Opinion issued December 8, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00697-CV
                           ———————————
                    LAKEITH AMIR-SHARIF, Appellant
                                        V.
        DEDRIC D. BOSTIC AND BETTY HIGHTOWER, Appellees


               On Appeal from the 412th Judicial District Court
                           Brazoria County, Texas
                       Trial Court Case No. 75570-I


                         MEMORANDUM OPINION

      This is a prison inmate’s suit against prison officials. The inmate sought

compensation for the loss of his personal property, but a jury found that the

officials had not converted the inmate’s property in violation of the Texas Theft

Liability Act and had not conspired to deprive him of it. The trial court dismissed
the inmate’s other claims for constitutional violations, and it entered judgment on

the jury’s verdict. The inmate appeals, contending that the trial court erred in

dismissing his constitutional claims and that the evidence does not support the

jury’s verdict. We conclude that the trial court did not err in dismissing the

inmate’s constitutional claims and that sufficient evidence supports the jury’s

verdict. We therefore affirm.

                                   Background

       Lakeith Amir-Sharif sued Dedric Bostic and Maggie Hightower, among

others who are not parties to the appeal, alleging that they wrongfully confiscated

and destroyed Amir-Sharif’s personal items during intake processing at the

Holliday Prison Unit. Amir-Sharif alleged that, upon his return to prison after his

temporary transfer of custody under a bench warrant, Bostic improperly

confiscated and destroyed his personal property, consisting of coffee, sweeteners,

toiletries, a writing tablet, an eraser, nitroglycerin pills, asthma pumps, pictures,

and law books. He alleged that the confiscation and destruction of his property

violated his federal and state due process rights, the Eighth Amendment and the

Equal Protection Clause of the federal constitution, and the Texas Theft Liability

Act.   He further alleged claims for retaliation and intentional infliction of

emotional distress and named Hightower as a co-conspirator.




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      The trial court dismissed all of Amir-Sharif’s claims except his Theft

Liability Act claim against Bostic and his conspiracy claim against Bostic and

Hightower, which were tried to a jury. The jury rejected both claims.

                                     Discussion

      On appeal, Amir-Sharif contends that the trial court abused its discretion by

dismissing the claims that were not tried to the jury under Chapter 14 of the Texas

Civil Practice and Remedies Code. He further contends that the evidence is legally

and factually insufficient to support the jury’s findings that (1) Bostic did not

unlawfully appropriate Amir-Sharif’s property; and (2) Bostic and Hightower did

not conspire to retaliate against him. Finally, Amir-Sharif contends that the trial

court abused its discretion by denying Amir-Sharif’s motions for new trial, for

judgment notwithstanding the verdict, and to reopen the evidence to allow him to

call additional Texas Department of Corrections officials to testify at trial.

A.    Standard of Review and Applicable Law

      Chapter 14 of the Texas Civil Practice and Remedies Code governs a lawsuit

filed by an inmate and accompanied by the inmate’s affidavit or declaration of

inability to pay costs. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (West

2002). It requires an inmate to exhaust the administrative remedies available

through the TDCJ grievance system before the inmate may file the claim in state

court. See id. § 14.005(a)(1) (mandating that inmate who files claim subject to



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TDCJ grievance system file affidavit or unsworn declaration stating date grievance

was filed and date inmate received written grievance decision). The exhaustion

requirement applies to “operative facts for which the grievance system provides the

exclusive administrative remedy.” TEX. GOV’T CODE ANN. § 501.008(d) (West

1995).

      A trial court properly dismisses a suit brought under Chapter 14 if an inmate

fails to comply with the statute’s requirements. TEX. CIV. PRAC. & REM. CODE

ANN. §§ 14.002(a), 14.004–5 (West 2002); Bell v. Tex. Dep’t of Crim. Justice–

Inst’l. Div., 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet.

denied). Under Chapter 14, a trial court also may dismiss the suit if it finds that the

inmate’s suit is frivolous or malicious—that is, if the claims raised in the suit have

no arguable basis in law or fact. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003

(West 1995). We review a trial court’s dismissal pursuant to Chapter 14 for an

abuse of discretion. Id.; Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—

Houston [1st Dist.] 1998, no pet.). A trial court abuses its discretion if its action is

arbitrary or unreasonable in light of all the circumstances. Moreland v. Johnson,

95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Thomas v.

Knight, 52 S.W.3d 292, 294 (Tex. App.—Corpus Christi 2001, pet. denied).

      An appellant attacking the legal sufficiency of an adverse finding on an issue

on which he had the burden of proof must demonstrate that the evidence



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conclusively establishes all vital facts in support of the issue. Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 241 (Tex. 2001). The appellant must show that there is

no evidence to support the finding and the evidence conclusively establishes the

opposite of the finding.    Id.   We first examine the record for any evidence

supporting the jury’s finding while ignoring all evidence to the contrary. Id. If no

evidence supports the finding, then we review the entire record to determine

whether the contrary proposition is established as a matter of law. Id.

      When a party attacks the factual sufficiency of an adverse finding on an

issue for which he has the burden of proof, he must demonstrate that the adverse

finding is against the great weight and preponderance of the evidence. Id. at 242;

Benavente v. Granger, 312 S.W.3d 745, 748 (Tex. App.—Houston [1st Dist.]

2009, no pet.) We may set aside the verdict only if the finding is so against the

great weight and preponderance of the evidence that it is clearly wrong and unjust.

Dow Chem. Co., 46 S.W.3d at 242; Benavente, 312 S.W.3d at 748; Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986). A jury may believe one witness and disbelieve

another, and it may resolve inconsistencies in any witness’s testimony. Eberle v.

Adams, 73 S.W.3d 322, 327 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).

      A trial court has wide discretion in denying a motion for new trial, and its

action will not be disturbed on appeal absent an abuse of discretion. Hicks v.




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Ricardo, 834 S.W.2d 587, 590 (Tex. App.—Houston [1st Dist.] 1992, no writ);

Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983).

      We review the grant or denial of a motion for JNOV under a legal-

sufficiency standard, under which the appellant must show that there is no

evidence to support the factfinder’s finding and the evidence conclusively

establishes the opposite of the finding. Dow Chem. Co., 46 S.W.3d at 241. The

trial court has broad discretion on whether to admit or to exclude evidence. Tex.

Workers’ Comp. Comm’n v. Wausau Underwriters Ins., 127 S.W.3d 50, 56 (Tex.

App.—Houston [1st Dist.] 2003, pet. denied). We review a trial court’s rulings on

the admissibility of evidence for an abuse of discretion. Gharda USA, Inc. v.

Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). An appellate court must

uphold the trial court’s evidentiary ruling if there is any legitimate basis for the

ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.

1998).

B.    Analysis

      1.    Chapter 14 Partial Dismissal

      Amir-Sharif’s claim is subject to Chapter 14 because he is an inmate who

has filed an affidavit of inability to pay costs. See TEX. CIV. PRAC. & REM. CODE

ANN. §§ 14.002(a), 14.004–5; Bell, 962 S.W.2d at 158.             In Amir-Sharif’s

grievance, he complained Bostic and Hightower had intentionally destroyed his



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personal property. The grievance contains the phrase “should have reasonably

known that their acts and omissions were violative of my well-established federal

rights of due process and of freedom from unlawful property seizures,” but it does

not describe any facts giving rise to a claim besides the destruction of his property.

Amir-Sharif’s grievance does not name other defendants or allude to other causes

of action.

      Amir-Sharif’s grievance complained only of his theft and conspiracy claims

against Bostic and Hightower arising out of their alleged conduct in taking and

destroying Amir-Sharif’s personal property. The facts alleged in Amir-Sharif’s

lawsuit involve individuals who were not identified in the grievance as well as

conversations and actions that were not the subject of the grievance. Amir-Sharif

thus failed to exhaust administrative remedies for the claims he asserts against the

previously unidentified defendants or for other causes of action, including

unrelated violations of federal and state due process based on retaliatory conduct

and violations of the Equal Protection Clause and the Texas Constitution, negligent

failure to train or supervise employees, or intentional infliction of emotional

distress. A claim has no arguable basis in law if the inmate has failed to exhaust

his administrative remedies regarding the operative facts underlying it. See TEX.

CIV. PRAC. & REM. CODE ANN. § 14.005 (West 1995); TEX. GOV’T CODE ANN. §




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501.008(d); Hill v. Smith, 14-11-00773-CV, 2012 WL 8017140, at *2 (Tex.

App.—Houston [14th Dist.] Feb. 16, 2012, no pet.) (mem. op.).

      Accordingly, the trial court acted within its discretion in dismissing these

claims. See Wolf v. Tex. Dep’t of Crim. Justice, Inst’l. Div., 182 S.W.3d 449, 451

(Tex. App.—Texarkana 2006, pet. denied) (“Wolf’s grievance does not address the

issue he brought in his civil petition, and we cannot say he either sought or

received a final administrative decision on those issues.”); Riddle v. Tex. Dep’t of

Crim. Justice, Inst’l. Div., 13-05-054-CV, 2006 WL 328127, at *2 (Tex. App.—

Corpus Christi Feb. 9, 2006, pet. denied) (mem. op.) (“Riddle did not exhaust the

grievance procedures for those individuals named in the claim who were not

named in his grievance.     Thus, Riddle did not fulfill all statutory procedural

requirements”.).

      To the extent that Amir-Sharif’s due process claim is related to the

destruction of his property, it fails as a matter of law. Inmates in Texas have no

arguable basis in law for asserting a due process claim for the intentional

destruction of their property because Texas inmates have a meaningful post-

deprivation remedy.     See TEX. GOV’T CODE ANN. § 501.007 (West 2011)

(providing a cause of action for inmates for damaged property); Hudson v. Palmer,

468 U.S. 517, 533, 104 S. Ct. 3194, 3203 (1984) (holding that intentional

deprivations of inmate property by a state employee do not constitute a violation of



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due process where meaningful postdeprivation remedies are available); Aguilar v.

Chastain, 923 S.W.2d 740, 744 (Tex. App.—Tyler 1996, writ denied) (holding that

Texas provides an adequate remedy for inmate property claims). We hold that the

trial court did not abuse its discretion in granting Bostic and Hightower’s motion to

dismiss Amir-Sharif’s claims that were not tried to the jury.

      2.     Sufficiency of the Evidence

      Amir-Sharif next complains that the evidence is legally and factually

insufficient to support the jury’s findings that Bostic did not unlawfully appropriate

Amir-Sharif’s property and that there was no retaliation or conspiracy against him.

Amir-Sharif points to testimony from offender property officer Brenda Juarez and

intake officer Betty Hightower as some evidence that Bostic had violated

Department policies during intake. Upon cross examination, however, Hightower

and Juarez clarified that neither Bostic nor Hightower had unlawfully appropriated

Amir-Sharif’s property or violated any Department policies. Bostic, grievance

investigator Kennard Palumbo, and Assistant Warden Kari Cook testified that

neither Bostic nor Hightower had engaged in any misconduct toward Amir-Sharif

nor violated any Department policies. The jury reasonably could have credited this

testimony, which precludes any conclusive showing of unlawful conduct. Further,

the jury’s resolution of this factual dispute is not against the great weight and

preponderance of the evidence. Accordingly, we hold that factually and legally



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sufficient evidence supports the jury’s findings that Bostic did not unlawfully

appropriate property from Amir-Sharif and that Bostic and Hightower did not

conspire or retaliate against him.

      3.     Other Complaints

      Amir-Sharif next complains that the trial court abused its discretion by

denying his motion for JNOV and his motion for new trial, in which Amir-Sharif

alleged that (1) the jury verdict was contrary to the weight of the evidence; (2) the

placement of an unadmitted exhibit in view of the jury undermined the integrity

and fairness of the jury verdict; (3) the defense attorney improperly mentioned the

absence of a settlement offer during closing argument; (4) the jury’s verdict was

legally and factually insufficient; (5) the defendants did not enjoy qualified

immunity; (6) the jury charge was improper; (7) the trial court abused its discretion

in denying his request for additional witnesses; (8) the trial court abused its

discretion by not requiring all eight defendants on duty to provide sworn affidavits;

(9) the trial court erred by not requiring production of the employee roster; (10) the

trial court erroneously found for the defendants on the issue of qualified immunity;

and (11) the trial court erroneously denied Amir-Sharif’s request for at least one of

the officers who trained Bostic and Hightower to testify.

      We have determined that legally and factually sufficient evidence supports

the jury verdict. This holding disposes of Amir-Sharif’s challenge to the trial



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court’s denial of his JNOV motion as well as the evidentiary sufficiency challenge

made in his motion for new trial. With respect to his trial presentation challenges,

Amir-Sharif waived his complaints by failing to contemporaneously raise them to

the trial court and obtain rulings on them. See TEX. R. APP. P. 52(a); Bushell v.

Dean, 803 S.W.2d 711, 712 (Tex. 1991).

      The record reveals that the jury did not reach the issue of qualified

immunity. The record further reveals that the jury charge instructed the jurors that,

“The Defendants have stipulated that Dedric Bostic took Plaintiff’s nitro glycerin

pills and two (2) asthma pumps. These were put into a box by Dedric Bostic and

destroyed.” Because the record contradicts Amir-Sharif’s new trial complaints

about these matters, we hold that the trial court did not abuse its discretion in

overruling them.

      Amir-Sharif contends that the trial court abused its discretion in excluding

testimony from prison officials and the officers who trained Bostic and Hightower.

Trial courts have discretion to exclude cumulative evidence. Parker v. Miller, 860

S.W.2d 452, 458 (Tex. App.—Houston [1st Dist.] 1993, no writ).              For the

exclusion of evidence to constitute reversible error, the complaining party must

show that (1) the trial court committed error and (2) the error probably caused the

rendition of an improper judgment.       State v. Cent. Expwy. Sign Assocs., 302

S.W.3d 866, 870 (Tex. 2009); McCraw v. Maris, 828 S.W.2d 756, 757 (Tex.



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1992); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). The

exclusion of evidence is harmless if the evidence is merely cumulative of other

evidence in the record. See McCraw, 828 S.W.2d at 762; Pyle v. S. Pac. Transp.

Co., 774 S.W.2d 693, 696 (Tex. App.—Houston [1st Dist.] 1989, writ denied).

      During a pretrial hearing, Amir-Sharif acknowledged that the witness he

would have called, A. Davis, would have contributed nothing of value because the

defendants had stipulated to the jury that they had destroyed Amir-Sharif’s

property, and the property forms identifying Amir-Sharif’s property were admitted

into evidence. Amir-Sharif complains that the property forms were insufficient in

lieu of officials’ testimony about the circumstances and Department policies. But

Amir-Sharif did not proffer evidence of the nature of their additional testimony.

Since the testimony would have been cumulative of the admitted property forms

and Amir-Sharif did not otherwise proffer the substance of their excluded

testimony, we hold that the trial court did not abuse its discretion in excluding it.

See McCraw, 828 S.W.2d at 762 (holding that exclusion of cumulative testimony

is not harmful). Nor has Amir-Sharif demonstrated that the exclusion of this

evidence resulted in an improper judgment.

      Amir-Sharif also contends that the Holliday Unit warden and the medical

department supervisor, as well as the officers who trained Bostic and Hightower

have personal knowledge of the facts and thus should have testified. But Amir-



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Sharif did not proffer the substance of their testimony. Amir-Sharif conceded that

no high-ranking prison officials were present when Bostic disposed of Amir-

Sharif’s property. His bare assertion that the testimony would have highlighted the

need for “further juror scrutiny” of Bostic’s and Hightower’s actions fails to

demonstrate that the trial court erred in excluding them as witnesses or that the

ruling probably caused the adverse judgment. See Cent. Expwy. Sign Assocs., 302

S.W.3d at 870 (holding that appellant must show that the exclusion probably

caused rendition of an improper judgment to show harm); McCraw, 828 S.W.2d at

757 (same); Gee, 765 S.W.2d at 396 (same).

      Amir-Sharif contends that the trial court abused its discretion by denying

him discovery by failing to compel production of affidavits of three of the eight

employees in the intake area and of the employee roster. Amir-Sharif alleges that

the three affidavits that he did not receive might have corroborated his account, but

acknowledges that he did not know what the employees would have testified.

Similarly, Amir-Sharif complains that the trial court’s denial of his request to

compel production of the turnout roster prevented him from accessing medical

personnel witnesses, but he does not identify what the witnesses would have

testified or show that testimony would have resulted in the rendition of a different

judgment. Because Amir-Sharif fails to demonstrate that the exclusion of the

witnesses probably caused the rendition of the adverse judgment, he has failed to



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demonstrate reversible error. See TEX. R. APP. P. 44.1; Cent. Expwy. Sign Assocs.,

302 S.W.3d at 870 (holding that appellant must show that the exclusion probably

caused rendition of an improper judgment to show harm); McCraw, 828 S.W.2d at

757 (same); Gee, 765 S.W.2d at 396 (same).

                                      Conclusion

      We affirm the judgment of the trial court.




                                             Jane Bland
                                             Justice

Panel consists of Justices Radack, Jennings, and Bland.




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