                       In the
                  Court of Appeals
          Second Appellate District of Texas
                   at Fort Worth
                ___________________________
                     No. 02-18-00275-CV
                ___________________________

RICHARD A. WEBER, ERIC ELAM, AND JOE PALMER, Appellants

                               V.

                FRANK FERNANDEZ, Appellee



              On Appeal from the 48th District Court
                     Tarrant County, Texas
                 Trial Court No. 048-299878-18


               Before Gabriel, Pittman, and Bassel, JJ.
               Memorandum Opinion by Justice Bassel
 Dissenting and Concurring Memorandum Opinion by Justice Gabriel
                          MEMORANDUM OPINION

                                 I. INTRODUCTION

      This interlocutory appeal arises from the trial court’s order denying Appellants

Richard A. Weber’s, Eric Elam’s, and Joe Palmer’s Texas Citizens Participation Act

(TCPA) motion to dismiss.

      Many understandably find the tenor of today’s political discussion unpleasant.

But the TCPA protects those who speak on matters of public concern. See Tex. Civ.

Prac. & Rem. Code Ann. §§ 27.001–.011. Undoubtedly, the statements in this case—

directed toward a public official, Appellee Frank Fernandez, who had recently pled

guilty to a criminal offense, resigned from public office, and continued to participate

in political activities—fall within the ambit of the TCPA. The legislature has made its

decision that the subjects of legal actions falling within the ambit of the TCPA may

immediately put those bringing the action to the task of establishing “by clear and

specific evidence a prima facie case for each essential element of the claim in

question.” Id. § 27.005(c). And the burden to make the prima facie showing in this

case is enhanced by another rule of law designed to foster free—though perhaps

unpleasant—speech. That rule requires clear and specific proof by a plaintiff who is

a public figure that the defamatory statements were made with actual malice.

      Here, the allegedly defamatory statements at issue were not made of whole

cloth—the public record demonstrates that although the trial court deferred an

adjudication of guilt, Fernandez had recently pleaded guilty to a charge of

                                          2
misdemeanor theft. See Tex. Penal Code Ann. § 31.03(e)(3). Instead, Fernandez

challenges how Appellants characterized the disposition and nature of the offense that

no one disputes occurred.          We agree that Appellants made statements that

mischaracterized both the disposition and the nature of the offense and that those

mischaracterizations appear blatant to lawyers and judges who devote themselves to

parsing the distinctions that Appellants misstated.     But we do not analyze the

statements through a lens so finely tuned to the intricacies of the law. Our lens

focuses on whether the statements were substantially true as perceived by a person of

ordinary intelligence. And again, at the TCPA stage, Fernandez carries the burden to

establish by clear and specific prima facie proof that Appellants made the statements

while acting with actual malice.

      These principles guide our resolution of this appeal in two ways.         First,

analyzed through the lens of substantial truth perceived by a person of ordinary

intelligence, we conclude that the mischaracterization of the disposition of the

criminal offense was not defamatory. Second, we conclude that Fernandez failed to

present clear and specific evidence to make a prima facie showing that Appellants

mischaracterized the offense while acting with actual malice. But because Appellants

failed to challenge Fernandez’s claim for intentional infliction of emotional distress

(IIED) in their TCPA motion to dismiss or on appeal, we affirm in part and reverse

and remand in part.



                                           3
                                  II. BACKGROUND

A. Factual Background

      This controversy began with a conflict between Fernandez and Janie Woodside

Joplin. Fernandez is a former councilmember of the City of Kennedale; Joplin is a

current councilmember of the City of Kennedale.          According to Fernandez, his

relationship with Joplin has been problematic since 2016 when Joplin’s husband

“physically accosted” him, and Fernandez in turn filed charges against him.

      Fernandez’s service as a councilmember ended in 2017 after legal troubles of

his own. While still a councilmember, he was charged with the offense of Class A

misdemeanor theft for allegedly stealing a silver bar worth more than $750 but less

than $2,500. See id. As part of a plea bargain, Fernandez pleaded guilty to the offense.

He was placed on deferred adjudication-community supervision, was fined $500, and

was ordered to pay court costs.        Fernandez resigned from his position as a

councilmember around the same time that he pleaded guilty.

      Fernandez claims that when he subsequently became involved in an effort to

obtain signatures to support a petition to recall Joplin (who had recently been elected

as a councilmember), Appellants and Joplin began “a smear campaign” against him by

using a variety of media to publish “false and defamatory statements”—that he is “a

convicted criminal” and a “known thief,” that he “committed robbery while being a

Kennedale city council member,” that “he lied when gathering signatures for a

Kennedale political campaign,” and that he took part in “corruption and cover-up.”

                                           4
Fernandez also alleged that Elam stopped him in the middle of the road and began

filming him as an “intimidation tactic.”

B. Procedural Background

      Fernandez filed a lawsuit against Appellants and Joplin, asserting claims for

statutory defamation by libel, common law defamation by libel and libel per se,

defamation by slander, and IIED.1 Fernandez also sought temporary and permanent

injunctive relief. Fernandez filed a supplement to his pleading in which he asserted a

claim against Appellants for conspiracy to defame.

      Fernandez complained about the following communications from Appellants

that he contends are defamatory:

      4.8 Defendants . . . falsely told two of Fernandez’s neighbors that Fernandez
      was a convicted criminal. Said two neighbors were [formerly] friendly and
      cordial to Fernandez, but they no longer speak with Fernandez since
      Defendants made the false and defamatory statements. Elam has
      stopped in the middle of the road and filmed Fernandez as an
      intimidation tactic. Joplin, Elam[,] and Weber hired Palmer to assist
      them in their harassing campaign against Fernandez.

              4.9 Elam sent and published a bullying text message about Fernandez to
      Erin Matthews on a Facebook group aimed at Kennedale residents. Always
      the gentleman, in the message ‘internet tough-guy’ Elam insulted Ms.
      Matthews in a threatening manner (warning said lady not to “run your
      slobbering mouth”), and falsely stating that “Frank [Fernandez] is a
      convicted criminal, he [committed] robbery while being a Kennedale city council
      member.” Fernandez is not a convicted criminal, and has never even been
      charged with (much less committed) robbery.



      1
        Fernandez eventually settled with Joplin and dismissed her from the lawsuit.
She is not a party to this appeal.

                                            5
              4.10 Elam, Joplin[,] and Weber posted false and defamatory statements
      about Plaintiff on “Kennedale Voters Group[,”] an electronic Facebook group/forum
      that Elam, Joplin, and Weber served as administrators for. Elam, Joplin,
      and Weber caused a video to be published on Facebook’s Kennedale Voters Group,
      bearing a heading “Mayor is Associated with convicted robber before and after being
      found guilty[,”] which described the Kennedale Mayor’s association with
      Fernandez, falsely stating that Fernandez was a “convicted robber” and had been
      “found guilty[,”] neither of which were true.

             ....

              4.12 Texas Debt Watch, an online Facebook group run by
      Palmer, published a video online with the heading “Store Owner
      Rejoices as Profits Go Back to Normal After Former City Councilman’s
      Foiled Heist.” Said video, published by Palmer online, also described Fernandez as
      a “known thief[,”] that “he stole from somebody[,”] and that he lied when gathering
      signatures for a Kennedale political campaign. After receiving a criminal
      trespassing warning from the Kennedale Police Department, Palmer also
      implied on a Facebook video that [the] Mayor and Fernandez took part in
      corruption and cover-up. [Emphasis added.]

      Appellants filed a TCPA motion to dismiss, contending that Fernandez’s claims

were based on, related to, or in response to the exercise of their rights of free speech.2

See Tex. Civ. Prac. & Rem. Code Ann. § 27.003. Fernandez filed a response and

objections to Appellants’ declarations that were attached to their motion. The trial

court considered the motion to dismiss by submission before signing an order

indicating that it would sustain Fernandez’s objections to Appellants’ declarations,


      2
         Although Appellants’ TCPA motion to dismiss broadly stated that all of
Fernandez’s “claims” were based on, related to, and in response to their exercise of
their rights of free speech, the motion did not specifically assert that Fernandez’s
claims for IIED and conspiracy implicated the TCPA, nor did it challenge Fernandez
to set forth clear and specific evidence of the elements of these claims. The effect of
this is discussed in section (V)(D) of this memorandum opinion.


                                              6
except that Appellants would be permitted to cure the formal defects in the

declarations.3 The order then stated that the failure to cure the defects would result in

the denial of the TCPA motion to dismiss but that if the defects were cured, the trial

court would grant the motion to dismiss.

      Appellants filed “improved” declarations and submitted a proposed order

granting the motion to dismiss, but the trial court signed an order denying the motion.

The order stated that the trial court had considered “the pleadings, the evidence and

arguments of counsel,” and while the trial court acknowledged its prior order

indicating that it would grant the motion if the declarations’ formal defects were

cured, the trial court stated that it “undertook a complete review of the matter and

decided to [deny] the motion.”

                                 III. ISSUES ON APPEAL

      Appellants raise three issues challenging the denial of their TCPA motion to

dismiss: (1) the trial court erred by deciding that Fernandez’s defamation claims


      3
        It is worth mentioning that the trial court’s order included a footnote
suggesting to the parties that Texas Rule of Civil Procedure 166a(f)—the rule
concerning summary-judgment affidavits—was instructive for curing formal defects
in Appellants’ declarations. Although our analysis does not turn on the admissibility
of Appellants’ declarations, we mention that in a slightly different context, our
colleague, Justice Kerr, has expressed skepticism about the applicability of the
standards articulated in rule 166a in resolving a TCPA motion to dismiss, and we
adopt and reiterate that skepticism here as it relates to the admissibility of TCPA
affidavits. Cf. Mogged v. Lindamood, No. 02-18-00126-CV, 2018 WL 6920502, at *12–
14 (Tex. App.—Fort Worth Dec. 31, 2018, pet. filed) (mem. op.) (Kerr, J., dissenting
and concurring) (calling into doubt the applicability of rule 166a standards to resolve a
TCPA motion to dismiss).

                                           7
against them are not based on, related to, or in response to the exercise of their rights

of free speech; (2) the trial court erred by deciding that Fernandez had established by

clear and specific evidence a prima facie case for each element of his defamation

claims, including that Appellants acted with actual malice because they contend

Fernandez is a public figure; and (3) the trial court erred by deciding that Appellants

had failed to establish by a preponderance of the evidence each element of their

defense to the defamation claims. Although he disagrees with each contention,

Fernandez focuses the majority of his brief on his contention that because he is no

longer a city councilmember, he should not be considered a public figure and

therefore should not be subjected to the heightened intent element of actual malice to

establish his defamation claims.

                       IV. STANDARD AND SCOPE OF REVIEW

      We review a trial court’s ruling on a motion to dismiss under the TCPA

de novo. United Food & Commercial Workers Int’l Union v. Wal–Mart Stores, Inc., 430

S.W.3d 508, 511 (Tex. App.—Fort Worth 2014, no pet.). In our de novo review, “the

unique language of the TCPA” dictates that we decide the initial question of the

TCPA’s applicability based on a “holistic review of the pleadings.” Adams v. Starside

Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018). After resolving the initial

question of applicability, we review a trial court’s TCPA determination based on “the

pleadings and supporting and opposing affidavits stating the facts on which the

liability or defense is based.” Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a).

                                           8
                                   V. DISCUSSION

A. The Texas Citizens Participation Act

      The TCPA “protects citizens from retaliatory lawsuits that seek to intimidate or

silence them on matters of public concern.” In re Lipsky, 460 S.W.3d 579, 586 (Tex.

2015) (orig. proceeding). The purpose of the TCPA is “to encourage and safeguard

the constitutional rights of persons to petition, speak freely, associate freely, and

otherwise participate in government to the maximum extent permitted by law and, at

the same time, protect the rights of a person to file meritorious lawsuits for

demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002.

      “To effectuate the [TCPA’s] purpose, the [l]egislature has provided a two-step

procedure to expedite the dismissal of claims brought to intimidate or to silence a

defendant’s exercise of these First Amendment rights.” ExxonMobil Pipeline Co. v.

Coleman, 512 S.W.3d 895, 898 (Tex. 2017). Under the first step,

      a movant [defendant] seeking to prevail on a motion to dismiss under
      the TCPA has the burden to “show . . . by a preponderance of the
      evidence that the [nonmovant’s] legal action is based on, relates to, or is
      in response to the [movant’s] exercise of (1) the right of free speech; (2)
      the right to petition; or (3) the right of association.”4

Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 872 (Tex. App.—Austin 2018, pet. filed)

(quoting Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)). The Supreme Court of

Texas holds that because the basis of a legal action is determined by the plaintiff’s


      4
       The TCPA provides specific definitions for each of the rights it protects. See
Tex. Civ. Prac. & Rem. Code Ann. § 27.001(2)–(4).

                                           9
allegations, “[w]hen it is clear from the plaintiff’s pleadings that the action is covered

by the Act, the defendant[s] need show no more” to satisfy the first step of the TCPA

analysis and bring themselves within the TCPA’s protections. Hersh v. Tatum, 526

S.W.3d 462, 467 (Tex. 2017).

      “Under the second step, if the trial court determines that the movant

[defendant] has met his burden to show that the TCPA applies, the burden shifts to

the nonmovant [plaintiff] to establish ‘by clear and specific evidence a prima facie case

for each essential element of the claim in question.’” Grant, 556 S.W.3d at 872–73

(quoting Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c)). 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.” Lipsky, 460 S.W.3d at 590. It is the “minimum quantum of

evidence necessary to support a rational inference that the allegation of fact is true.”

Id. Clear and specific evidence ultimately means that the “plaintiff must provide

enough detail to show the factual basis for its claim.” Id. at 591.

      But even if the nonmovant/plaintiff satisfies this step-two burden and presents

a prima facie case by clear and specific evidence, “the trial court must dismiss the legal

action if the [defendant] establishes by a preponderance of the evidence each essential

element of a valid defense to the [plaintiff’s] claim.” Grant, 556 S.W.3d at 873

(internal quotation marks omitted); see Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d)

(“Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal



                                           10
action against the moving party if the moving party establishes by a preponderance of

the evidence each essential element of a valid defense to the nonmovant’s claim.”).

      Finally, the TCPA provides that if the trial court grants a TCPA motion to

dismiss, it “shall” award the moving party

      (1) court costs, reasonable attorney’s fees, and other expenses incurred in
      defending against the legal action as justice and equity may require; and

      (2) 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). Our court has held that “[a]lthough

the trial court [is] required by section 27.009[(a)(2)] to award some amount of

sanctions, it ha[s] the discretion to award only a nominal amount, such as $1.00,” as

long as the mandatory award of attorney’s fees and costs is already sufficient to deter

the plaintiff from bringing similar actions. Rich v. Range Res. Corp., 535 S.W.3d 610,

613, 615 (Tex. App.—Fort Worth 2017, pet. denied).

B. Analysis of Step One

      In their first issue, Appellants argue that the trial court erred by concluding that

they had failed to establish their step-one burden—that is, Appellants contend that

they established by a preponderance of evidence that Fernandez’s lawsuit is based on,

relates to, or is in response to their exercise of their rights of free speech. See Tex.

Civ. Prac. & Rem. Code Ann. § 27.005(b). We agree. The lawsuit is related to the




                                             11
right of free speech because it involved communications made in connection with a

matter of public concern.

      The TCPA defines the “exercise of the right of free speech” as consisting of “a

communication made in connection with a matter of public concern.” Id. § 27.001(3).

The TCPA defines a “matter of public concern” as including an issue related to health

or safety; environmental, economic, or community well-being; the government; a

public official or public figure; or a good, product, or service in the marketplace. Id.

§ 27.001(7). The TCPA defines a “communication” as “the making or submitting of a

statement or document in any form or medium, including oral, visual, written,

audiovisual, or electronic.” Id. § 27.001(1).

      Fernandez does not argue that the statements to his neighbors or those

contained in the videos, Facebook message, and postings are not “communications”

as defined by the TCPA, and our research reveals no reason to conclude otherwise.

See id.; Smith v. Crestview NuV, LLC, 565 S.W.3d 793, 798 (Tex. App.—Fort Worth

2018, pet. filed) (explaining that the breadth of the TCPA’s definition of

communication extends the application of the TCPA to “[a]lmost every imaginable

form of communication, in any medium” (quoting Adams, 547 S.W.3d at 894)). Thus,

we focus our analysis on whether the communications were made in connection with

a “matter of public concern.”

      Fernandez’s defamation claims are predicated on statements to Fernandez’s

neighbors that he was a “convicted criminal”; the message that Fernandez is a

                                            12
convicted criminal who committed “robbery”; posting a video on a Facebook group

page and captioning it with the statement that Fernandez is a “convicted robber” who

had been “found guilty”; posting a video on a different Facebook group page stating

that Fernandez was a “known thief” who “stole from somebody”; the video itself

which stated that Fernandez had engaged in a “failed robbery”; and the insinuations in

the video that Fernandez was part of “corruption” and a “cover-up” when he

resigned from city council and that he had lied while gathering signatures for a

political campaign. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). Thus,

Fernandez’s pleading establishes that his defamation claims are based on, related to,

or are in response to communications. See Cavin v. Abbott, 545 S.W.3d 47, 69 (Tex.

App.—Austin 2017, no pet.) (concluding that the plaintiffs’ claims “relate to” the

defendants’ “exercise of the right of free speech” because “there is some sort of

connection, reference, or relationship” between the claims and the exercise of the

right of free speech).

       We agree with Appellants that the challenged statements are communications

made in connection with a matter of public concern because they were made during a

political contest—i.e., a petition to recall an elected councilmember—and because

they are related to the charge and prosecution of Fernandez for the crime of theft

while he was a city councilmember, as well as to the circumstances surrounding his

resignation from the city council. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7);

Lane v. Franks, 573 U.S. 228, 241, 134 S. Ct. 2369, 2380 (2014) (explaining that

                                         13
“[s]peech involves matters of public concern when it can be fairly considered as

relating to any matter of political . . . concern to the community” (internal quotation

marks omitted)); Adams, 547 S.W.3d at 896, 898 (holding appellate court erred in

concluding that defendants failed to meet their step one TCPA burden, in part,

because plaintiff’s allegation that a developer and HOA repeatedly violated the law

and engaged in corrupt or criminal activity is a matter of public concern); Brady v.

Klentzman, 515 S.W.3d 878, 884 (Tex. 2017) (“Public matters include, among other

things, ‘commission of crime, prosecutions resulting from it, and judicial proceedings

arising from the prosecutions.’” (quoting Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492,

95 S. Ct. 1029, 1045 (1975))).

       Therefore, because we conclude that Appellants satisfied their burden under

step one and demonstrated by a preponderance of evidence that Fernandez’s

defamation claims are based on, related to, or in response to Appellants’ exercise of

their right of free speech, we sustain Appellants’ first issue.5

C. Analysis of Step Two

       Having concluded that Appellants satisfied step one, we now turn to

Appellants’ second issue—that Fernandez failed to carry his burden and establish by


       Because we reach this conclusion based solely on Fernandez’s pleadings, we
       5

need not resolve the objections to and the issue of the admissibility of Appellants’
declarations. See Tex. R. App. P. 47.1; Hersh, 526 S.W.3d at 467 (“When it is clear
from the plaintiff’s pleadings that the action is covered by the Act, the defendant need
show no more.”); DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, 850 (Tex.
App.—Fort Worth 2018, no pet.).

                                             14
clear and specific evidence a prima facie case for each essential element of his

defamation claims.

      “To maintain a cause of action for defamation, the plaintiff must establish that

the defendant (1) published a false statement about the plaintiff; (2) that was

defamatory; (3) while acting with either actual malice, if the plaintiff was a public

official or public figure, or negligence, if the plaintiff was a private individual,

regarding the truth of the statement.” Grotti v. Belo Corp., 188 S.W.3d 768, 774 (Tex.

App.—Fort Worth 2006, pet. denied); see also Lipsky, 460 S.W.3d at 593; WFAA-TV,

Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Ghrist v. MBH Real Estate LLC,

No. 02-17-00411-CV, 2018 WL 3060331, at *4 (Tex. App.—Fort Worth June 21,

2018, no pet.) (mem. op.). Fernandez’s burden turns on whether he occupied the

status of a public figure at the time of publication of Appellants’ statements, which we

conclude that he did.

      1. Public Figure or Public Official Status

      To succeed on a defamation claim, private plaintiffs must prove that the

defendant was at least negligent, whereas public officials and public figures must

establish a higher degree of fault—they must prove that the defendant published a

defamatory falsehood with actual malice, that is, with “knowledge that it was false or

with reckless disregard of whether it was true or not.” Neely v. Wilson, 418 S.W.3d 52,

69 (Tex. 2013); see also New York Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84 S. Ct.

710, 726 (1964); New Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex. 2004).

                                           15
      In a defamation context, “the ‘public official’ designation applies at the very

least to those among the hierarchy of government employees who have, or appear to

the public to have, substantial responsibility for or control over the conduct of

governmental affairs.” Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S. Ct. 669, 676 (1966). A

public official’s position “must be one which would invite public scrutiny and

discussion of the person holding it, entirely apart from the scrutiny and discussion

occasioned by the particular charges in controversy.” Id. at 86 n.13, 86 S. Ct. at 677

n.13. While not every public employee is a public official, the rule is not limited to the

upper echelons of government. Villarreal v. Harte–Hanks Commc’ns, Inc., 787 S.W.2d

131, 134 (Tex. App.—Corpus Christi 1990, writ denied).

      Elected city councilmembers and candidates for city council are public officials.

See Schofield v. Gerda, No. 02-15-00326-CV, 2017 WL 2180708, at *12 (Tex. App.—

Fort Worth May 18, 2017, no pet.) (mem. op.) (“[A] ‘public official’ includes anyone

who holds, by election or appointment, a public office.”); Colson v. Grohman, 24 S.W.3d

414, 420 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (same); Ross v. Labatt,

894 S.W.2d 393, 395 (Tex. App.—San Antonio 1994, writ dism’d w.o.j.) (same).

Although the parties disagree as to whether Fernandez was still a city councilmember

at the time of the allegedly defamatory statements, it is undisputed that Fernandez was

a city councilmember from 2011 through at least 2017. Thus, Fernandez was a public

official while he was a city councilmember and a candidate for city council. See

Schofield, 2017 WL 2180708, at *12.

                                           16
       But according to Fernandez’s affidavit testimony, he resigned from city council

on May 2, 2017, and all of the disputed statements occurred after his resignation. So,

we must decide if Fernandez as a former public official was still a public figure or if he

lost that status after resigning from his public office. Because neither the parties’

briefs nor our research revealed that any Texas courts have addressed this issue, we

will look to federal case law for guidance. Cf. McLemore, 978 S.W.2d at 571–72

(adopting the Fifth Circuit’s three-part test in defamation case to assess whether an

individual is a limited-purpose public figure); Schofield, 2017 WL 2180708, at *12 (“In

this [public figure] determination, federal, not state, standards apply.”).

       The Supreme Court of the United States has not yet decided “whether or when

an individual who was once a public figure may lose that status by the passage of

time.” Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 166 n.7, 99 S. Ct. 2701, 2706

n.7 (1979). However, both the United States Supreme Court and the Fifth Circuit

Court of Appeals have suggested that “there may be cases where a person is so far

removed from a former position of authority that comment on the manner in which

he performed his responsibilities no longer has the interest necessary to justify the

New York Times rule.” Rosenblatt, 383 U.S. at 87 n.14, 86 S. Ct. at 676 n.14; Belli v.

Orlando Daily Newspapers, 389 F.2d 579, 588 (5th Cir. 1967) (quoting Rosenblatt).

       In Zerangue v. TSP Newspapers, Inc., the Fifth Circuit considered and rejected the

plaintiffs’ contention “that the passage of nearly six years between their discharge

[from public office] and the publication of the two [allegedly defamatory] articles had

                                            17
returned them to private figure status.” 814 F.2d 1066, 1069 (5th Cir. 1987). The

Fifth Circuit noted that the plaintiffs “cite[d] no cases holding that public official

status erodes with the passage of time.” Id. Indeed, the Fifth Circuit recognized that

other jurisdictions have held that “ex-public officials must prove that ‘actual malice’

prompted speech concerning their in-office activities.” See id. (collecting cases); cf.

Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 435–36 (5th Cir. 1987) (concluding

that once an individual becomes a public figure, he “cannot erase his public-figure

status by limiting public comment and maintaining a low public profile”).

      We agree with this reasoning and hold that based on the specific facts of this

case, Fernandez, as a former public official, was a public figure with respect to the

publication of the challenged statements because such a short time (less than one

year) had passed between his resignation and the allegedly defamatory statements, and

because the statements related to his conduct while he was a public official as well as

his resignation from city council and his subsequent activity and involvement in the

political campaign to recall Joplin.6 See Scruggs v. City of Bowie, No. 7:14-cv-00129-O,

2015 WL 13450692, at *4 (N.D. Tex. Dec. 17, 2015) (order) (holding former police


      6
        In support of his position that he is not a public figure, Fernandez primarily
relies upon Foster v. Laredo Newspapers, Inc., a case from the Supreme Court of Texas,
for the proposition that for a former public official to be considered a public figure,
the allegedly defamatory statements must clearly relate to the former official’s conduct
as a councilmember. 541 S.W.2d 809 (Tex. 1976). Fernandez’s reliance on Foster is
misplaced because Fernandez’s petition specifically alleges that Appellants “falsely
stat[ed] that ‘Frank [Fernandez] is a convicted criminal, he [committed] robbery while
being a Kennedale city council member.’” [Emphasis added.]

                                          18
officer was still public figure with respect to defamation claims stemming from

published statements in press release after his termination).

       Accordingly, in step two of the TCPA analysis, Fernandez must establish that

Appellants made the allegedly defamatory statements under the actual malice

standard.

       2. First Element – Falsity of Statements

       There is no dispute that the challenged statements made in a Facebook

message, in Facebook video captions, and in the videos themselves were published.

Therefore, we focus our analysis of the first element on whether Fernandez set forth

clear and specific evidence that the statements were false. Bentley v. Bunton, 94 S.W.3d

561, 586–87 (Tex. 2002) (explaining that when the plaintiff is a public official, he must

initially prove that defamatory statements made about him were false and thus it is not

the defendants’ burden to prove the truth of their statements as an affirmative

defense).

       With respect to the first element, a publication is false if it “is not substantially

true.” Neely, 418 S.W.3d at 63; Rodriguez v. Gonzales, No. 14-17-00667-CV, 2018 WL

6614153, at *3 (Tex. App.—Houston [14th Dist.] Dec. 18, 2018, no pet. h.) (quoting

Neely for the proposition that “[r]egarding the first element, a publication is false if it

‘is not substantially true’”). 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 Neely, 418 S.W.3d at 63. “A publication’s meaning is determined ‘by

                                            19
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.[”]’” Rodriguez, 2018 WL 6614153, at *3 (quoting KBMT Operating Co., LLC v. Toledo,

492 S.W.3d 710, 721 (Tex. 2016)). In other words, we determine falsity by first

ascertaining the “gist” of the publication. See Neely, 418 S.W.3d at 63–64. The

supreme court has recently affirmed that “it does not matter whether the gist of the

article is analyzed before or after the individual statements, as long as it is assessed

independently.” Dallas Symphony Ass’n, Inc. v. Reyes, No. 17-0835, 2019 WL 1090771,

at *7 (Tex. Mar. 8, 2019).

             a. Elam’s statements

      Elam’s first statement that Fernandez complains of was in the following

Facebook message:

      You are another fake supporter . . . do you know something I don’t?
      What arrest record? Teach me, before you run your slobbering mouth
      and try to speak my name, you may wish to do some research yourself.
      All of the arrest records were staged by the police for undercover work
      with the Dallas Police & County task force back in the seventies and
      eighties, You are so quick to put a noose around my neck without
      knowing the facts. Such fools. No I was not ever into drugs, I am a
      happily married man with an upstanding record here in Kennedale for
      the 24 years that we have lived here. You people are so delirious and ate
      up with hate. Frank is a convicted criminal, he commite [sic] robbery while being a
      Kennedale city council member. . . . another history lesson about the crimes
      right here in Kennedale. Your group you foolish person, one member
      was arrested for stealing over $50,000 from Kennedale while in public
      office here in Kennedale and another for putting his hands all over
      young teenage girls while he was also in office here in Kennedale. Now
      lets [sic] look at my past, I grew up in the heart of Oak Cliff, went to
      public schools there. Never got in any trouble as a teen. I went and

                                              20
      Joined the Army when I was 18, came out got married, did end up
      getting a divorce, I got custody of my daughter and was a single parent.
      [Emphasis added.]

      Fernandez also complains that Elam posted a video on a Facebook group page

and captioned the video with the word “convicted” and suggested that Fernandez was

a “convicted robber” who had been “found guilty.”

             b. Palmer’s statements

      Fernandez complains about a statement from Palmer in the beginning of a

video, in which Palmer stated that he was updating “the story we posted two weeks

ago involving disgraced former Kennedale city councilmember Frank Fernandez and

his failed robbery of [a] coin shop.” [Emphasis added.] Fernandez also complains that

Palmer stated that Fernandez is a “known thief” who “stole from somebody,” that

Fernandez lied while gathering signatures for a political campaign, and that he took

part in “corruption” and a “cover-up.”

             c. Weber’s statements

      Fernandez’s complaint regarding Weber is that he is liable as the administrator

of the Facebook group where the allegedly defamatory statements were published.

             d. The gist

                   “convicted criminal” who was “found guilty”

      Although Fernandez complains about several different statements from Elam

and Palmer, the main thrust of Fernandez’s complaint appears to be the statements

that he is a convicted criminal who had been found guilty of robbery when Fernandez

                                         21
maintains that he has not been charged with robbery and that he has not been

convicted of any crime.

       To be sure, Fernandez was not “convicted” of theft of the silver bar. A

conviction is defined as “[t]he act or process of judicially finding someone guilty of a

crime; the state of having been proved guilty.” Conviction, Black’s Law Dictionary

(10th ed. 2014). In Fernandez’s case, there was no trial with the State admitting

evidence establishing proof of his guilt, a jury verdict of guilty, or a final judgment

providing the same. Indeed, the order of deferred adjudication expressly states,

“Adjudication of Guilt Deferred.”

       However, Fernandez did plead guilty to the offense of theft of more than $750

but less than $2,500, he received twenty months of community supervision, and he

had to pay a $500 fine plus court costs. As we noted, the test we apply is not one that

makes a clear demarcation of black and white between a statement being true or false.

The standard is deciding when a statement becomes so grey that it becomes

actionable. We test the defamatory character of the statement by taking it as a whole

and looking at it through the lens of a person of average intelligence. Our goal is to

decide whether, to that person of average intelligence, the statement made is more

damaging than the truth would have been, and even statements that exaggerate may

still be substantially true through that lens:

       “The test used in deciding whether a statement is substantially true
       involves considering whether the alleged defamatory statement was more
       damaging to the plaintiff’s reputation, in the mind of the average listener,

                                             22
      than a truthful statement would have been. This evaluation involves
      looking to the “gist” of the statement.” Austin[ v. Inet Techs., Inc.], 118
      S.W.3d[ 491,] 496 [(Tex. App.—Dallas 2003, no pet.)] (citing McIlvain v.
      Jacobs, 794 S.W.2d 14, 16 (Tex. 1990)); see also Turner v. KTRK Television,
      Inc., 38 S.W.3d 103, 115 (Tex. 2000) (noting “the substantial truth
      doctrine precludes liability for a publication that correctly conveys a
      story’s ‘gist’ or ‘sting’ although erring in the details”); Langston v. Eagle
      Printing Co., 797 S.W.2d 66, 69 (Tex. App.—Waco 1990, no writ) (stating
      a publication is substantially true even if it “greatly exaggerate[s]”
      plaintiff’s misconduct, as long as “an ordinary reader would not attach
      any more opprobrium to the plaintiff’s conduct merely because of the
      exaggeration”).

Ruder v. Jordan, No. 05-14-01265-CV, 2015 WL 4397636, at *3 (Tex. App.—Dallas

July 20, 2015, no pet.) (mem. op.).

      We have found three cases that deal with a situation analogous to the statement

that we review.

      A federal district court in Texas has resolved a similar set of facts in which a

plaintiff had sued a news outlet for defamation when the outlet ran a story that the

plaintiff had been “convicted” of “a crime that was sexual in nature.” Williams v.

Cordillera Commc’ns, Inc., 26 F. Supp. 3d 624, 631 (S.D. Tex. 2014). In that case, the

plaintiff had not been convicted of a crime but had confessed to the crime of

telephone harassment, signed a written plea of guilty to the charge, and had entered

into a deferred prosecution agreement. Id. This resolution punitively required him to

stay away from the victim, to pay restitution, and to obtain therapy from a sex

offender therapist. Id. at 632. The federal district court reasoned that “[w]hile [the

plaintiff] was not convicted of a crime, he confessed to the crime and was punished


                                           23
for it,” so “[t]he damaging issue in the mind of an ordinary viewer with respect to [the

plaintiff’s] reputation [of] guilt and [the news outlet’s] statement that [the plaintiff] had

been convicted did not carry a heavier sting than the truth of his confessed guilt.” Id.

Therefore, the federal court concluded, “The statement that [the plaintiff] was

convicted was substantially true.” Id.

       A federal district court in Tennessee that was presented with a similar argument

reached a similar conclusion. There, the plaintiff claiming defamation asserted that he

pleaded guilty and received “Judicial Diversion” and that “[d]eferral is not the same

thing as being a ‘Convicted Felon’ [so] the news reports were not true and not entitled

to protection under the truth defense.” Molthan v. Meredith Corp., No. 3:17-CV-00380,

2018 WL 691338, at *4 (M.D. Tenn. Feb. 2, 2018), report and recommendation adopted,

No. 3:17-CV-00380, 2018 WL 2387235 (M.D. Tenn. May 25, 2018), appeal dismissed,

No. 18-5664, 2018 WL 4621952 (6th Cir. Aug. 17, 2018). More specifically,

       Plaintiff contends that judicial diversion precludes an adjudication of
       guilt and he maintains that “although the meaning [of conviction] differs
       based on context, [ ] it generally refers to a step in the judicial process,
       namely the “Verdict” phase (finding of guilt).” He explains that because
       he “never reached a ‘Verdict’ or ‘Finding of Guilt’ in his criminal case
       and instead received Judicial Diversion, it would appear certain that he
       has been immunized from the characterization of ‘Convicted Felon’ in
       all instances except those enumerated within the statute itself.

Id. at *5 (internal citation omitted). The United States Magistrate Judge recommended

dismissal of the plaintiff’s defamation claim, and in adopting the recommendation

over the plaintiff’s objections, the United States District Judge concluded that


                                             24
“Plaintiff’s distinction between being ‘convicted’ and ‘pleading guilty’ to later receive a

deferred conviction is immaterial for purposes of this case.” Molthan, 2018 WL

2387235, at *2.

       Finally, a federal district court in Virginia similarly granted summary judgment

on a plaintiff’s claim that he had been defamed when the defendants “portrayed him,

through constant telephone calls and letters, to other members of the . . . community

as a ‘convicted felon.’” Carpenter v. Drechsler, Civ. A. No. 89-0066-H, 1991 WL

332766, at *3 (W.D. Va. May 7, 1991) (mem. op.), aff’d, 19 F.3d 1428 (4th Cir. 1994).

Interestingly, the alleged conviction had occurred in Texas, and the plaintiff argued

that because “a final adjudication of his guilt in the Texas proceedings was deferred

pending his successful completion of ten years on probation without further criminal

incident, . . . he is not a convicted felon and that characterizing him as such is patently

defamatory.” Id. In a footnote, the district court more fully explained the legal

subtleties of the plaintiff’s objection:

       [T]he plaintiff’s objection to the label “convicted felon” seems to be
       grounded in the fact that, in the Texas criminal proceeding, he pled
       guilty to the aggravated-promotion-of-prostitution charge under a plea
       agreement whereby a final “adjudication of his guilt would be deferred”
       as long as he completed his probation period without further criminal
       incident.

Id. at *6 n.6.

       The district court rejected this argument and concluded that although in some

“hyper-technical sense,” the statement that “the plaintiff is a ‘convicted felon,’ when


                                            25
he is only a ‘confessed felon,’ may not fully incorporate all of the subtleties of the plea

agreement into which he entered with the prosecution,” there is nothing “substantially

inaccurate about the statement and, as a matter of law, cannot subject the defendants

to any type of liability for defamation.” Id.

       We find the reasoning of these federal district courts persuasive and applicable

to our case. While a licensed attorney may be able to distinguish a guilty plea with an

order of deferred adjudication from a conviction, we believe the average reasonable

person would not. That is, the statements that Fernandez was a “convicted” criminal

are no more damaging than if Appellants had more accurately stated that Fernandez

pleaded guilty to the charge of misdemeanor theft and that the trial court deferred a

finding of guilty, placed Fernandez on deferred adjudication-community supervision,

and ordered him to pay a $500 fine. See Provencio v. Paradigm Media, Inc., 44 S.W.3d 677,

681 (Tex. App.—El Paso 2001, no pet.) (“[A] statement is substantially true if it is no

more damaging than a true statement would have been.”); Rogers v. Dallas Morning

News, Inc., 889 S.W.2d 467, 472–73 (Tex. App.—Dallas 1994, writ denied).

       We appreciate the dissent’s perspective on this issue but believe that the

perspective that we adopt is the proper one. The dissent begins with an accurate and

thorough discussion of the Texas Code of Criminal Procedure and the distinctions

found in the law between those convicted of a crime and those who have received

deferred adjudication. The statement that Fernandez had been convicted of a crime is

not true. But the dissent concludes that the distinctions highlighted in the code of

                                            26
criminal procedure and that we as lawyers and judges deal with everyday are apparent

to “those of us who are ‘ordinary’” and that the mischaracterization of Fernandez’s

status makes the statement grey enough—not substantially true enough—to be

actionable. We have cited three cases applying the person-of-ordinary-intelligence

standard that reach the opposite conclusion. Though they are not precedents that

bind us, we do find them persuasive.

        The dissent also suggests that we resolve this case with an approach that

improperly parses the statements at issue by looking at words such as “convicted” in

isolation and not in the context of the full phrase used, such as “convicted robber.”

Part of that emphasis comes from the approach adopted by Fernandez’s counsel

when he sent his cease-and-desist letter that we will discuss in detail below. That

letter focused on the suggestion that Fernandez had been convicted of a crime. With

that focus, we found it reasonable to focus initially on the sting of the word

“convicted” in isolation. And, as explained above, the supreme court has recently

affirmed that individual statements may be assessed before analyzing the gist, as long

as the gist is independently analyzed. Dallas Symphony Ass’n, Inc., 2019 WL 1090771, at

*7. 7



       In a footnote, the dissent highlights that Appellants’ declarations state that “I
        7

am aware that there are some legal processes that treat ‘deferred adjudication’ similar
to ‘convicted.’” These statements are vague, but we do not view them as a confession
that Appellants ignored the legal distinction, nor do they alter how a person of
ordinary intelligence would view the use of the word “convicted.”

                                          27
      Also, we note below that we do find the suggestion that Fernandez was a

robber to not be substantially true, but that is because of the additional element of

bodily injury or threatening bodily injury that the offense connotes.       It is that

distinction that we find central and not any additional sting that results from the

failure to distinguish between a convicted robber and one who received deferred

adjudication.

      Therefore, because the gist of the statements—that Fernandez was a

“convicted criminal”—is substantially true, we conclude that Fernandez did not carry

his burden under step two for his defamation claims based on these statements.

                    “known thief” who “stole from somebody”

      Fernandez also asserts a defamation claim for a video posted by Palmer, which

described Fernandez as a “known thief” who “stole from somebody.”                It is

undisputed that Fernandez was charged with theft of property of more than $750 but

less than $2,500.   The charging instrument, which was attached to Fernandez’s

petition, specifies that Fernandez was alleged to have “unlawfully appropriate[d] by

acquiring or otherwise exercising control over property, namely a silver bar, of the

value of $750 or more, but less than $2,500, with intent to deprive the owner . . . of

the property.”

      As we explained above, Fernandez pleaded guilty to this offense and as part of

his plea, he was placed on twenty months’ deferred adjudication-community

supervision and was ordered to pay a fine of $500 plus court costs. Viewing the

                                         28
allegations in the charging instrument in connection with Fernandez’s guilty plea, fine,

and terms of community supervision, we conclude that the gist of the statements—

that Fernandez was a “known thief” who “stole from somebody”—is substantially

true and, to any degree, no more damaging than a true statement would have been.

See Provencio, 44 S.W.3d at 682; Rogers, 889 S.W.2d at 472. Thus, Fernandez did not

carry his burden under step two for his defamation claims based on these statements.

                    “committed robbery,” “convicted robber,” “failed robbery”

      But Appellants did not simply call Fernandez a “convicted criminal” or a

“known thief.” Fernandez alleges that Elam posted a message on a Facebook group

page stating that Fernandez had “commite [sic] robbery” and captioned a video on a

different Facebook group page, which stated that Fernandez is a “convicted robber

[who had] be[en] found guilty.” And Palmer stated in a video that Fernandez had

engaged in a “failed robbery.”

      Theft—what Fernandez was actually charged with—and robbery are related

but distinct offenses. Compare Tex. Penal Code Ann. § 31.03(a) (defining theft), and

Webster’s Third New Int’l Dictionary 2369 (2002) (defining theft as “the felonious taking

and removing of personal property with intent to deprive the rightful owner of it”),

with Tex. Penal Code Ann. § 29.02(a) (providing elements for the offense of robbery,

which include theft), and Webster’s Third New Int’l Dictionary 1964 (defining robbery as

“a larceny from the person or immediate presence of another by violence or threat of

violence”). Specifically, robbery incorporates theft and adds to it an element of

                                           29
intentionally, knowingly, or recklessly causing bodily injury to another or threatening

bodily injury to another. See Cooper v. State, 430 S.W.3d 426, 430–31 (Tex. Crim. App.

2014) (Keller, J., concurring) (“The requirement that there be theft activity is a

common element to the different statutory methods of committing robbery.”).

      So while robbery and theft are “closely related crimes,” the “distinction

between the two offenses lies in the antecedent violence, either actual or threatened,

which is perpetrated on the victim of the robbery.” Ex parte Evans, 530 S.W.2d 589,

591 (Tex. Crim. App. 1975); Mann v. Scott, 41 F.3d 968, 977 (5th Cir. 1994) (explaining

that in Texas, “[r]obbery, by statutory definition, is essentially ‘theft plus’—namely, it

is theft accomplished by the use of physical force or threats of bodily injury”).

Because of the requirement of antecedent violence, either actual or threatened, against

an individual, the offense of robbery necessarily implicates another flesh-and-blood

person, whereas theft may be committed against businesses or entities. Cf. United

States v. Davis, 487 F.3d 282, 286 (5th Cir. 2007) (“To commit robbery, an individual

must interact with the victim in order to cause bodily injury or place the victim in fear

of it.”); Scott v. Tanner, No. 01-02-00668-CV, 2003 WL 22862806, at *1 n.1 (Tex.

App.—Houston [1st Dist.] Dec. 4, 2003, no pet.) (mem. op.) (recognizing “that

people, not parks, are ‘robbed’” despite parties’ erroneous use of the term “robbed”).

      In light of the foregoing, we conclude that Elam’s statements that Fernandez is

a convicted “robber” who was “found guilty” and that he “[committed] robbery” and

Palmer’s statement that Fernandez engaged in a “failed robbery” suggest that in

                                           30
addition to theft, he intentionally, knowingly, or recklessly caused or attempted to

cause another bodily injury. Indeed, by calling Fernandez a convicted “robber” who

had engaged in a “failed robbery,” Elam’s and Palmer’s statements have falsely

imputed to Fernandez the additional act of committing or attempting to commit

violence or threatening violence against a person.        See Davis, 487 F.3d at 287

(concluding robbery offense under Texas statute qualifies as a violent felony under

federal law because a violation of the statute “poses a substantial risk of violent

confrontation, [and] there is a substantial risk that physical injury will result”).

Fernandez was not charged with nor did he plead guilty to robbery. Rather, he was

charged with and pleaded guilty to the misdemeanor theft of a silver bar.

      Therefore, the gist of Elam’s statements referring to Fernandez as a “robber”

and the allegation that he was “found guilty” of “robbery” and Palmer’s statement

that Fernandez attempted a “failed robbery” was not substantially true because the

statements were more damaging than the true statements that Fernandez was charged

with misdemeanor theft and pleaded guilty to it. See Campbell v. Clark, 471 S.W.3d

615, 627 (Tex. App.—Dallas 2015, no pet.) (concluding defamation plaintiff satisfied

his step-two burden under the TCPA and established by a preponderance of evidence

that “statements in [an] article and mailer—including statements . . . that accused [the

plaintiff] of corruption in obstructing justice—were presented as objectively

verifiable” and thus defamatory). Fernandez carried his step-two burden with respect

to these statements.

                                          31
                    “corruption” and “cover-up”

       Fernandez’s next allegation concerns Palmer’s statements in the videos and

their suggestion of “corruption” and “cover-up” regarding Fernandez’s resignation

from the city council. Specifically, Palmer attempts to tie together Fernandez’s arrest,

a quote from the mayor in an article in the Fort Worth Star-Telegram in which the mayor

stated that Fernandez had tendered a resignation letter, subsequent statements from

the mayor and Fernandez that Fernandez had verbally resigned due to health reasons,

and the mayor’s subsequent refusal to speak to Palmer at a public event at which

Palmer claims he received a criminal trespass warning at the mayor’s urging. Because

Fernandez apparently continued to be an active supporter of the mayor and because

Palmer claims that city employees told him that Fernandez’s resignation letter was

“sealed,” Palmer theorized that there was “corruption” and a “cover-up” to conceal

from the public the real reason Fernandez resigned—his arrest for theft of the silver

bar.

       “A defamatory statement must be directed at the plaintiff as an ascertainable

person to be actionable.” Vice v. Kasprzak, 318 S.W.3d 1, 13 (Tex. App.—Houston

[1st Dist.] 2009, pet. denied). Moreover, “[t]he false statement must point to the

plaintiff and no one else.” Klentzman v. Brady, 456 S.W.3d 239, 254 (Tex. App.—

Houston [1st Dist.] 2014), aff’d, 515 S.W.3d 878 (Tex. 2017).

       Although it is obvious that Fernandez may enjoy some benefit from the alleged

“cover-up” and “corruption”—i.e., less publicity of his arrest—and it is plausible that

                                          32
Fernandez may have asked the city to seal his resignation letter or otherwise downplay

the relationship between his arrest and resignation, the gist of the statements when

read together in light of the surrounding circumstances suggests that they are directed

not at Fernandez but at the mayor. Fernandez was helping the mayor’s election

campaign, so the benefit of any alleged “corruption” or “cover-up” would primarily

benefit the mayor. Moreover, it is unclear how Fernandez could engage in any

“corruption” or “cover-up” when he was no longer a councilmember at the time of

the alleged “corruption” and “cover-up.” Finally, the video refers to a newspaper

quote from the mayor that Fernandez had tendered a resignation letter and then

shows Palmer questioning the mayor following a public meeting, ostensibly to expose

that the mayor is covering up the real reason for Fernandez’s resignation.

      Therefore, we conclude that the statements about “corruption” and a “cover-

up” are not actionable false statements about Fernandez because the gist of the

statements is directed not at Fernandez, but at the mayor for allegedly engaging in

“corruption” and a “cover-up” in order to protect a political supporter and campaign

worker. Fernandez failed to carry his step-two burden.

                    “lied when gathering signatures for a Kennedale political
                    campaign”

      Fernandez’s final allegation concerns Palmer’s statement that Fernandez lied

when gathering signatures for the petition to recall Joplin. Although the statement

appears several times throughout the record, the allegation of lying when gathering


                                          33
signatures is, in every instance but one, directed at a “paid consultant,” not Fernandez.

Thus, these statements cannot support the first element of Fernandez’s defamation

claim because the allegation of lying is directed at the “paid consultant,” not

Fernandez. See id.

       However, at the end of one of the videos, Palmer asks a Kennedale resident

what she thinks about Fernandez “gathering signatures, telling people lies in order to get

them to sign the petition.” [Emphasis added.] While calling someone a liar or a crook in a

general sense is not defamatory on its face, Palmer specified that Fernandez had lied

to obtain signatures for the recall petition, so Palmer’s statement that Fernandez was

“telling people lies in order to get them to sign the [recall] petition” could be an

actionable false statement. See Billington v. Houston Fire & Cas. Ins. Co., 226 S.W.2d

494, 496 (Tex. App.—Fort Worth 1950, no writ) (holding words such as “liar” and

“crook” in isolation are not actionable per se). But unlike other portions of his

affidavit, Fernandez does not specifically dispute the allegation that he told lies in

order to get people to sign the recall petition. Thus, Fernandez has failed to provide

clear and specific evidence of the first element of his defamation claim that Palmer’s

statement that Fernandez lied to get people to sign the recall petition is false.

       Having determined that Fernandez only set forth clear and specific evidence of

the first element of his defamation claims with respect to Elam’s statements that

Fernandez is a “convicted robber” who was “found guilty” and that he had

committed “robbery,” and Palmer’s statement that Fernandez engaged in a “failed

                                            34
robbery,” we next analyze whether Fernandez carried his step-two burden of the

second element of defamation for these statements.

      3. Second Element – Defamatory Statement

      A defamatory statement is one 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.” Tex. Civ.

Prac. & Rem. Code Ann. § 73.001. “A statement may be unpleasant, abusive, false, or

objectionable without being defamatory in light of the circumstances.” Campbell, 471

S.W.3d at 625.

      “Whether a publication is capable of a defamatory meaning is initially a

question for the court.” Turner, 38 S.W.3d at 114; Simmons v. Ware, 920 S.W.2d 438,

449 (Tex. App.—Amarillo 1996, no writ). To make this determination, courts should

consider whether the words used are reasonably capable of defamatory meaning by

considering how a person of ordinary intelligence would perceive the allegedly

defamatory statement as a whole. Bentley, 94 S.W.3d at 579; Musser v. Smith Protective

Servs., Inc., 723 S.W.2d 653, 654–55 (Tex. 1987).

      However, the Supreme Court of Texas has characterized some statements as

“defamation per se” when they are “so obviously hurtful to a plaintiff’s reputation

that the jury may presume general damages, including for loss of reputation and

mental anguish.” Hancock v. Variyam, 400 S.W.3d 59, 63–64 (Tex. 2013) (footnote

omitted). In this usage, “[a] statement that injures a person in her office, profession,

                                           35
or occupation is typically classified as defamatory per se.” Id. at 64. “[W]hether a

statement qualifies as defamation per se is generally a question of law.” Lipsky, 460

S.W.3d at 596.

      “Accusing someone of a crime, of having a foul or loathsome disease, or of

engaging in serious sexual misconduct are examples of defamation per se.” Id. Thus,

we hold that the statements that Fernandez is a “convicted robber” who “commite

[sic] robbery” and engaged in a “failed robbery” are false accusations of a crime and

are thus defamatory per se. See id.

      Therefore, we conclude that Fernandez has set forth clear and specific evidence

to support the second element of his defamation claims with regard to Elam’s

statements that he was “found guilty” of “robbery” and is a convicted “robber” and

Palmer’s statements that Fernandez engaged in a “failed robbery.” See Campbell, 471

S.W.3d at 627 (concluding defamation plaintiff satisfied his step-two burden under the

TCPA and established by clear and specific evidence that statements that “accused

[the plaintiff] of corruption in obstructing justice—were presented as objectively

verifiable” and thus defamatory).

      4. Third Element – Actual Malice

      Having concluded that these statements are defamatory, we now consider

whether Fernandez established clear and specific evidence of the third element of his

defamation claims—that Elam and Palmer acted with actual malice. See McLemore,

978 S.W.2d at 571; Simmons, 920 S.W.2d at 449.

                                         36
      In Schofield, our court recited the difference between actual malice in a

defamation context and malice in its ordinary context:

      As the supreme court explains, the concept of “actual malice” in the
      context of a defamation action is significantly different from the
      meaning commonly attributed to the word “malice”:

             Actual malice in a defamation case is a term of art. Unlike
             common-law malice, it does not include ill-will, spite, or evil
             motive. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). Rather,
             to establish actual malice, a plaintiff must prove that the
             defendant made the statement “with knowledge that it was false
             or with reckless disregard of whether it was true or not.” New
             York Times, 376 U.S. at 279–80, 84 S. Ct. 710[, 726]. Reckless
             disregard is also a term of art. To establish reckless disregard, a
             public official or public figure must prove that the publisher
             “entertained serious doubts as to the truth of his publication.” St.
             Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323[, 1325]
             (1968).

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

2017 WL 2180708, at *15; Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989). And,

recklessness is not the same as negligence but again requires a high degree of

awareness of probable falsity. 8 “Thus, the constitutional focus is on the defendant’s


      8
       One appellate court has explained reckless disregard as follows:

      “[The] reckless [disregard of the truth] is not measured by whether a
      reasonably prudent man would have published, or would have
      investigated before publishing.” St. Amant, 390 U.S. at 731, 88 S. Ct. at
      1325. “The standard is a subjective one—there must be sufficient
      evidence to permit the conclusion that the defendant actually had ‘a high
      degree of awareness of . . . probable falsity.’” Harte–Hanks Commc’ns, Inc.
      v. Connaughton, 491 U.S. 657, 688, 109 S. Ct. 2678, 2696 . . . (1989)
      (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 216 . . .
      (1964)). To demonstrate that a defendant made a statement with “a high

                                          37
attitude toward the truth, not his attitude toward the plaintiff.” Greer v. Abraham, 489

S.W.3d 440, 444 (Tex. 2016).

       Here, the only evidence Fernandez points to in support of actual malice is that

Appellants kept the defamatory statements posted on the Facebook group page for at

least one month after they had been served with a cease-and-desist letter. Fernandez

cites no authority to support the proposition that the failure to immediately comply

with a cease-and-desist letter is evidence of actual malice.9

       Moreover, upon examination, the cease-and-desist letter does not specifically

challenge the statements that Fernandez committed “robbery” and is a convicted

“robber” who was “found guilty” or that Fernandez engaged in a “failed robbery” but

       degree of awareness of probable falsity,” the plaintiff must show, not
       negligence on the part of the defendant in ascertaining the truth, but that
       the defendant had actual subjective doubt about the truthfulness of the
       statements. Id. at 688, 109 S. Ct. at 2696 (quoting St. Amant, 390 U.S. at
       731, 88 S. Ct. at 1325). A defendant’s negligent failure to investigate the
       veracity of his sources cannot constitute malice. Id. at 733, 88 S. Ct. at
       1326; Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 756 (Tex. 1984);
       Johnson v. [Sw.] Newspapers Corp., 855 S.W.2d 182, 188 (Tex. App.—
       Amarillo 1993, writ denied). A plaintiff’s allegation that the defendant
       was negligent in addressing the truth of a statement will be successful
       only when “the publisher’s allegations are so inherently improbable that
       only a reckless man would have put them in circulation [or when] there
       are obvious reasons to doubt the veracity of [his sources].” St. Amant,
       390 U.S. at 732, 88 S. Ct. at 1326.

Morris v. Dallas Morning News, Inc., 934 S.W.2d 410, 420 (Tex. App.—Waco 1996, writ
denied).
       9
        Although the specific date is not clear, the parties all appear to agree that the
posts were taken down from the Facebook group page between one and two months
after the cease-and-desist letter was sent to Appellants.

                                            38
instead focuses on the falsity of the allegations that Fernandez was a “convicted

criminal”:

      Specifically, you are publicizing that my client is a convicted criminal. That of
      course is false. Your actions are intended to hurt my client and are done
      with malevolence and with forethought.

             ....

      [P]ublicizing that my client is a criminal or has been convicted of committing a crime
      will not be tolerated. Your failure to [heed] this warning will almost
      certainly find one or all of you in a court of law.

               Demand is further made for you to remove, without delay, all
      references to my client being convicted of theft or convicted of any criminal act, from
      all web sites, internet locations as well as social media posts and any
      other form used to publicize these or similar statements as they are false.
      [Emphasis added.]

      Although we explained above why statements that Fernandez was convicted of

robbery were not substantially true even though statements that Fernandez was

convicted of theft were substantially true, we believe that the legal distinctions

between the two offenses are likely too technical to be known by reasonable people of

ordinary intelligence. See Scott, 2003 WL 22862806, at *1 n.1 (clarifying “that people,

not parks, are ‘robbed’” because the parties—who were represented by counsel—had

erroneously referred to an incident in which a skate park was “robbed”).

      Minett v. Snowden, a recent memorandum opinion from the Dallas Court of

Appeals, supports our conclusion. No. 05-18-00003-CV, 2018 WL 2929339, at *9

(Tex. App.—Dallas June 12, 2018, pets. denied) (mem. op.). In Minett, a candidate for

the local school board filed a defamation lawsuit against a defendant who made a

                                                39
Facebook post that stated the candidate had an undisclosed past criminal arrest and

conviction for serving alcohol to a minor. The defendant made a flyer that included

the assertion of an undisclosed past criminal arrest but also added a specific “inmate

number” for the candidate that the Facebook post did not contain, which indicated

that the school board candidate had also served time in jail. Id. at *1–2.

       The defendant filed a TCPA motion to dismiss, which the trial court denied.

Id. at *1. Although the Dallas Court of Appeals reversed in part with respect to the

Facebook post, it affirmed the denial of the TCPA motion to dismiss with respect to

the flyer because it had included the inmate number, which falsely conveyed the

meaning that the school board candidate had actually been incarcerated and assigned a

number as an inmate. Id. at *9. Indeed, the inmate number appeared to be made up

from whole cloth because while the school board candidate had been charged with

and found guilty of misdemeanor delivery of alcohol to a minor and sentenced to

thirty days in jail, his sentence was probated, and he never served any jail time. Id. at

*10. Thus, Minett concluded that the school board candidate set forth clear and

specific evidence of actual malice. See id.

       Had Appellants accused Fernandez of some obviously fabricated, wholly

unrelated offense, that could perhaps be clear and specific evidence of reckless

disregard for the truth to support actual malice. But, because theft and robbery are

characterized as “closely related” offenses, with the legal distinction between the two

likely unknown to the mind of a person of ordinary intelligence, Fernandez needed,

                                              40
but failed, to show that Appellants actually knew the difference between the two

offenses and still alleged that Fernandez had committed “robbery.” See Evans, 530

S.W.2d at 591. Indeed, “[a]n understandable misinterpretation of ambiguous facts

does not show actual malice.” Lane v. Phares, 544 S.W.3d 881, 891 (Tex. App.—Fort

Worth 2018, no pet.) (quoting Bentley, 94 S.W.3d at 596).

      Finally, to the extent that Fernandez complains that Elam and Palmer had a

duty to verify his communications before publishing them, “the ‘failure to investigate

fully,’ without more, is no evidence of actual malice.” Schofield, 2017 WL 2180708, at

*16 (quoting Bentley, 94 S.W.3d at 596). The failure to investigate will not rise to the

level of actual malice without proof that Elam and Palmer acted with purposeful

avoidance of the truth. Id. There is no clear and specific evidence in this record of

any purposeful avoidance by Elam and Palmer.10 See id.

      Thus, because Fernandez has failed to set forth clear and specific evidence that

Elam acted with actual malice when making the defamatory statements that

Fernandez committed “robbery” and is a “convicted robber” and that Palmer acted

with actual malice in stating that Fernandez engaged in a “failed robbery,” we hold

that the trial court erred by denying Appellants’ motion to dismiss Fernandez’s

      10
        Accordingly, we cannot agree with the dissent that Palmer’s declaration—in
which he stated that he knew that Fernandez had pleaded guilty to theft and in which
he acknowledged that he had inaccurately used the words “robber” and “robbery”
but that he removed the video as soon as he knew the characterization was
inaccurate—is clear and specific evidence of purposeful avoidance and actual malice.
Nor is the mere fact that Elam admits to posting the statements on Facebook clear
and specific evidence of purposefully avoiding the truth. See id.

                                          41
defamation claims. And, because Fernandez’s claim against Weber is derived wholly

from Weber’s position as the Facebook group administrator and the statements from

Elam and Palmer published therein, Fernandez has likewise failed to provide clear and

specific evidence to support his defamation claims against Weber.

      The dissent takes issue with our resolution because Appellants made statements

that do “not negate actual malice.” Again, we respect the dissent’s perspective but

respectfully disagree. First, Fernandez carried the burden to “establish[] by clear and

specific evidence a prima facie case for each essential element of the claim in

question.” See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). The dissent agrees that

one part of that burden was to establish that Appellants had made the statements with

actual malice.

      And again, we are not dealing with a situation in which Appellants made

statements that accused an innocent man of a crime he did not commit. Instead, we

must begin with the basic fact that Fernandez did confess to a crime. Appellants’

statements at times mischaracterized the crime but did so by a matter of degree. In

the dissent’s view, the lack of sensitivity to that matter of degree is evidence of actual

malice—indeed, none of the evidence that Fernandez offered suggested that

Appellants acted with awareness of this matter of degree. Instead, it appears that the

standard applied is that they should have known. But that is a negligence standard

and not an application of the principles of actual malice.



                                           42
      We understand that the consequence of denying a TCPA motion to dismiss is

that the lawsuit goes forward. But the legislature has decided that in certain classes of

legal actions, the plaintiff must clear hurdles of proof before the legal action can

proceed. The dissent does not disagree that Fernandez’s legal action fell within the

ambit of the TCPA and thus brought with it the consequence of clearing the hurdles

created by the legislature. We simply disagree with the dissent that Fernandez failed

to clear the hurdle of presenting prima facie proof of actual malice in the unique

circumstances of this case.

      Accordingly, we sustain Appellants’ second issue. 11

D. Claims not addressed in the TCPA motion to dismiss

      Although not addressed by the parties, we note that in addition to defamation,

Fernandez alleged a claim for IIED. He also filed a supplemental pleading in which

he added a claim for conspiracy. Appellants’ TCPA motion to dismiss did not

address either claim, nor does their brief on appeal.

      Our court has explained that simply because one claim may require dismissal

under the TCPA, it does not ipso facto require that dismissal be granted on other claims

not specifically addressed in the motion to dismiss. Cf. Ghrist, 2018 WL 3060331, at

*5 n.9 (“Each cause of action stands or falls on its own merit; there is no

bootstrapping effect for other causes of action that do not meet the criteria set forth

       Having sustained Appellants’ first and second issues regarding Fernandez’s
      11

defamation claims, we need not address Appellants’ third issue. See Tex. R. App. P.
47.1.

                                           43
in the [TCPA] statute”). Indeed, neither the TCPA nor cases interpreting it require

that we perform a search of the record to find clear and specific evidence of each

element of the plaintiff’s claims. See Cavin, 545 S.W.3d at 72 (dismissing claims when

the plaintiffs “have merely recited what they view as the essential elements of each

claim; cited en masse to pages of the record they deem relevant to some unspecified

element or elements of that claim; but provided no argument, analysis, or explanation

as to which record reference supports which elements or (perhaps more critically) why

that evidence would satisfy the specific element under the governing law”).

       Yet we recognize that in Adams, the Supreme Court of Texas recently reversed

an appellate court decision affirming the denial of a TCPA motion to dismiss based in

part on a party’s failure to preserve an argument by failing to specifically raise it in the

motion to dismiss. 547 S.W.3d at 896. The Adams court admonished that the

appellate court “imposed too strict a view of error preservation in this context” and

buttressed its position with reference to the TCPA’s directive that its applicability is to

be “based on a holistic review of the pleadings.” Id. at 896–97. As the Adams court

explained, once the defendant alleged in his motion that he was entitled to dismissal

of the plaintiff’s defamation claim because it was based on his right of free speech,

“[h]e was not required on appeal or at trial to rely on precisely the same case law or

statutory subpart that we now find persuasive.” Id. at 896.




                                            44
           With these decisions in mind, we consider whether Fernandez’s conspiracy and

IIED claims—although not addressed in Appellants’ motion to dismiss or the parties’

briefs—require dismissal under the TCPA.

           1. Conspiracy

           Our examination of Fernandez’s conspiracy claim reveals that it is derived

wholly from his defamation claims. That is, he essentially alleges that Appellees

engaged in a conspiracy to defame him.           Therefore, because we have already

concluded that Fernandez’s defamation claims require dismissal under the TCPA, we

likewise conclude that his conspiracy claim requires dismissal. See Schofield, 2017 WL

2180708, at *27 (“Because we find no clear and specific evidence that Howard and

Schofield committed defamation against Gerda, Gerda’s cause of action against

Schofield and Howard for conspiracy to commit defamation against him must also

fail.”).

           2. IIED

           IIED is viewed under Texas law as a “gap-filler” tort, created to permit

recovery in “those rare instances in which a defendant intentionally inflicts severe

emotional distress in a manner so unusual that the victim has no other recognized

theory of redress.” Hoffmann–La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex.

2004). Because this tort was never intended to provide plaintiffs an easier and

broader way to allege claims that are already addressed by our existing civil and

criminal laws, nor was it intended to replace or duplicate existing statutory or

                                            45
common law remedies, if the gravamen of a plaintiff’s complaint is another tort, “a

claim for [IIED] will not lie regardless of whether the plaintiff succeeds on, or even

makes the alternate claim.” Draker v. Schreiber, 271 S.W.3d 318, 322 (Tex. App.—San

Antonio 2008, no pet.). In this context, to maintain an IIED claim alongside a

defamation claim, the IIED claim must be supported by facts that are independent of

the factual allegations supporting the defamation claim. See id. at 323 (explaining that

“to maintain [an IIED claim], [the plaintiff] was required to allege facts independent

of her defamation claim” and then affirming dismissal for the plaintiff’s failure to

allege such independent facts).

      It appears that the gravamen of Fernandez’s complaint is defamation, and it is

possible that his IIED claim may ultimately be a recasting of his defamation claims.

Fernandez did, however, allege in his petition that Elam had harassed him by stopping

his car on the road in order to film him, which is a factual allegation independent of

the factual allegations supporting Fernandez’s defamation claims. And, Appellants do

not set forth any argument in their brief that Fernandez’s IIED claim implicates the

TCPA, that Fernandez failed to meet his burden under step two regarding his IIED

claim, or that Appellants have established by a preponderance of evidence each

element of an affirmative defense to Fernandez’s IIED claim.

      Therefore, although Fernandez’s allegations are scant, we cannot conclude that

the trial court erred by denying Appellants’ TCPA motion to dismiss on Fernandez’s

IIED claim because the issue was not raised either to the trial court or to this court on

                                           46
interlocutory appeal. See Spencer v. Overpeck, No. 04-16-00565-CV, 2017 WL 993093, at

*5 (Tex. App.—San Antonio Mar. 15, 2017, pet. denied) (mem. op.) (“Because the

Spencers do not raise any argument in their brief asserting Overpeck failed to

establish a prima facie case for each of the above-referenced elements of her [IIED]

claim, we hold the trial court did not err in denying the Spencers’ [TCPA] motion to

dismiss as to this claim.”). 12

E. Attorney’s Fees and Sanctions

       When appellate courts conclude that a trial court has erroneously denied a

TCPA motion to dismiss, they “generally remand the fee issue.” Tatum v. Hersh, 559

S.W.3d 581, 586 (Tex. App.—Dallas 2018, no pet.). Because we hold that the trial

court erred by denying Appellants’ TCPA motion to dismiss Fernandez’s defamation

claim, we remand for the trial court to consider the issue of attorney’s fees and

sanctions under section 27.009 of the civil practice and remedies code. See id.; Rich,

535 S.W.3d at 612; see also Tex. Civ. Prac. & Rem. Code Ann. § 27.009.

                                  VI. CONCLUSION

       We affirm in part and reverse and remand in part.           Having sustained

Appellants’ first and second issues with respect to Fernandez’s defamation and

conspiracy claims, we reverse the trial court’s order as to those claims and render


        We do not believe this conclusion puts us at odds with the supreme court’s
       12

admonition in Adams because the facts of the instant case are not of a defendant
refining his TCPA arguments on appeal but of Appellants’ complete failure to
challenge Fernandez’s IIED claim at any stage in this litigation.

                                         47
judgment dismissing Fernandez’s defamation and conspiracy claims pursuant to the

TCPA.

      Having concluded that Appellants wholly failed to address Fernandez’s IIED

claim, we affirm that part of the trial court’s order denying Appellants’ TCPA motion

to dismiss as to the IIED claim and remand the case for further proceedings

consistent with this opinion.

                                                    /s/ Dabney Bassel

                                                    Dabney Bassel
                                                    Justice

Delivered: March 28, 2019




                                         48
