. App. P. 47.1.

VI. Conclusion

Because the evidence was legally insufficient to support a verdict that Von 

Schmidt acted with the candidate’s consent or approval, we reverse the trial court’s 

judgment and render judgment that Wells take nothing on his claims. We remand 

the case to the trial court to consider an award of attorney’s fees reasonably incurred 

by Von Schmidt. See Tex. Elec. Code Ann. § 253.131(e) (providing that reasonable 

incurred attorney’s fees may be recovered if judgment is rendered in defendant’s 

favor).

REVERSED AND REMANDED.

 ________________________________

 CHARLES KREGER 

 Justice

 

Submitted on February 1, 2021

Opinion Delivered January 13, 2022

Before Kreger, Horton and Johnson, JJ.