                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00203-CV

RON BRANEFF,
                                                             Appellant
v.

ANN TROUTMEN,
                                                             Appellee


                           From the 82nd District Court
                             Robertson County, Texas
                          Trial Court No. 06-02-17447-CV


                          CONCURRING OPINION


       If I were writing on a clean slate, I would affirm the trial court’s determination.

Specifically, I would find that probable cause existed for Troutman to report the

evidence in her possession to the appropriate authorities. This is made more clear when

you consider that Troutman is an attorney and is, presumably, more likely to be aware

that forgery is not limited to signing someone else’s signature, but can also be the use of

a document, passing, by a person who knows the signature is not authentic or uses a

document for an unauthorized purpose. See TEX. PENAL CODE ANN. § 32.21 (Vernon

Pamp. 2010).
       But I do not write on a clean slate. Based on my review of the case authority, I

believe the elements of probable cause and malice have become largely redundant in a

case with facts such as those before us. If we cannot clearly separate the element of

probable cause from malice, in a case like this where there seems to be an abundance of

evidence of ill will between the parties, it will be impossible to not have some evidence

of the lack of probable cause; but it is the same as the evidence of malice.

       I would separate these elements by making the lack of probable cause element be

an objective test: Would a reasonable person, essentially a magistrate, who knew the

facts known to the complainant, have probable cause to believe that a crime had been

committed? If we apply the same test in civil cases as we do in criminal cases to the

question of probable cause, the actor’s subjective motives are not considered in

determining probable cause. See Whren v. United States, 517 U.S. 806, 813, 116 S. Ct.

1769, 135 L. Ed. 2d 89 (1996). After all, in the civil context of malicious prosecution,

there is a separate element to consider that; the malice element.

       Thus, I would join the three justice on the Texas Supreme Court who have stated

       A re-examination of our holding that lack of probable cause will support
       an inference of malice without further examination of the evidence may
       well be in order.

Kroger v. Suberu, 216 S.W.3d 788, 798 (Tex. 2006) (Justice Johnson dissenting, joined by

Justices Medina and Wainwright).

       This case presents the inverse of Kroger’s inference of malice. It is the ability to

show malice from which an inference of the lack of probable cause is being drawn. As

indicated, I would clearly separate the two with objective and subjective analysis,

Braneff v. Troutman                                                                  Page 2
respectively. Without such a separation, we risk keeping a person who has a history of

a bad relationship with another person from reporting an actual crime due to the fear of

being sued for malicious prosecution if the person is acquitted – as distinguished from

being innocent. See Kroger at 792 fn 2. But also, as indicated, I do not write on a clean

slate and, accordingly, concur in the Court’s opinion and judgment.



                                         TOM GRAY
                                         Chief Justice

Concurring opinion delivered and filed November 17, 2010




Braneff v. Troutman                                                                Page 3
