Reversed and Rendered in Part, Affirmed as Modified in Part, Remanded, and
Opinion Filed February 6, 2020.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-17-00732-CV

       HARRIS COUNTY, TEXAS AND KEVIN VAILES, Appellants

                                       V.

       BARBARA COATS, INDIVIDUALLY, AS PERSONAL
    REPRESENTATIVE OF THE ESTATE OF JAMAIL AMRON,
  DECEASED, AND AS HEIR TO THE ESTATE OF JAMAIL AMRON,
DECEASED; AND ALI AMRON, INDIVIDUALLY AND AS HEIR TO THE
       ESTATE OF JAMAIL AMRON, DECEASED, Appellees

                   On Appeal from the 80th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2012-55551

                                OPINION

      In this civil rights action, a Texas county and a deputy constable appeal a
judgment following a jury verdict awarding wrongful death and survival damages.
Appellees and plaintiffs below, Barbara Coats and Ali Amron, asserted a section
1983 claim against Harris County and Harris County Constable Precinct Four
Deputy Kevin Vailes, alleging that the defendants’ unconstitutional conduct caused
the death of appellees’ son, Jamail Amron. A jury found that Deputy Vailes violated
Jamail’s Fourth Amendment rights to be free from excessive force and unreasonable
seizure. The jury also answered in appellees’ favor a series of questions submitted
to establish Harris County’s liability under 42 U.S.C. section 1983 and Monell.1 The
jury awarded (a) $1,000,000 in survival damages, (b) $10,000,000 in damages
resulting from Jamail’s death, and (c) $5,000 in exemplary damages against Deputy
Vailes. The jury apportioned responsibility for Jamail’s death 60% to Harris County,
20% to Deputy Vailes, and 20% to Jamail.

      Harris County and Deputy Vailes seek reversal and rendition of judgment, in
whole or in part, or a new trial. Appellees raise a cross-issue challenging the trial
court’s decision to reduce their recovery of survival damages by 20% because the
jury was not asked to apportion responsibility for Jamail’s pain and anguish.

      For reasons explained below, we hold the following.

      1.       Appellees did not establish that Deputy Vailes’s constitutional
               violations found by the jury were inflicted pursuant to an act or decision
               of a Harris County final policymaker responsible for the area of county
               business at issue. Thus, Harris County is not liable under section 1983
               for any damages.

      2.       Legally and factually sufficient evidence supports the jury’s findings
               that Deputy Vailes violated Jamail’s constitutional rights to be free
               from excessive force.



      1
          Monell v. New York City Dep’t of Social Servs., 436 U.S. 658 (1978).

                                                2
      3.     Deputy Vailes is not entitled to qualified immunity from the excessive
             force claim.

      4.     Appellees did not present legally sufficient evidence that Deputy
             Vailes’s constitutional violations found by the jury caused Jamail’s
             death.   Thus, Deputy Vailes is not liable under section 1983 for
             wrongful death damages.

      5.     Deputy Vailes’s jury charge error complaint does not entitle him to a
             new trial because any error is harmless.

      6.     Legally sufficient evidence supports the exemplary damage award
             against Deputy Vailes.

      7.     Based on this jury charge, the trial court erred in reducing appellees’
             recovery for pain and mental anguish damages by 20%.

      We reverse the judgment against Harris County and render judgment that
appellees take nothing from Harris County. We reverse the portion of the judgment
awarding wrongful death damages to appellees and render judgment that appellees
take nothing from Deputy Vailes for damages resulting from Jamail’s death. We
modify the portion of the judgment awarding pain and mental anguish damages to
provide that Coats, as personal representative of Jamail’s estate, recover from
Deputy Vailes $1,000,000 awarded by the jury for those damages, and we affirm as
modified that part of the judgment. We additionally affirm the portion of the
judgment awarding appellees $5,000 in exemplary damages against Deputy Vailes.
Finally, in light of the reduction in damages, we remand the attorney’s fee award to
the trial court for redetermination. See Tex. R. App. P. 43.3.




                                          3
                                   Background

      In September 2010, Jamail and his girlfriend were using cocaine in her
apartment when he began feeling ill. Worried that the cocaine was “bad,” Jamail
left the apartment through a bedroom window to call for help. At 1:40 a.m., he called
911 from a public phone located on the apartment complex property. He told the
operator that he had taken too many muscle relaxers and was having difficulty
breathing. The operator dispatched an ambulance with two emergency medical
technicians (“EMTs”), Sean Richardson and William May, for an “unknown
possible drug overdose.” For safety purposes, the operator placed a call for police
back-up and instructed the EMTs to wait for law enforcement to arrive.

      As the EMTs waited near the apartment complex, Richardson saw Jamail
climb the fence and approach the ambulance, where Richardson spoke with him.
Richardson described Jamail as distressed, extremely anxious, sweating, and
hyperventilating. Jamail asked if the EMTs were there to help him. Jamail told
Richardson that he had taken cocaine, that he thought there was “something in” it,
and that he was afraid he would die.         Richardson asked Jamail to allow an
examination in the ambulance, but Jamail refused and ran toward a nearby Burger
King restaurant.

      The parties’ descriptions of subsequent events vary significantly. Appellees’
trial evidence centered on the testimony of Cindy Lansdale, a Burger King assistant
manager working that night. As Lansdale closed out cash registers, she heard
someone bang on a window. Outside she saw Jamail, wearing only shorts and a
shirt. Jamail said he did not feel good and asked for a cup of water. She directed
Jamail to the drive-through window. Lansdale described Jamail as hyperventilating,
but he was otherwise calm, kind, respectful, and clear-spoken. Lansdale gave Jamail



                                         4
a cup of water, which he drank while sitting on the ground near the drive-through
window. He asked Lansdale to keep an eye on him because he did not feel well.

       Meanwhile, Harris County Precinct Four Deputy Bryan Saintes responded to
the call for back-up and arrived on the scene. Deputy Saintes spoke with the EMTs,
who told him that Jamail ran to the Burger King. Watching events from inside the
drive-through window, Lansdale saw Deputy Saintes drive to the restaurant and park
his vehicle ten to twelve feet from the window. Deputy Saintes cuffed Jamail’s
hands behind his back and walked him toward the ambulance. Jamail did not resist,
but Lansdale heard him say, “I didn’t do anything.” Within two minutes after they
reached the rear of the ambulance, Jamail became combative, broke away, and,
hands still cuffed, ran back toward the drive-through window. Deputy Saintes
pursued Jamail, and the two struggled as the deputy attempted to hold Jamail against
the driver’s side of the patrol vehicle. At that time, Precinct Four Deputies Jason
Reese and Kevin Vailes, as well as Precinct Four Corporal Mary Haver, arrived as
back-up, and they immediately assisted Deputy Saintes in the struggle. Shortly, all
four officers were holding Jamail against the vehicle.

       Lansdale then saw Richardson approach and stand next to Deputy Saintes. As
an officer held Jamail, Richardson gave Jamail an injection in his shoulder. Jamail
immediately collapsed into the officer’s arms and fell to the ground, where he laid
on his back with his eyes closed. Lansdale saw Deputy Reese place his foot on
Jamail’s calf muscles, while Corporal Haver “kick-tapped” his body as if she was
“checking his body functions.” Meanwhile, as Lansdale described, Deputy Vailes
placed his police boot across Jamail’s nostrils and mouth and pressed down with
enough force so “that the arch of the neck was going flat along with the asphalt.” 2

       2
          Another Burger King worker said in a written statement that one of the officers “placed
his foot on [Jamail’s] face.”

                                               5
While Jamail was on the ground, Lansdale did not hear him make noises or see him
move, and his eyes were closed. Lansdale walked away from the drive-through
window for about two to five minutes. When she returned to the window and looked
out, she again saw Deputy Vailes’s boot over Jamail’s nose and mouth. Lansdale
then stepped away from the window for approximately fifteen to twenty minutes.
Lansdale saw no further interactions between Jamail, the deputies, and the EMTs.
When she returned to the window a third time, Jamail was gone.

       The officers and EMTs, for their part, generally agreed that Deputy Saintes
was struggling to restrain Jamail when Deputies Reese and Vailes arrived at the
scene, and that the group forced Jamail to the ground. Deputy Vailes denied that he
placed his boot over Jamail’s nose and mouth. Deputy Vailes said that he placed his
knee, and then his foot, beside Jamail’s head and put his hand on Jamail’s forehead
because—in contrast to Lansdale’s description that Jamail appeared to be “dead or
in a coma”—Jamail was banging his head and thrusting his torso up while trying to
kick, spit, and bite the medical personnel and the deputies. While Jamail was
restrained on the ground, Richardson said he administered two milligrams of a
sedative, Versed. Because Jamail continued to struggle, Richardson administered a
second two milligram dose of Versed, and Jamail “settled down” a few seconds later.

       Deputy Vailes walked to his patrol vehicle, while the other deputies and EMTs
rolled Jamail on his side and added extra sets of handcuffs so they could place a
backboard behind him.          At that time, Jamail was seen “breathing heavily.”
Richardson, May, and Deputy Reese noted that Jamail was breathing when they
rolled him to his side.3 Deputy Reese also heard Jamail making noises. May
described Jamail as “very calm and breathing normally.” After the backboard was

       3
          Richardson stated that Jamail had an “open airway,” and Richardson watched “the rise
and fall of his chest.”

                                              6
in place, the deputies and the EMTs lifted Jamail onto a stretcher. Then, Deputy
Reese commented that Jamail looked pale and asked the EMTs if Jamail was
breathing. One of the EMTs checked and said he was. Corporal Haver noticed that
Jamail’s breathing was shallow. She also asked the EMTs if Jamail’s breathing was
okay, and the EMT told her that the sedative they administered had taken effect. At
Deputy Reese’s request, an EMT checked Jamail’s airway and said it was “good.”
After Jamail was placed on the stretcher and while being wheeled toward the
ambulance, Richardson heard “snoring respirations” and observed that Jamail had
“turned pale and was presenting with agonal respirations which are deep, labored
respirations.” May agreed that they “may have a problem.” By the time the EMTs
reached the ambulance, Richardson noticed that Jamail had stopped breathing; when
he checked for a pulse, he could not find one and “identified that [Jamail] was in
cardiac arrest at that time.” The EMTs suctioned a small amount of “emesis” from
his mouth, performed CPR on him, and transported him to a nearby hospital. Efforts
to resuscitate Jamail proved unsuccessful, and he was pronounced dead at the
hospital. After an investigation, the Harris County Sheriff’s Office ruled Jamail’s
death accidental.

      None of the deputies recorded any part of the encounter and no nearby security
camera video was introduced.

      Jamail’s parents, individually and as representatives and heirs of Jamail’s
estate, filed the present suit against Richardson, Mays, Cypress Creek Emergency
Medical Services (Richardson’s and May’s employer), Deputies Vailes, Saintes, and
Reese, Corporal Haver, Harris County Precinct Four Constable’s Office, and Harris
County. Appellees alleged that the defendants violated Jamail’s constitutional rights




                                         7
and sought recovery under section 1983. See 42 U.S.C. § 1983.4 Appellees’ central
allegation was that Deputy Vailes suffocated Jamail with his boot. The EMTs and
Cypress Creek settled before trial. The trial court dismissed on qualified immunity
grounds all claims against the law-enforcement defendants other than Deputy Vailes,
and the court dismissed the Precinct Four Constable’s Office on jurisdictional
grounds. At the time of trial in April 2017, only Deputy Vailes and Harris County
remained as defendants.

       After a three-week trial, the jury returned a verdict against Deputy Vailes and
Harris County. The jury found that Jamail sustained an injury resulting directly from
Deputy Vailes’s use of excessive force that was objectively unreasonable, and that
Deputy Vailes unreasonably seized Jamail. As to Harris County, the jury found that:

       (a) a final policymaker for the county acted with deliberate indifference to a
       policy that was the moving force behind the violation of Jamail’s
       constitutional rights to be free from excessive force and unreasonable seizure;

       (b) at the relevant time, Harris County Constable Precinct Four had a verbal
       policy that prohibited an officer from using his or her feet as a form of use of
       force unless the life of the officer is threatened;

       (c) a final policymaker for the county acted with deliberate indifference to the
       verbal policy regarding use of feet and that such policy was the moving force
       behind the violation of Jamail’s constitutional rights to be free from excessive
       force and unreasonable seizure;

       (d) a final policymaker for the county failed to train law enforcement officers
       adequately and was deliberately indifferent to the consequences of such


       4
          Section 1983 provides a private right of action in tort against persons acting under color
of state law who violate rights secured by federal law. See 42 U.S.C. § 1983.

                                                 8
      failure;

      (e) a final policymaker for the county failed to supervise law enforcement
      officers adequately and was deliberately indifferent to the consequences of
      such failure; and

      (f) a final policymaker for the county ratified Deputy Vailes’s conduct that
      violated Jamail’s constitutional rights to be free from excessive force and
      unreasonable seizure.

      The jury awarded appellees $1,000,000 for Jamail’s pain and mental anguish;
$10,000,000 resulting from Jamail’s death; and $5,000 in exemplary damages
against Deputy Vailes. In apportionment questions relating to the death damages
only, the jury apportioned 60% fault for Jamail’s death to Harris County, 20% to
Deputy Vailes, and 20% to Jamail. The trial court signed a judgment based on the
verdict, except the court reduced appellees’ recovery for Jamail’s pre-death pain and
mental anguish by 20%. The judgment grants appellees recovery of 20% of all
compensatory damages against Deputy Vailes and Harris County jointly and
severally, plus an additional sum equal to 60% of all compensatory damages against
Harris County only, plus exemplary damages against Deputy Vailes, plus attorneys’
fees under 42 U.S.C. § 1988.5

                                       Issues Presented

      In its first two issues, Harris County challenges its section 1983 liability on
several grounds. Most stem from the basic premise that appellees’ damages did not
result from constitutionally deficient policies adopted by a county official vested
with, or to whom was delegated, final policymaking authority for Harris County as
to law enforcement. In its third issue, the county argues that it did not cause Jamail’s

      5
          All damages against Deputy Vailes are in his individual capacity.

                                                9
death. Finally, the county challenges the legal and factual sufficiency of the
evidence supporting the jury’s finding that the county is 60% at fault for Jamail’s
death.

         Deputy Vailes contends that:       (1) the evidence is legally and factually
insufficient to support the jury’s findings that he used excessive force or
unreasonably and intentionally seized Jamail; (2) he is entitled to qualified immunity
as a matter of law; (3) the trial court erred in denying his motions to modify or reform
the judgment or grant a new trial; (4) appellees presented no evidence that Jamail
died of suffocation rather than acute cocaine toxicity; (5) the trial court improperly
charged the jury on unreasonable seizure because that question was effectively a
double submission of excessive force; and (6) the punitive damages award is not
supported by legally or factually sufficient evidence.

         In a single cross-issue, appellees contend that the trial court erred in reducing
Jamail’s survival damages based on the proportionate responsibility findings
because those findings applied only to the death damages, and the jury was not asked
to apportion responsibility for survival damages.

                                         Analysis

         Title 42 U.S.C. section 1983 provides in relevant part:

         Every person who, under color of any statute, ordinance, regulation,
         custom, or usage, of any State . . . subjects, or causes to be subjected,
         any citizen of the United States or other person within the jurisdiction
         thereof to the deprivation of any rights, privileges, or immunities
         secured by the Constitution and laws, shall be liable to the party injured
         in an action at law, suit in equity, or other proper proceeding for
         redress. . . .

42 U.S.C. § 1983. We apply federal substantive law and state procedural law when
reviewing a claim brought under a federal statute. In re GlobalSanteFe Corp., 275

                                             10
S.W.3d 477, 485 (Tex. 2008). The federal statute at issue, section 1983, is “not a
source of substantive rights” but creates a cause of action against state actors to
enforce those rights. Escobar v. Harris County, 442 S.W.3d 621, 629 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (citing Graham v. Connor, 490 U.S. 386, 393-94
(1989); City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994)). A section
1983 claimant must show that a person acting under color of state law deprived the
claimant of rights, privileges, or immunities secured by the Constitution or laws of
the United States. See Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part
on other grounds, Daniels v. Williams, 474 U.S. 327, 331-32 (1986). Individual
government actors and, in certain circumstances, local governments can be
“persons” subject to section 1983 liability. See Howlett v. Rose, 496 U.S. 356, 375
(1990); Monell, 436 U.S. at 694. Appellees secured a judgment under section 1983
against both Harris County and Deputy Vailes. We first consider the county’s
arguments.

A.    Harris County

      1.      Local government liability under section 1983

      The Supreme Court held in Monell that a local government is liable under
section 1983 for its policies that cause constitutional torts. Monell, 436 U.S. at 694;
see also McMillian v. Monroe County, 520 U.S. 781, 784-85 (1997). For liability to
attach, a local government must itself subject a person to a deprivation of rights or
cause a person to be subjected to such a deprivation through official action or
imprimatur. See Connick v. Thompson, 563 U.S. 51, 60-61 (2011); Pembaur v.
Cincinnati, 475 U.S. 469, 479 (1986) (local governments responsible only for “their
own illegal acts”); Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
Isolated unconstitutional actions by local government employees will almost never
trigger employer liability because local government employers are not vicariously

                                          11
liable under section 1983 for their employees’ unconstitutional or illegal acts. See
Monell, 436 U.S. at 691; Piotrowski, 237 F.3d at 578.

      To establish local government liability under section 1983, a claimant must
prove three critical elements:      an official policy, promulgated by the local
government unit’s policymaker, that was the “moving force” behind the violation.
See Culbertson v. Lykos, 790 F.3d 608, 628 (5th Cir. 2015); Piotrowski, 237 F.3d at
578 (citing Monell, 436 U.S. at 694). These three principles are “necessary to
distinguish individual violations perpetrated by local government employees from
those that can be fairly identified as actions of the government itself.” Piotrowski,
237 F.3d at 578. Generally speaking, for instance, when a municipal official follows
or executes an unconstitutional municipal policy and thereby causes injury, section
1983 municipal liability may result; whereas, when a municipal official causes injury
by violating a person’s constitutional rights, but does so contrary to a constitutional
municipal policy, section 1983 municipal liability will rarely if ever result. The
former circumstance illustrates the local government’s acts; the latter illustrates only
the employee’s.

      An official government policy can be proven in more than one way. It
includes: (1) official decisions promulgated by a local government’s lawmaking
body; (2) longstanding practices so persistent and widespread as to fairly represent
government policy or the force of law; and (3) the acts or policies of officials who
by law or delegation possess final policymaking authority for the local government
concerning the action alleged to have caused the particular constitutional or statutory
violation at issue. See Pembaur, 475 U.S. at 480-81; Monell, 436 U.S. at 691;
Adickes v. S.H. Kress & Co., 398 U.S.144, 167-68 (1970); Culbertson, 790 F.3d at
628; Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc).
Moreover, a municipality may be held liable for a single act or decision of a final

                                          12
policymaker, as when a municipality’s properly constituted legislative body
approves and executes a single unconstitutional decision. See Jett v. Dallas Indep.
Sch. Dist., 491 U.S. 701, 737 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112,
123 (1988) (plurality opinion); Pembaur, 475 U.S. at 480.                        But even when
accountability is sought based on a single act, “municipal liability under § 1983
attaches where—and only where—a deliberate choice to follow a course of action is
made from among various alternatives by the official or officials responsible for
establishing final policy with respect to the subject matter in question.” Pembaur,
475 U.S. at 483.

       Appellees sought to establish Harris County’s liability through at least one of
five independent questions. The jury answered all five questions in appellees’ favor.
Although the county attacks each question on multiple grounds, the county’s
challenge to the policymaker element is common to all theories and dispositive of
Harris County’s appeal, so we address only that issue. See Tex. R. App. P. 47.1.

       Each liability question required appellees to identify a final policymaker for
Harris County concerning the violation at issue, which the county says was not
done.6 Regarding policymakers in the section 1983 context, our task is to “identify
those officials or governmental bodies who speak with final policymaking authority
for the local governmental actor concerning the action alleged to have caused the
particular constitutional or statutory violation at issue.” McMillian, 520 U.S. at 784-
85; see Pembaur, 475 U.S. at 482-83. Our inquiry is informed by well-known
principles. First, we must ask whether a particular official or body is a final
policymaker for the local government “in a particular area” or “on a particular issue.”


       6
          Harris County preserved its argument in the trial court by objecting to the relevant charge
instruction and asserting in post-trial motions that elected constables are not final policymakers
for the county.

                                                 13
McMillian, 520 U.S. at 785. An official may be a final policymaker with respect to
some areas but not others. See Pembaur, 475 U.S. at 483 n.12; Harris County v.
Nagel, 349 S.W.3d 769, 786 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).

      Second, whether a local government official is a final policymaker in a
particular area is a question of state law. McMillian, 520 U.S. at 786; Jett, 491 U.S.
at 737; Praprotnik, 485 U.S. at 123; Nagel, 349 S.W.3d at 786. State law always
should direct us “to some official or body that has the responsibility for making law
or setting policy in any given area of a local government’s business,” Praprotnik,
485 U.S. at 125, and the trial court must identify that official or body for the jury.
Jett, 491 U.S. at 737. We may not assume that final policymaking authority lies in
some entity or person other than where state law places it. See Praprotnik, 485 U.S.
at 126. Additionally, authority to make local government policy may be granted
directly by a legislative enactment or may be delegated by an official or body
possessing such authority. See id. at 124; Pembaur, 475 U.S. at 483; Nagel, 349
S.W.3d at 794 (concluding commissioners court delegated responsibility and
allocated funds for executing mental health warrants county-wide to single constable
precinct); see also City of Houston v. Aspenwood Apartment Corp., No. 01-97-
01378-CV, 1999 WL 681939, *7 (Tex. App.—Houston [1st Dist.] Aug. 27, 1999,
pet. denied) (not designated for publication).

      Third, policymaking authority encompasses more than discretionary
authority.   One who speaks with final policymaking authority for the local
government is effectively one who “takes the place of the governing body in a
designated area of city administration.” Webster v. City of Houston, 735 F.2d 838,
841 (5th Cir. 1984). Such a person decides the goals for a particular city or county
function, devises the means of achieving those goals, acts in the place of the
governing body in the area of delegated responsibility, and is not supervised except

                                         14
as to the totality of performance. Bennett v. City of Slidell, 728 F.2d 762, 769 (5th
Cir. 1984). In contrast, that a particular official—even a policymaking official—has
discretion to exercise particular functions does not automatically give rise to local
government liability based on the exercise of that discretion. See Pembaur, 475 U.S.
at 481-83; Bennett, 728 F.2d at 769; City of Houston v. Leach, 819 S.W.2d 185, 199
(Tex. App.—Houston [14th Dist.] 1991, no writ).

       To the extent the policymaker question turns solely on questions of law, we
apply de novo review. E.g., Godoy v. Wells Fargo Bank, N.A., 575 S.W.3d 531, 536
(Tex. 2019). We agree with appellees, however, that when it is alleged that a final
policymaker received authority by delegation from the relevant lawmakers, whether
and to what extent delegation in fact occurred may involve evidence. See Nagel,
349 S.W.3d at 794. We apply traditional evidentiary sufficiency review standards
to such determinations when they are present and challenged. See id. (applying legal
sufficiency review to commissioners court delegation of authority to constable).

       2.     Application

       Over Harris County’s objection, the trial court instructed the jury that “Harris
County Precinct Four Constable Ron Hickman had final policymaking authority
from Defendant Harris County concerning the act(s) at issue.” Harris County
contests the assertion because it contravenes state law and because constables act for
the state, not the county, in law enforcement matters.7

       At the outset, we consider the particular area of local government at issue.
McMillian, 520 U.S. at 785. The policies appellees contend were at the heart of the


       7
         The county also complains of a separate instruction, which allowed the jury to find that
any constable other than Constable Hickman could also be a Harris County policymaker. We need
not address the point, however, because on appeal appellees contend that only Constable Hickman
was the final policymaker for Harris County in the relevant area.

                                               15
violations, and for which they say the Precinct Four Constable is solely responsible,
are law enforcement policies. Appellees’ claim is based on use of force policies
contained in the Precinct Four Constable Policy and Ethics Manual. For example,
in the jury charge appellees specifically identified key policies from the manual,
such as the sections concerning “Necessary Force in Making Arrests,” “Use of
Force,” and “Policy for Deadly Force.” These policies form the focal point of
appellees’ argument that Deputy Vailes applied constitutionally excessive force in
placing his foot on Jamail’s face. Additionally, the function Deputy Vailes was
performing at the time of the violation was a law enforcement activity. Providing
safety back-up, he arrived on the scene to find a person in handcuffs engaged in a
struggle with another officer. We thus conclude that the local government area in
question is fairly characterized as law enforcement.

      Next we examine whether, in a county consisting of more than one constable
precinct, state law establishes that a single constable is a final policymaker for that
county in the area of law enforcement. See McMillian, 520 U.S. at 786 (state law
controls policymaker inquiry); Jett, 491 U.S. at 737; Nagel, 349 S.W.3d at 786. To
be a final policymaker for a county, a constable must occupy a relationship to the
county such that his or her “edicts or acts may fairly be said to represent official
county policy.” Rhode v. Denson, 776 F.2d 107, 108 (5th Cir. 1985), cert. denied,
476 U.S. 1170 (1986). A policymaker not only governs conduct but decides goals
for a particular local government function and devises means of achieving those
goals. See id. at 110 (citing Bennett, 728 F.2d at 769).

      The principal organ of county government in Texas is the commissioners
court. Comm’rs Court of Titus Cty. v. Agan, 940 S.W.2d 77, 79 (Tex. 1997) (citing
Tex. Const. art. V, § 1). The Texas Constitution requires the commissioners court
of each county over a certain population to divide the county into no less than four

                                          16
but not more than eight geographic precincts. Tex. Const. art. 5, § 18. The voters
of each precinct elect one constable for that precinct. Id.; Merritt v. Harris County,
775 S.W.2d 17, 24 (Tex. App.—Houston [14th Dist.] 1989, writ denied). Harris
County has eight constable precincts and thus eight constables. See Harris County
Constable        Precincts,        http://www.harriscountytx.gov/Government/Law-
Enforcement/Harris-County-Constable-Precincts (last visited January 9, 2020); see
also Maxon v. Franz, 525 S.W.2d 714, 714 (Tex. App.—Houston [14th Dist.] 1975,
writ ref’d n.r.e.). A constable’s general powers and duties include attending justice
court in the precinct and executing and returning processes, warrants, and precepts.
Tex. Loc. Gov’t Code § 86.021. A constable is also authorized to perform other acts
as established by law, such as those permitted or required to be performed by “peace
officers.” Tex. Code Crim. Proc. art. 2.12(2) (constables are peace officers). As
peace officers, constables have the duty “to preserve the peace within the officer’s
jurisdiction,” with authority to “use all lawful means” to effect that purpose. Id. art.
2.13(a). A peace officer’s primary law enforcement duties include: (1) interfering
without warrant to prevent or suppress crime; (2) executing all lawful processes; (3)
notifying magistrates of offenses committed within the officer’s jurisdiction; and (4)
arresting offenders when authorized by law. See id. art. 2.13(b). Generally a peace
officer’s law enforcement authority is limited to the officer’s geographic
jurisdiction, but constables may perform any express statutory duties anywhere
within the county in which the constable’s precinct is located (including within other
precincts) and may additionally serve civil processes in contiguous counties. See
Tex. Loc. Gov’t Code § 86.021(c), (d); see also Tex. Att’y Gen. Op. No. GA-0189,
at *3 (2004). Commissioners courts must compensate constables, but they cannot
remove them. Tex. Const. art. 16, § 61. Only district courts may remove constables
from office and then only for limited, specific reasons. Tex. Const. art. 5, § 24; Tex.
Loc. Gov’t Code § 87.013. In the event of removal, however, the commissioners
                                          17
court may fill a constable vacancy. Tex. Loc. Gov’t Code § 87.041(a)(10). If an
elected constable wants to appoint a deputy, he must apply to the county’s
commissioners court and show the deputy is needed to properly handle the business
of the constable’s office that originates in the precinct. Id. § 86.011(a). The
commissioners court must approve and confirm the appointment only if it
determines that the constable needs a deputy. Id. The constable is then responsible
for the official acts of each deputy. Id. § 86.011(c).

      Appellees emphasize that a constable’s law enforcement jurisdiction extends
to the entire county. Tex. Loc. Gov’t Code § 81.021(c); see also Tex. Att’y Gen.
Op. No. GA-0189 at *4 (2004). We are not convinced, however, that a constable’s
jurisdictional reach can support the trial court’s conclusion that the Precinct Four
Constable is a law enforcement final policymaker for Harris County. A constable’s
state-given authority and discretion to perform law enforcement tasks within a
county-wide geographic area does not equate to authority to define law enforcement
goals and means of achieving those goals for that county. To the extent law
enforcement jurisdictional reach is relevant, it certainly is not a weighty factor in the
policymaker inquiry because constables may perform law enforcement tasks outside
of their respective counties. See Tex. Loc. Gov’t Code § 86.021(c), (d). Here, the
Precinct Four Constable Office’s civil process service jurisdiction extends not only
to the boundaries of Harris County but to its seven contiguous counties—Fort Bend,
Brazoria, Galveston, Chambers, Liberty, Montgomery, and Waller. No one could
reasonably argue that Constable Hickman is a final policymaker for law enforcement
in Galveston County merely because he is authorized to perform certain law
enforcement functions there.

      More persuasive is appellees’ reliance on state law describing the control
certain county officials possess over matters within their sphere of authority. Each

                                           18
county elected official “has the sphere that is delegated to him by law and within
which the Commissioners Court may not interfere or usurp.” Pritchard & Abbott v.
McKenna, 350 S.W.2d 333, 335 (Tex. 1961). An elected county official’s exclusive
sphere of authority consists of the officer’s core duties under the Texas Constitution
and statutes. See Griffin v. Birkman, 266 S.W.3d 189, 197 (Tex. App.—Austin 2008,
pet. denied). Appellees cite Texas Attorney General Opinion GA-0994, in which
the Attorney General opined that a county commissioners court probably lacks
authority to approve or disapprove the county sheriff’s office policy manual. In
support of the opinion, the Attorney General stated that county officers such as a
Texas sheriff hold “virtually absolute sway over the particular tasks or areas of
responsibility entrusted to [them] by state statute.” Tex. Atty Gen. Op. No. GA-
0994, at *1 (citing Hooten v. Enriquez, 863 S.W.2d 522, 531 (Tex. App.—El Paso
1993, no writ) (citing Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.
1980))).

       Appellees contend the same is true for constables, as they too are county
officers.8 Some evidence supports appellees’ position that constables have ultimate
responsibility within their precincts for matters entrusted to them by law. The policy
manual states that Constable Hickman is the chief executive for the Precinct Four
Constable department. Constable Hickman testified that he is the “number one guy”
in the Precinct Four Constable’s Office as to constable policies, which are not subject
to review by “higher authority” and are not reviewed by the sheriff. Other county




       8
          Tex. Const. art. 5, § 24; art. 16, § 61; see also Tex. Loc. Gov’t Code § 87.012(12)
(identifying constables as county officers); id. § 152.001 (county officers may be paid from county
general fund or from other funds available for that purpose).

                                                19
representatives confirmed that Constable Hickman had ultimate responsibility for
Precinct Four Constable policies.

       Though the trial court could have credited Constable Hickman’s testimony, it
is nonetheless insufficient to support the court’s instruction. Constable Hickman has
the final word in Precinct Four as to office policies, and by extension one could also
infer that each of the eight constables in Harris County is responsible for policies in
his or her separate precinct. Appellees’ burden, however, was to identify a final
policymaker who speaks on law enforcement matters for the local government unit
at issue—Harris County. Appellees direct us to no authority or evidence showing
that Constable Hickman had policymaking authority over any precinct other than
Precinct Four or over the county as a whole. No Texas state court has ever held that
a constable in a single precinct is the county’s final policymaker for law
enforcement. State and federal courts construing Texas law have long held that the
sheriff is a county’s final policymaker as to law enforcement for purposes of county
liability under section 1983.9 To be sure, policymaking authority in areas of county
business may be shared among more than one official,10 but accepting appellees’
view would result in nine law enforcement final policymakers for all of Harris
County: the county sheriff and all eight constables. In any event, Hickman’s
testimony is not controlling on the issue whether, as a matter of state law, he was the
final policymaker for Harris County on law enforcement. Frank v. Harris County,


       9
         See County of El Paso v. Dorodo, 180 S.W.3d 854, 869 (Tex. App.—El Paso 2005, pet.
denied); Robinson v. Hunt County, 921 F.3d 440, 448 (5th Cir. 2019); Jackson v. Ford, 544 F.
App’x 268 (5th Cir. 2013) (“[I]n Texas, ‘[t]he sheriff is without question the county’s final
policymaker in the area of law enforcement.’” (quoting Colle v. Brazos County, 981 F.2d 237, 244
(5th Cir. 1993))); James v. Harris County, 577 F.3d 612, 617 (5th Cir. 2009); Turner v. Upton
County, 915 F.2d 133, 136-37 (5th Cir. 1990) (citing Familias Unidas v. Briscoe, 619 F.2d 391,
404 (5th Cir. 1980)).
       10
            Praprotnik, 485 U.S. at 126.

                                              20
118 F. App’x 799, 802 (5th Cir. 2004). His testimony cannot make it so when the
people of Texas have not granted him that authority through the constitution or
statute.

         A constable’s position as a county officer or elected official is insufficient as
well. An elected constable may be a county agent, but that status does not bring the
person within the necessarily circumscribed group of people whose “edicts or acts
may fairly be said to represent official county policy.” Rhode, 776 F.2d at 108. As
Precinct Four Constable, Constable Hickman was not one who “takes the place of
the governing body in a designated area of [county] administration.” Webster, 735
F.2d at 841; see Bowden v. Jefferson County, 676 F. App’x 251, 256 (5th Cir. 2017)
(“As the constable of one out of eight precincts in Jefferson County, Saleme may
have been a decision maker for a single precinct, but he was not a policymaker for
all of Jefferson County.”). We therefore conclude that the state constitution and
relevant state and local laws do not vest a precinct constable in Harris County with
final policymaking authority over law enforcement for the county.

         Though federal courts’ interpretation of state law is not binding on us,11 we
note that the Fifth Circuit has independently reached the same conclusion. Since
1985, that court has held repeatedly that a precinct constable is not a final
policymaker for a Texas county in the area of law enforcement. See Castro v.
McCord, 259 F. App’x 664, 668 (5th Cir. 2007); Keenan v. Tejeda, 290 F.3d 252,
263 (5th Cir. 2002); Bowles v. Cheek, 44 F. App’x 651 (5th Cir. 2002); Pena v.
Jimenez, 31 F. App’x 833 (5th Cir. 2002); Sorrells v. Warner, 21 F.3d 1109 (5th Cir.
1994); Rhode, 776 F.2d at 108-09 (reversing judgment against the county for
constable’s unconstitutional acts during attempted arrest). Federal district courts

         11
              See Stanley v. Reef Sec., Inc., 314 S.W.3d 659, 677 n.4 (Tex. App.—Dallas 2010, no
pet.).

                                                 21
within the circuit are in accord, including, as relevant, in excessive force suits. See,
e.g., Gremar v. Bexar County, Tex., No. SA-13-CV-434-XR, 2014 WL 906796, at
*2 n.1 (W.D. Tex. Mar. 7, 2014); Birge v. Harris County, No. 4:09-CV-660, 2009
WL 10693565, at *2 (S.D. Tex. May 21, 2009) (constable not county policymaker
in excessive force suit); Ramos v. Lucio, No. B-08-122, 2008 WL 11503546, at *3
(S.D. Tex. Sept. 25, 2008) (in excessive force case resulting from death of hog-tied
suspect, court held precinct constable not county’s final policymaker for law
enforcement); Drain v. Galveston County, 979 F. Supp. 1101, 1103 (S.D. Tex. 1997)
(shooting during arrest).

      Our conclusion does not end the inquiry, however, because those in whom
state law vests policymaking power may delegate it to particular local government
officials, a question we addressed in Nagel. There we considered Harris County’s
section 1983 liability for a constable’s (or deputy’s) unconstitutional conduct.
Nagel, 349 S.W.3d at 792-94. We held that the Harris County Precinct One
Constable was Harris County’s final policymaker concerning the manner in which
mental health warrants were executed. Id. at 791. The evidence in Nagel showed
that the commissioners court had delegated to a single constable precinct
policymaking authority—and concomitant county funds to exercise the authority
delegated—to serve all mental health warrants county-wide since the early 1970s.
Id. at 793-94. The evidence in Nagel showed that the Harris County commissioners
court, through its budgeting process, allocated funds and responsibility for serving
mental health warrants to a single precinct and, accordingly, “the County effectively
designated the constable of that precinct as the final policymaker concerning the
manner in which those warrants were served.” Id. at 794.

      Appellees say Nagel controls and the Precinct Four Constable is the county
policymaker for law enforcement because the county impliedly delegated that

                                          22
authority to him. Appellees point us to testimony discussed above that Constable
Hickman had the last word on department policies. But this is not evidence that the
Constable of Precinct Four “takes the place of the governing body” with respect to
law enforcement in Harris County. Webster, 735 F.2d at 841. In contrast to Nagel,
the present evidence shows no delegation of responsibility to constables for county-
wide law enforcement policymaking generally or assisting EMS personnel
specifically. The record contains no evidence that the commissioners court allocated
funds to the Precinct Four Constable commensurate with policymaking authority for
county-wide law enforcement; nor evidence that Harris County impliedly
acknowledged that Constable Hickman acted in lieu of the county’s governing body
with respect to law enforcement. See Bennett, 728 F.2d at 769. The constable in
Nagel performed a narrow function for the entire county to the exclusion of all other
constable precincts and had done so for years, with budgetary support allocated to a
single precinct for the specific purpose at issue. See Nagel, 349 S.W.3d at 794.

      The evidence before us does not support appellees’ argument that a final
policymaking person or body of Harris County delegated to Constable Hickman
final policymaking authority over law enforcement for the county. When applicable
law shows that the person alleged to be a policymaker for a particular area of
municipal business does not in fact meet the test, and no evidence otherwise
demonstrates a delegation of sufficient authority, then the municipality can have no
section 1983 liability arising out of that official’s challenged conduct. See Roberson
v. City of Austin, 157 S.W.3d 130, 141 (Tex. App.—Austin 2005, pet. denied);
Democracy Coalition v. City of Austin, 141 S.W.3d 282, 293-95 (Tex. App.—Austin
2004, no pet.); City of Houston, 1999 WL 681939, at *11.

      We hold as a matter of law that an elected constable of Harris County is not,
absent specific facts not present in this case, the final policymaker for the county on

                                          23
law enforcement matters such that a deputy constable’s unconstitutional conduct is
chargeable to the county. Additionally, there exists no evidence in this case of
implied delegation to the Precinct Four Constable of county-wide policymaking
authority on law enforcement. The trial court’s contrary instruction was error, and
we sustain Harris County’s first issue. Therefore, the judgment against Harris
County cannot stand. Given our holding, we need not address Harris County’s
alternative separation of powers argument that a constable can never be a county
policymaker when discharging law enforcement duties imposed by state law.

B.     Deputy Vailes

       Deputy Vailes challenges the judgment against him on several grounds. His
first issue contains two sub-parts: (1) no legally or factually sufficient evidence
supports the jury’s findings that he used excessive force or unreasonably seized
Jamail; and, (2) he is entitled to qualified immunity. In issue two, Deputy Vailes
challenges the legal and factual sufficiency of the evidence to support the jury’s
finding that his actions proximately caused Jamail’s death. In his third issue, he
complains of jury charge error. Finally, he contends that the jury’s punitive damage
award has no legally or factually sufficient evidentiary support. We address each
issue in turn.

       1.        Legally and factually sufficient evidence supports the jury’s finding that
                 Deputy Vailes used excessive force.

       The trial court’s instruction and question regarding the excessive force claim
provided:

             First, Plaintiffs claim that Defendant Kevin Vailes violated the
       Fourth Amendment to the Constitution by using excessive force against
       their son, Jamail Amron, on September 30, 2010. The Fourth
       Amendment prohibits a law enforcement officer from using
       unreasonable or excessive force against an individual. To prevail on a

                                              24
      Fourth Amendment excessive-force claim, Plaintiffs must prove by a
      preponderance of the evidence:
             1. that Jamail Amron sustained an injury resulting directly from
                the use of excessive force; and
             2. that the excessiveness of the force was objectively
                unreasonable.
             The reasonableness of a particular use of force is based on what
      a reasonable officer would do under the circumstances and not on the
      defendant’s state of mind. You must decide whether a reasonable
      officer on the scene would view the force as reasonable, without the
      benefit of 20/20 hindsight. This inquiry must consider the fact that
      police officers are sometimes forced to make split-second judgments—
      in circumstances that are tense, uncertain, and rapidly evolving—about
      the amount of force that is necessary in a particular situation.
                                         ...
                                    QUESTION 1
             Do you find that Jamail Amron sustained an injury resulting
      directly from the use of excessive force by Defendant Kevin Vailes and
      that the excessiveness of the force was objectively unreasonable?

The jury answered, “Yes.” In the first part of Deputy Vailes’s first issue, he
challenges the legal and factual sufficiency of the evidence supporting the jury’s
answer to question one.

             a.     Standard of Review

      When a party attacks the legal sufficiency of an adverse finding on which he
did not have the burden of proof, he must demonstrate on appeal that no evidence
supports the finding. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex.
2014) (per curiam). We review the evidence in the light most favorable to the
appealed finding and indulge every reasonable inference that supports it. City of
Keller v. Wilson, 168 S.W.3d 802, 821-22, 827 (Tex. 2005); see also Graham Cent.
Station, 442 S.W.3d at 263. If the evidence at trial would enable reasonable and
fair-minded people to differ in their conclusions, then the fact finder must be allowed
                                          25
to do so, and we may not substitute our judgment for that of the fact finder. City of
Keller, 168 S.W.3d at 822.

      When a party attacks the factual sufficiency of the evidence pertaining to a
finding on which the party did not have the burden of proof, we may set aside the
finding only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Bennett v. Comm’n for Lawyer Discipline, 489 S.W.3d
58, 66 (Tex. App.—Houston [14th Dist.] 2016, no pet.). We consider all the
evidence, but we will not reverse the judgment unless “the evidence which supports
the [ ] finding is so weak as to [make the finding] clearly wrong and manifestly
unjust.” Star Enter. v. Marze, 61 S.W.3d 449, 462 (Tex. App.—San Antonio 2001,
pet. denied); see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
The amount of evidence necessary to affirm is far less than the amount necessary to
reverse a judgment. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d
599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). “If we determine
that the evidence is factually insufficient, we must detail the evidence relevant to the
issue and state in what regard the contrary evidence greatly outweighs the evidence
in support of the challenged finding; we need not do so when we affirm.” Bennett,
489 S.W.3d at 66.

      We apply these standards mindful that this court is not a fact finder. Maritime
Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The trier of fact is the
sole judge of witness credibility and the weight afforded their testimony. GTE
Mobilnet, 61 S.W.3d at 615-16; see City of Keller, 168 S.W.3d at 819-20. Therefore,
we may not pass upon the witnesses’ credibility or substitute our judgment for that
of the jury, even if the evidence would also support a different result. GTE Mobilnet,
61 S.W.3d at 615-16.



                                          26
             b.    Excessive Force Claims

      To establish a section 1983 excessive-force claim, a plaintiff must show that
he was seized and that he “suffered (1) an injury that (2) resulted directly and only
from the use of force that was excessive to the need and (3) the force used was
objectively unreasonable.” Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir.
2004). Excessive force claims are fact-intensive, and courts must consider “the
severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Deville v. Marcantel, 567 F.3d 156, 167 (5th
Cir. 2009) (citing Graham, 490 U.S. at 396). “The ‘reasonableness’ of a particular
use of force must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Hogan v. Cunningham, 722 F.3d
725, 734 (5th Cir. 2013) (quoting Graham, 490 U.S. at 396).

             c.    Application

      First, Deputy Vailes argues that because the jury found Jamail was partially
responsible for his own death, Jamail did not sustain an injury that resulted directly
and only from the use of force that was excessive to the need. Here, the language of
question one omitted the words “and only.” Deputy Vailes did not preserve this
point, however, because only Harris County objected to question one on the ground
that it omitted the words “and only.” “[O]ne party may not use another party’s
objection to preserve an error where the record does not reflect a timely expression
of an intent to adopt the objection.” Daniels v. Yancey, 175 S.W.3d 889, 892 (Tex.
App.—Texarkana 2005, no pet.) (citing Scott Fetzer Co. v. Read, 945 S.W.2d 854,
871 (Tex. App.—Austin 1997), aff’d, 990 S.W.2d 732 (Tex. 1998)). The record
does not reflect that Deputy Vailes timely objected on the ground he asserts in our
court or that he adopted Harris County’s objection.          Thus, we measure the

                                         27
sufficiency of the evidence by the charge as given. See Osterberg v. Peca, 12
S.W.3d 31, 55 (Tex. 2000).12 In conducting our review, we consider only the
evidence pertaining to Deputy Vailes’s actions, viewed in the light most favorable
to the jury’s findings.13

        When officers were dispatched to the scene, they were responding as back-up
to a medical emergency call. Lansdale testified that Jamail did not appear to be a
threat to himself or anyone else when Deputy Saintes arrived. After Jamail ran from
the ambulance toward the restaurant, he struggled with Deputies Saintes and Reese
as they attempted to secure him against the patrol car. Deputy Vailes arrived during
the struggle and assisted in immobilizing Jamail while an EMT injected Jamail’s
shoulder. According to Lansdale, Jamail immediately collapsed into the officer’s
arms.

        Lansdale testified that Deputy Vailes placed the sole of his boot on Jamail’s
face as Jamail lay handcuffed and unresponsive on the ground. Lansdale explained
that Deputy Vailes applied enough force to compress Jamail’s neck to the ground
even though Jamail was not actively resisting and appeared to her to be
unconscious.14




        12
          In any event, as we explain below, there exists some support in the record that Jamail
sustained pain and mental anguish damages resulting “directly and only” from Deputy Vailes’s
use of excessive force. The jury did not find that Jamail contributed to his survival damages.
        13
         See, e.g., Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012) (explaining that
reasonableness of each officers’ actions should be evaluated separately).
        14
          Lansdale’s initial signed statement to the sheriff varied from her trial testimony as to
whether Jamail resisted. In her statement, Lansdale said, “[Jamail] then began to twitch and was
moving around. The officers then used their feet to control the male from moving around on the
concrete. I believe that the officers were just trying to help the male so that he would not hurt
himself.” We presume the jury resolved factual discrepancies in Lansdale’s testimony favorably
to appellees.

                                                28
      Witnesses generally agreed that an officer’s conduct described by Lansdale
would constitute excessive force under these circumstances.          Deputy Saintes
testified that an officer putting his foot on Jamail’s face would be improper and
involve excessive force. Deputy Reese agreed that the only reason for Deputy Vailes
to use his feet to restrain Jamail’s head would have been to prevent Jamail from
banging his head on the concrete. He acknowledged that “if you take away the head
banging, you would have to take away the reason for using the feet as a form of use
of force.” Corporal Haver testified that nothing that Jamail was doing that evening
would have justified “having a foot on his face.” Appellees’ expert, Keith Howse,
testified that it would be objectively unreasonable to step on a person’s face when
that person was on the ground unconscious. Even Deputy Vailes acknowledged that
placing his boot on Jamail’s face and pressing down would be “against the law” and
“excessive for somebody that was under arrest, much less somebody that wasn’t.”

      Deputy Vailes’s appellate argument is grounded on the factual proposition
that he never placed his booted foot over Jamail’s mouth and nose. Deputy Vailes
testified that he used his feet to “cradle” Jamail’s head because Jamail was thrashing
his head and banging it on the ground. None of the other officers saw Deputy Vailes
place his boot on Jamail’s face or head; Deputies Saintes and Reese testified that
they saw Deputy Vailes using his hands to keep Jamail from “violently” banging his
head against the ground.

      The jury rejected that version of events. Viewing the evidence in the light
most favorable to the jury’s answer to question one and indulging every reasonable
inference that supports it, we conclude the jury could have reasonably accepted
Lansdale’s testimony. At the time Lansdale saw Deputy Vailes place his foot on
Jamail’s face, a reasonable jury could have found that Jamail did not pose an
immediate threat to the safety of the officers or others, and he was not actively

                                         29
resisting arrest or attempting to evade arrest by flight. See Graham, 490 U.S. at 396
(identifying these factors as important in determining whether a seizure or use of
force is reasonable); see also Ramirez, 716 F.3d at 378; Marcantel, 567 F.3d at 162
(police officer’s breaking plaintiff’s window when she refused to exit her vehicle
after being pulled over for speeding, dragging her out of the car, and throwing her
against the car window constituted use of excessive force); Bush v. Strain, 513 F.3d
492, 501 (5th Cir. 2008) (arresting officer who slammed arrestee’s face into rear
window of her car after she was handcuffed and subdued used excessive and
objectively unreasonable force). Further, crediting Lansdale’s depiction of events,
no reasonable officer could have determined that Jamail posed a threat while he was
lying motionless on the ground in handcuffs such that placing one’s boot over his
nose and mouth would be reasonable. See Ramirez v. Martinez, 716 F.3d 369, 378
(5th Cir. 2013) (“[A] reasonable officer could not have concluded Ramirez posed an
immediate threat to the safety of the officers by questioning their presence at his
place of business or laying on the ground in handcuffs.”); cf. also Nagel, 349 S.W.3d
at 785 (collecting cases holding that “officers use excessive force if they apply
significant pressure to a person who is hogtied”). Thus, legally sufficient evidence
supports the jury’s finding that Deputy Vailes used objectively unreasonable and
excessive force.

       Further, considering the evidence both in favor of and contrary to the jury’s
answer to question one, we cannot say the finding is so contrary to the overwhelming
weight of the evidence that it is clearly wrong and manifestly unjust.

       We overrule this portion of Deputy Vailes’s first issue.15 It is therefore
unnecessary to address Deputy Vailes’s evidentiary sufficiency challenges to the

       15
         Because factually sufficient evidence supports the jury’s answer to question one, we also
overrule Deputy Vailes’s alternative request for a new trial.

                                               30
jury’s finding in question two that Deputy Vailes intentionally and unreasonably
seized Jamail. See Tex. R. App. P. 47.1; see also Hieber v. Percheron Holdings,
LLC, —S.W.3d—, No. 14-19-00505-CV, 2019 WL 6001153, at *5 (Tex. App.—
Houston [14th Dist.] Nov. 14, 2019, pet. filed).

      2.     Deputy Vailes is not entitled to qualified immunity.
      Deputy Vailes next argues he is entitled to qualified immunity as a matter of
law, and that the trial court erred in denying his post-judgment motion in that regard.
Qualified immunity shields government officials from civil damages liability
“insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important
interests—the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S.
223, 231 (2009); see also Nagel, 349 S.W.3d at 777-78. The doctrine protects “all
but the plainly incompetent or those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341 (1986).

      Qualified immunity is an affirmative defense. See Gomez v. Toledo, 446 U.S.
635, 640 (1980); Pasco v. Knoblauch, 566 F.3d 572, 575 (5th Cir. 2009). Once a
defendant raises qualified immunity, the burden shifts to the plaintiff to show that
(1) the official violated a statutory or constitutional right, and (2) the right was
“clearly established” at the time of the violation. Morgan v. Swanson, 659 F.3d 359,
371 (5th Cir. 2011) (en banc) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011));
see Pearson, 555 U.S. at 232. The jury found that Deputy Vailes violated Jamail’s
constitutional rights. The court, in denying Deputy Vailes’s post-judgment motion,
necessarily determined that the right violated was clearly established in September

                                          31
2010. See, e.g., Elder v. Holloway, 510 U.S. 510, 516 (1994) (explaining that
existence of “clearly established” law is a question for the court).

      As explained above, sufficient evidence supports the jury’s finding that
Deputy Vailes violated Jamail’s Fourth Amendment right to be free from excessive
force, the excessiveness of which was objectively unreasonable. The witnesses
consistently agreed that, if Deputy Vailes acted in the manner described by Lansdale,
then his actions would be unlawful. Their testimony comports with relevant case
law. Cf. Samples v. Vadzemnieks, 900 F.3d 544, 661-62 (5th Cir. 2018) (explaining
that first prong of qualified immunity inquiry satisfied when officer used a taser
when there was no reason to believe that Samples “committed a crime, sought to
flee, or posed a threat of danger to the [officers]”); Ramirez, 716 F.3d at 378; Bolick
v. City of E. Grand Rapids, 580 F. App’x. 314, 319-20 (6th Cir. 2014) (denying
officers’ motion for summary judgment because jury could find that officers’ use of
taser and applying weight to suspect’s body when he was handcuffed and no longer
resisting arrest constituted objectively unreasonable excessive force); Champion v.
Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004) (holding that use of force
was not objectively reasonable where officers lay on top suspect who had stopped
resisting arrest and posed no flight risk and sprayed him with pepper spray). Thus,
we resolve the first prong of the qualified immunity inquiry against Deputy Vailes.

      We turn to whether Jamail’s right to be free of the degree of force applied
under these circumstances was clearly established as of September 2010. See Turner
v. Perry, 278 S.W.3d 806, 814 (Tex. App.—Houston [14th Dist.] 2009, pet. denied);
see also White v. Pauly, 137 S. Ct. 548, 551 (2017) (citing Mullenix v. Luna, 136
S.Ct. 305, 308 (2015)). To be clearly established, a legal principle or right must
have a sufficiently clear foundation in then-existing precedent. See District of
Columbia v. Wesby, — U.S. —, 138 S.Ct. 577, 589-90 (2018). The right must be

                                          32
“settled law,” Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam), which means
it is dictated by “controlling authority” or “a robust ‘consensus of cases of persuasive
authority’” that place the constitutional question beyond debate. See Wesby, 138
S. Ct. at 589-90; al-Kidd, 563 U.S. at 741-42. Precedent must be clear enough that
every reasonable official would interpret it to establish the particular rule the plaintiff
seeks to apply. Wesby, 138 S. Ct. at 590. Otherwise, the rule is not one that “every
reasonable official” would know. Id.

       Further, as the Supreme Court has instructed, we are “not to define clearly
established law at a high level of generality.” Mullenix, 136 S.Ct. at 308; al-Kidd,
563 U.S. at 742. The interests immunity preserves are so great that the Supreme
Court insists the right and its particular contours be articulated in light of the
“specific context of the case,” not as a broad general proposition. See Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (per curiam) (citing Saucier v. Katz, 533 U.S.
194, 201 (2001)).

       We conclude that “controlling authority” or “a robust ‘consensus of cases of
persuasive authority’”16 as of September 2010 make it sufficiently clear that every
reasonable official would understand (as did those who testified) that stepping on
the nose and mouth of someone who is lying on the ground, likely sedated,
handcuffed, and described by an eyewitness as generally unresponsive, with enough
force that the person’s neck touches the ground, would constitute an excessive-force
Fourth Amendment violation under the present circumstances. In September 2010,
it was clearly established that comparable uses of gratuitous force against a subdued
and restrained detainee was unreasonable. See, e.g., Bush, 513 F.3d at 501-02
(officer’s slamming suspect’s face into vehicle when suspect was handcuffed and


       16
            Wesby, 138 S. Ct. at 589-90.

                                            33
subdued was excessive); Tarver v. City of Edna, 410 F.3d 745, 753 (5th Cir. 2005)
(fact question on qualified immunity when officer intentionally slammed car door
on head of suspect, who did not pose immediate threat to anyone’s safety, and posed
no risk of escape); Gomez v. Chandler, 163 F.3d 921, 922, 924-25 (5th Cir. 1999)
(slamming prisoner’s face into concrete floor “while [prisoner’s] hands were
handcuffed behind his back” could be excessive); see also Shannon v. Koehler, 616
F.3d 855, 863 (8th Cir. 2010) (“Assuming, then, that Shannon’s story is true—i.e.,
assuming he was not threatening anyone, not resisting arrest, and so on—it was not
reasonable for Officer Kohler to use more than de minimis force against him.”);
Bailey v. Kennedy, 349 F.3d 731, 745 (4th Cir. 2003) (unarmed person, handcuffed,
lying face down on floor; officer lifted person by his bound arms and kicked him in
back; use of force was excessive after person was “secured face down on the floor
in handcuffs and leg restraints”); Kane v. Hargis, 987 F.2d 1005, 1006-07 (4th Cir.
1993) (denying qualified immunity on excessive force claim where, after officer
secured suspect, he “repeatedly push[ed] her face into the pavement, cracking three
of her teeth, cutting her nose, and bruising her face”); Lewis v. City of Albany Police
Dep’t, 547 F. Supp. 2d 191, 206-10 (N.D.N.Y. 2008), aff’d, 332 F. App’x 641 (2d
Cir. 2009), cert. denied, 558 U.S. 1050 (2009) (while plaintiff handcuffed on
pavement, officer stepped on head with full weight and ground his face into
pavement, causing abrasions, contusion, and closed head injury; court upheld jury
verdict finding excessive force). Appellees’ expert agreed that an officer aware of
the law on September 30, 2010, should know that stepping on a restrained person’s
face with the amount of force described by Lansdale, when the person is on the
ground and not resisting, violates the law.

      As Deputy Vailes characterizes the issue, the law was not clearly established
“that any use of feet by an officer during a seizure of a person is a violation of a


                                          34
Fourth Amendment right to be free from excessive force in 2010.” Deputy Vailes’s
description of clearly established law, however, is both impermissibly general and
contrary to facts the jury accepted. We hold Deputy Vailes is not entitled to qualified
immunity and overrule this issue.

      3.     The jury’s finding that Deputy Vailes’s constitutional violations caused
             Jamail’s death is not supported by legally sufficient evidence.

      In his second issue, Deputy Vailes challenges the legal and factual sufficiency
of the evidence to support the jury’s finding in question nine that he proximately
caused Jamail’s death. Question nine asked:

            Do you find that any individual or entity named below proximately
      caused the death of Jamail Amron?

             a. Defendant Harris County           Yes
             b. Defendant Kevin Vailes            Yes
             c. Jamail Amron                      Yes
            “Proximate cause” means a cause that was a substantial factor in
      bringing about an occurrence, and without which cause such occurrence
      would not have happened. There may be more than one proximate cause of
      an occurrence.

We address legal sufficiency first and apply traditional legal sufficiency review
principles outlined above. City of Keller, 168 S.W.3d at 821-22, 827.

             a. Applicable Law

      The facts of this case involve an unfortunate and unnecessary death. Even so,
the plaintiff bears the burden to prove that the challenged conduct caused the death
at issue. See Christus St. Mary Hosp. v. O’Banion, 227 S.W.3d 868, 874 (Tex.
App.—Beaumont 2007, pet. denied); Sisters of St. Joseph of Texas, Inc. v. Cheek,
61 S.W.3d 32, 37 (Tex. App.—Amarillo 2001, pet. denied). Causation must be
shown to a reasonable medical probability. See Jelinek v. Casas, 328 S.W.3d 526,

                                          35
532-33 (Tex. 2010). Breach of a duty proximately causes an injury if the breach is
a cause in fact of the harm and the injury was foreseeable. Stanfield v. Neubaum,
494 S.W.3d 90, 97 (Tex. 2016); see Columbia Med. Ctr. of Las Colinas, Inc. v.
Hogue, 271 S.W.3d 238, 246 (Tex. 2008). Here, the jury charge’s proximate cause
definition included only the cause in fact element, and Deputy Vailes does not
complain of the foreseeability element’s omission. See, e.g., IHS Cedars Treatment
Ctr. of DeSoto, Tex. Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004). Because
absent objection we measure the sufficiency of the evidence by the charge given,17
we consider only whether the record contains legally sufficient evidence of cause in
fact.
        Cause in fact is established when the act or omission was a substantial factor
in bringing about the injury, without which the harm would not have occurred.
Stanfield, 494 S.W.3d at 97; Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775
(Tex. 1995), abrogated on other grounds by Ford Motor Co. v. Ledesma, 242
S.W.3d 32 (Tex. 2007). A claimant must prove these elements by more than
conjecture, guess, or speculation.             Stanfield, 494 S.W.3d at 97; IHS Cedars
Treatment Ctr., 143 S.W.3d at 798-99.

                 b. Application

        Appellees’ theory is that Jamail died because Deputy Vailes placed his boot
over Jamail’s nose and mouth for two to five minutes and suffocated him. Deputy
Vailes argues that Jamail died because of acute cocaine toxicity, as the medical
examiner concluded following Jamail’s autopsy. According to Deputy Vailes,
appellees offered no competent expert evidence establishing, within a reasonable
medical probability, that asphyxia was the cause of death and that acute cocaine


        17
             See Osterberg, 12 S.W.3d at 55.

                                                 36
toxicity was not the cause of death. In response, appellees insist expert testimony
was not required, and that they presented sufficient lay testimony to support the
causation finding. We agree with Deputy Vailes.

       In cases alleging medical injury or death, expert testimony regarding
causation is generally the norm. See Jelinek, 328 S.W.3d at 533. The only time this
is not so is when “general experience and common sense will enable a layman to
determine, with reasonable probability, the causal relationship between the event
and the condition.” Id.; see JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 162 (Tex.
2015); Guevara v. Ferrar, 247 S.W.3d 662, 665 (Tex. 2007); Mack Trucks, Inc. v.
Tamez, 206 S.W.3d 572, 583 (Tex. 2003); Roark v. Allen, 633 S.W.2d 804, 809 (Tex.
1982). To be sufficient, lay evidence must establish a “sequence of events which
provides a strong, logically traceable connection between the event and the
condition”18 that is “apparent to the casual observer.” Jelinek, 328 S.W.3d at 533.
Additionally, “if evidence presents ‘other plausible causes of the injury or condition
that could be negated, the [proponent of the testimony] must offer evidence
excluding those causes with reasonable certainty.’” JLG Trucking, 466 S.W.3d at
162 (quoting Transcont. Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex. 2010)).
When expert testimony is required, however, lay evidence supporting liability is
legally insufficient. City of Keller, 168 S.W.3d at 812. Lay testimony as evidence
of causation sufficed, for example, in cases like Guevara19 and Morgan,20 but not in




       18
            Guevara, 247 S.W.3d at 666.
       19
            247 S.W.3d at 668 (bone fractures, pain following automobile accident).
       20
        Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984) (previously healthy
employee suffered watery eyes, blurred vision, headaches, and swelling of breathing passages
upon exposure to leaking chemicals).

                                                37
Jelinek21 or Roark.22 Courts have also held that expert evidence is required when
cause of death is at issue, such as in Myers23 and Rodriguez.24

       Appellees assert that no expert evidence is necessary for a jury to understand
that “depriving a person of air for five minutes will cause death.” As an example,
they posit that, had the evidence shown that Deputy Vailes placed a plastic bag over
Jamail’s head, a jury would have been justified in finding that Deputy Vailes caused
Jamail’s death by suffocation. Assuming that is true, the question is not whether
suffocation causes death, but whether Deputy Vailes in fact caused Jamail’s death
by suffocating him with his boot. Appellees rely principally on Lansdale, who said
she saw Deputy Vailes’s boot on Jamail’s face two times, separated by two to five
minutes. According to appellees, the jury could have inferred that Deputy Vailes’s
boot completely obstructed Jamail’s airways for two to five minutes, and that as a
result Jamail was not breathing and had died once Deputy Vailes removed his foot
and walked to his patrol car.

       On the present record, we disagree that the jury could have reasonably drawn
the inference appellees suggest. Lansdale saw Deputy Vailes with his boot on
Jamail’s face at two moments, but she did not see Deputy Vailes keep his foot on
Jamail’s face for any sustained period. More important, she was not looking out the
window at the critical time when Deputy Vailes walked away, so she did not see
Jamail’s condition at that time or whether he was breathing. Those present with


       21
            328 S.W.3d at 534 (cause of infection).
       22
            633 S.W.2d at 809 (cause of skull fractures).
       23
         Ins. Co. of N. Am. v. Myers, 411 S.W.2d 710, 713 (Tex. 1966) (expert required to say
whether work injury activated and accelerated tumor malignancy and caused death).
       24
           Rodriguez v. Medders, No. 10-11-00369-CV, 2012 WL 4862588, at *5 (Tex. App.—
Waco Oct. 4, 2012, no pet.) (whether decubitus ulcers caused death was outside general experience
of laypersons) (mem. op.).

                                                 38
Jamail, on the other hand, gave unrefuted testimony that Jamail’s airway was not
obstructed and that he continued breathing until after Deputy Vailes left the
immediate scene. Both Richardson and May testified that Jamail was breathing as
he was rolled onto his side so that he could be placed on a backboard and lifted onto
a stretcher. Deputy Reese and Corporal Haver also stated that Jamail was breathing
when he was placed on the backboard;25 it was only when Jamail was lifted onto the
stretcher that they, and the EMTs, became concerned about Jamail’s breathing.
According to Richardson, he did not hear “snoring” or “deep, labored respirations,”
which potentially signaled a problem, until they were wheeling Jamail towards the
ambulance.

        Even if the jury could have reasonably inferred that Deputy Vailes’s foot
remained on Jamail’s face for two to five minutes, Lansdale did not say and would
not know from viewing the scene as a “casual observer” from inside the drive-
through window whether Jamail’s airway was ever completely obstructed or whether
he died. She did not testify that Jamail stopped breathing or that she believed he was
dead.        Though Lansdale said Jamail looked “dead or in a coma” right after
Richardson gave the first injection, she was describing Jamail’s condition
immediately upon falling to the ground before she saw Deputy Vailes’s foot on
Jamail’s face.26 Lansdale did not know whether Jamail was dead or alive at that
time, and she offered no further testimony whether he appeared dead later.


        25
           According to the Harris County Sheriff’s Office incident report, Deputy Reese became
concerned about Jamail’s breathing once they had placed him on the backboard, but Jamail was
breathing and making noises at that time, after Deputy Vailes left. Corporal Haver also became
concerned after Jamail was placed on the stretcher; she noted that Jamail’s “breathing was shallow”
at that point. Both Deputy Reese’s and Corporal Haver’s trial testimony was consistent with their
reports during the Sheriff’s Office investigation.
        26
             Lansdale’s precise words were that “[h]e looked to either be dead or in a coma. I could
not tell.”

                                                  39
      Appellees also cite an acknowledgement by the defense expert that the events
described by Lansdale “could have caused” Jamail’s death if “the evidence in this
case indicated that there was no movement, [Jamail] made no sounds, he was
unresponsive, and a boot was place over his mouth for a period of five minutes.”
However, whether the sequence of events described “could” have caused death is
not legally sufficient. Columbia Med. Ctr. of Las Colinas, 271 S.W.3d at 247 (“can”
and “could” are not sufficient to support causation).

      We hold that the lay testimony appellees presented is legally insufficient to
prove that Deputy Vailes caused Jamail’s death by suffocating him. Appellees’
evidence, viewed in the light most favorable to the verdict, does not establish a
“sequence of events which provides a strong, logically traceable connection between
the event and the condition.” Guevara, 247 S.W.3d at 668. Thus, expert evidence
was necessary to establish appellees’ alleged causal link. See Jelinek, 328 S.W.3d
at 534-35.

      Moreover, given the circumstances surrounding Jamail’s death, in particular
the significant medical evidence of a plausible cause of death other than suffocation,
a jury simply could not have found that Deputy Vailes proximately caused Jamail’s
death unaided by expert evidence. The evidence showed conclusively that Jamail
ingested a substantial amount of cocaine on the night in question, which immediately
prompted his 911 call. Harris County medical examiner Dr. Dwayne Wolf testified
that Jamail died of “acute cocaine toxicity”—the cause of death identified in the
medical examiner’s autopsy report.       Although the report contained additional
pathologic diagnoses—pulmonary edema and congestion, bronchoaspiration of
gastric contents, and minor blunt trauma, including abrasions on Jamail’s face and
contusions around his wrists and on his leg, ankle, and one of his toes—Dr. Wolf
confirmed that Jamail did not choke on his own emesis, or vomit, and suffocate. As

                                         40
Dr. Wolf explained, the “little bit of gastric contents” found in Jamail’s lungs was
consistent with “people dying from all sorts of causes.”27

       The toxicology report identified the cocaine concentration in Jamail’s blood
as 0.37 mg/L, with the cocaine metabolite benzoylecgonine measuring 0.62 mg/L.
Harris County chief toxicologist Dr. Teresa Gray explained that a cocaine blood
concentration of 0.37 mg/L was higher than the vast majority of cocaine deaths in
Harris County in 2015. She stated, “Only 10 percent of the cocaine deaths [in 2015]
had concentrations greater than .37.” She also discussed several studies in which
cocaine blood concentrations in cocaine-related deaths were much higher than that
measured in Jamail’s death. She testified that studies on cocaine use have wide
variances in cocaine concentration in the blood, with some people showing no effect,
an adverse effect, or death at varying degrees of cocaine concentration. In that vein,
appellees cite a reference text in the toxicology community reporting studies
showing that in some instances of acute cocaine use, persons with concentrations of
.75 mg/L had no adverse effects, and one person with a concentration of 3.87 mg/L
did not exhibit toxicity symptoms. Another text stated that cocaine concentrations
of less than .3 mg/L are generally considered “clinically therapeutic.”

       Appellants presented the testimony of two additional medical experts: Dr.
Vincent DiMaio, an expert on excited delirium syndrome, and Dr. Tom Neuman, an
expert on asphyxiation.        Dr. DiMaio opined that, in all reasonable medical
probability, Jamail “died of excited delirium syndrome brought on by acute cocaine
psychosis.” Dr. DiMaio explained that Jamail died of “a cardiac arrhythmia as an

       27
          As appellees emphasize and Dr. Wolf conceded, the particular medical examiner who
performed the autopsy on Jamail was fired within one year after performing the autopsy because
she was indicted for insurance fraud. Appellees relied on this fact at trial to undermine the
autopsy’s credibility and hence the defendants’ theory. Regardless, appellees retained the
affirmative burden to prove their own theory and establish why it was superior to acute cocaine
toxicity as another highly plausible cause of death.

                                              41
induced irregular beating of the heart due to excited delirium, which is essentially
an overdose of the body secretions, particularly adrenaline and noradrenaline caused
by acute cocaine intoxication.” Dr. Neuman explained that Jamail could not have
died of asphyxiation related to the placement of Deputy Vailes’s boot over Jamail’s
nose and mouth.

       Based on our review of the record, we cannot say that the cause of Jamail’s
death is within the “general experience and common sense of laypersons . . . to
evaluate the conditions and whether they were probably caused by the occurrence.”
Jelinek, 328 S.W.3d at 534; Guevara, 247 S.W.3d at 668.                               Under these
circumstances, whether Jamail died from suffocation as a result of Deputy Vailes’s
actions or died of acute cocaine toxicity is outside the common knowledge and
experience of jurors and is not a matter “apparent to the casual observer.” Jelinek,
328 S.W.3d at 533. Thus, appellees were required to present expert evidence
establishing a reasonable medical probability that Deputy Vailes proximately caused
Jamail’s death by suffocation, and excluding with reasonable certainty the other
plausible cause that Jamail died from acute cocaine toxicity. See JLG Trucking, 466
S.W.3d at 162; Crump, 330 S.W.3d at 218.

       Appellees presented their own toxicology expert, Dr. Ernest Lykissa. Dr.
Lykissa is a Ph.D., but not a physician.28 He testified that findings of pulmonary
edema congestion and bronchoaspiration of gastric contents, such as those made in
Jamail’s autopsy, are often seen in autopsies of people who drowned. However, Dr.
Lykissa did not opine as to the cause of Jamail’s death because he was not qualified
to do so and the trial court excluded him from expressing an opinion in that regard.
Despite the court’s ruling, Dr. Lykissa stated that, given his knowledge of the facts

       28
         Dr. Lykissa’s title indicates his Ph.D. in toxicology, not his status as a licensed physician.
Dr. Lykissa is not a licensed medical doctor in the United States or Canada.

                                                  42
and evidence in this case, Jamail’s death was not caused by cocaine. Even so,
because he was unqualified to testify as to the cause of death, he neither stated that
Jamail died of suffocation nor explained why appellants’ proffered theory that
Jamail died of suffocation was medically superior to the medical evidence that he
died of cocaine toxicity. See Gunn v. McCoy, 554 S.W.3d 645, 665 (Tex. 2018).

      In sum, appellees presented no expert evidence of causation, and the lay
testimony fails to meet their burden. We therefore conclude that the jury’s proximate
cause finding pertaining to the wrongful death damages is unsupported by legally
sufficient evidence. We sustain Deputy Vailes’s second issue. We need not address
Deputy Vailes’s factual insufficiency argument.

      Deputy Vailes does not challenge the evidence supporting the survival
damages. Because we have rejected his qualified immunity argument, we leave the
survival damages undisturbed except as explained below in our discussion of
appellees’ cross-issue.

      4.     Any jury charge error as to the unreasonable seizure question is
             harmless.

      Deputy Vailes contends the trial court reversibly erred in submitting a jury
question on unreasonable seizure (question two) because it constituted a “double
submission” of excessive force (question one). We need not address this point. As
we have determined, legally and factually sufficient evidence supports the jury’s
findings in response to question one, which independently support the trial court’s
judgment even assuming question two had not been submitted. Thus, any error was
harmless. See Tex. R. App. P. 44.1(a); Shupe v. Lingafelter, 192 S.W.3d 577, 579
(Tex. 2006) (per curiam) (explaining that error in charge is harmless “when the
findings of the jury in answer to other issues are sufficient to support the judgment”).

      We overrule Deputy Vailes’s third issue.

                                          43
      5.     The exemplary damage award against Deputy Vailes is supported by
             legally sufficient evidence.
      In his fourth issue, Deputy Vailes contends that the jury’s $5,000 exemplary
damage award against him lacks legally and factually sufficient evidentiary support.

      The trial court instructed the jury that an award of exemplary damages must
be based on “clear and convincing evidence,” which means “the measure or degree
of proof that produces a firm belief or conviction of the truth of the allegations sought
to be established.” Clear and convincing evidence is “that measure or degree of
proof which will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established.” State v. K.E.W., 315
S.W.3d 16, 20 (Tex. 2010). This standard of proof is an intermediate standard
“falling between the preponderance standard of civil proceedings and the reasonable
doubt standard of criminal proceedings.” In re G.M.G., 444 S.W.3d 46, 54 (Tex.
App.—Houston [14th Dist.] 2014, no pet.). When, as here, the party’s burden of
proof is heightened, we must apply a heightened standard of review to sufficiency
of the evidence challenges. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

      Punitive damages may be awarded in section 1983 cases “when the
defendant’s conduct is shown to be motivated by evil motive or intent, or when it
involves reckless or callous indifference to the federally protected rights of others.”
Heaney v. Roberts, 846 F.3d 795, 803 (5th Cir. 2017) (citing Smith v. Wade, 461
U.S. 30, 56 (1983)). The purpose of such damages is to punish as well as to deter
future egregious conduct in violation of constitutional rights. Sockwell v. Phelps, 20
F.3d 187, 192 (5th Cir. 1994). A jury has discretion to award punitive damages
when it deems it necessary to punish and deter the defendant. See id. Deputy Vailes
argues, and we agree, that appellees presented no evidence that he was motivated by
malicious or evil intent.      However, crediting Lansdale’s testimony, the jury


                                           44
reasonably could have formed “a firm belief or conviction” that Deputy Vailes’s
conduct amounted to reckless or callous indifference to Jamail’s right to be free from
excessive force. Deputy Vailes acknowledged that, if he behaved as Lansdale
described, then he would have committed assault. Cf. Williams v. Kaufman County,
352 F.3d 994, 1015-16 (5th Cir. 2003) (explaining that reckless or callous
indifference requires “recklessness in its subjective form, i.e., a subjective
consciousness of a risk of injury or illegality and a criminal indifference to civil
obligations”).

      Under these circumstances, considering the evidence in the light most
favorable to the jury’s verdict, we conclude that the jury’s award of $5,000 in
punitive damages against Deputy Vailes is supported by legally sufficient evidence.
Further, considered in a neutral light, the jury’s finding is not so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust; accordingly,
factually sufficient evidence likewise supports the jury’s verdict.

      We overrule Deputy Vailes’s fourth issue.

C.    Appellees’ Cross-Issue

      In their sole cross-issue, appellees contend that the trial court erred by
reducing Jamail’s survival damages based on the jury response to question ten, the
only proportionate responsibility question in the court’s charge.       Question ten
provided:

      For each individual or entity that you found caused or contributed to
      cause the death of Jamail Amron, find the percentage of responsibility
      attributable to each:
      Your answers must be in whole numbers and must equal 100%.
      1. Defendant Harris County               60    %
      2. Defendant Kevin Vailes                20    %


                                          45
      3. Jamail Amron                         20    %

(Emphasis added). As the emphasized language shows, the jury’s answer to this
question apportions responsibility only for Jamail’s death. The jury was not asked
to apportion responsibility for survival damages. Even though the jury awarded
survival damages in addition to death damages, the trial court, over appellees’
objection, reduced appellees’ recovery of survival damages by the 20%
apportionment finding applicable to the death damages.

      Texas Civil Practice and Remedies Code section 33.003 requires
proportionate responsibility to be determined for each cause of action. See Tex. Civ.
Prac. & Rem. Code § 33.003(a). Wrongful death and survivor claims are legally
distinct causes of action. See Cunningham v. Haroona, 382 S.W.3d 493, 508 (Tex.
App.—Fort Worth 2012, pet. denied); see also Tex. Civ. Prac. & Rem. Code
§ 71.002 (defining wrongful death cause of action); id. § 71.021 (defining survival
cause of action). The damages recoverable in a survival action are those that the
decedent suffered while alive. Cunningham, 328 S.W.3d at 508; see also Russell v.
Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992). In contrast, the “damages
recoverable in a wrongful death action are for the exclusive benefit of the defined
statutory beneficiaries and are meant to compensate them for their own personal
loss.” Cunningham, 382 S.W.3d at 508 (citing In re Labatt Food Serv., L.P., 279
S.W.3d 640, 644 (Tex. 2009) (orig. proceeding)).

      Proportionate responsibility is a defensive issue on which the defendant bears
the burden of proof. See Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 209-10 (Tex.
2015). Here, neither Harris County nor Deputy Vailes secured any finding to
apportion responsibility for Jamail’s survival damages.       Because survival and
wrongful death are different causes of action and compensate for different types of
damage, a proportionate responsibility finding for a wrongful death cause of action

                                         46
generally will not by itself support reduction of survival damages. See Tex. Civ.
Prac. & Rem. Code § 33.003(a); cf. Cunningham, 382 S.W.3d at 502 (noting that
trial court properly submitted survival liability, proportionate responsibility, and
damages questions, in addition to similar wrongful death questions).29 We think this
general proposition applies here, where no party requested apportionment of survival
damages, and we have no cause to scrutinize the evidence supporting the award.
Deputy Vailes neither challenges its sufficiency nor argues that this is the type of
case where the claimant’s conduct contributing to his death necessarily contributed
to his pre-death pain and suffering. The jury may have awarded pain and suffering
damages based solely on its finding that Deputy Vailes stepped on Jamail’s face
while he was handcuffed and unresponsive. Accordingly, we conclude that the
jury’s apportionment of responsibility for death damages does not apply to the
survival damages. The trial court erred in reducing appellees’ recovery of survival
damages by 20%.

       We sustain appellees’ sole cross-issue.

                                          Conclusion

       Appellees did not establish that Deputy Vailes’s constitutional violations were
inflicted pursuant to an act or decision of a Harris County final policymaker
responsible for the area of county business at issue. Thus, Harris County is not liable
under section 1983 for any damages, and we reverse and render a take-nothing
judgment in Harris County’s favor as to all appellees.




       29
          We note that the jury was not asked whether any of the parties proximately caused
Jamail’s injuries, if any, prior to his death. However, appellants do not raise this issue in their
briefs, and we treat it as an omitted finding presumptively supported by evidence. See Tex. R.
Civ. P. 299.

                                                47
      Additionally, we hold that appellees presented legally and factually sufficient
evidence that Deputy Vailes used excessive force and that he is not entitled to
qualified immunity.     Appellees, however, failed to present legally sufficient
evidence that Deputy Vailes’s constitutional violations caused Jamail’s death, so we
reverse the portion of the judgment awarding appellees $10,000,000 in wrongful
death damages. Because Deputy Vailes has not challenged the survival damages,
and because we have sustained appellees’ cross-issue regarding those damages, we
modify the judgment to award appellee Coats, in her capacity as personal
representative of Jamail’s estate, $1,000,000 in damages from Deputy Vailes for
Jamail’s pain and mental anguish, plus applicable pre- and post-judgment interest,
and we affirm that portion of the judgment as modified.

      We also hold that legally and factually sufficient evidence supports the jury’s
award of $5,000 in exemplary damages against Deputy Vailes, and we affirm that
portion of the judgment.

      Finally, the judgment awards appellees $450,000 in reasonable and necessary
attorney’s fees through trial, plus a maximum of $260,000 in conditional appellate
fees, against both Harris County and Deputy Vailes. The parties submitted the issue
to the court. The award is based on a right of fee recovery under section 1988. See
42 U.S.C. § 1988. Reasonableness of attorney’s fees under section 1988 is governed
by a number of factors, but the most “crucial” one is the degree of the claimant’s
success. Hensley v. Eckerhart, 461 U.S. 424, 432-37, 439 (1983). We have reversed
the judgment against Harris County, and we have materially reduced the damages
recoverable from Deputy Vailes. Therefore, in the interest of justice, we reverse the
award of attorney’s fees, and we remand the case for reconsideration of attorney’s
fees to be awarded against Deputy Vailes. See Tex. R. App. P. 43.3(b); Kartsotis v.
Bloch, 503 S.W.3d 506, 520-21 (Tex. App.—Dallas 2016, pet. denied) (remanding

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in the interest of justice attorney’s fees award for reconsideration whether fees were
“equitable and just” after reversal of declaratory judgment on appeal); Drabek v.
Cavazos, No. 13-14-00063-CV, 2014 WL 4402501, at *3 (Tex. App.—Corpus
Christi Aug. 29, 2014, pet. denied) (mem. op.) (“We have broad discretion to remand
the issue of attorneys’ fees in the interest of justice.”).




                                          /s/    Kevin Jewell
                                                 Justice



Panel consists of Justices Christopher, Wise, and Jewell.




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