Opinion issued December 8, 2016




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-16-00046-CV
                            ———————————
 VICSANDRA JONES AND DARREN JONES, INDIVIDUALLY AND AS
       NEXT FRIENDS OF JOHN DOE, A MINOR, Appellants
                                         V.
                    JOSI CALDERON SHIPLEY, Appellee


                     On Appeal from the 61st District Court
                             Harris County, Texas
                       Trial Court Case No. 2015-56901


                            DISSENTING OPINION

      Because the majority mistakes extreme cases of assault for cases that establish

the minimum requirements of assault by threat, I respectfully dissent.

      In their first issue, appellants contend that the trial court erred in dismissing

their claim against Shipley for assault by threat of bodily injury. Under rule 91a of
the Texas Rules of Civil Procedure, “a party may move to dismiss a cause of action

on the grounds that it has no basis in law or fact.” TEX. R. CIV. P. 91a.1. Shipley’s

motion alleged that the Joneses’ petition had no basis in law.

      “A cause of action has no basis in law if the allegations, taken as true, together

with inferences reasonably drawn from them, do not entitle the claimant to the relief

sought.” Id. Courts must construe the pleadings liberally in favor of the non-movant

and accept as true the factual allegations in the pleadings to determine if a cause of

action has a basis in law. Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.—

Houston [14th Dist.] 2014, pet. denied).

      Courts apply the fair notice pleading standard in determining whether the facts

alleged in the petition provide a basis in law for recovery. Id. at 76; see also TEX.

R. CIV. P. 47(a); Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982) (“A petition is

sufficient if it gives fair and adequate notice of the facts upon which the pleader

bases his claim.”). Under this standard, pleadings are sufficient if a cause of action

can reasonably be inferred from the facts pleaded. McNeil v. Nabors Drilling USA,

Inc., 36 S.W.3d 248, 250 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

      In sum, the only question courts are presented with in a motion to dismiss

under rule 91a is whether the plaintiff’s pleadings can reasonably be construed to

allege the minimum quantum of facts that could support the cause of action. See




                                           2
TEX. R. CIV. P. 91a.1; Wooley, 447 S.W.3d at 76; McNeil, 36 S.W.3d at 250. I

believe the majority has misapplied this legal framework.

      The Joneses alleged that Shipley committed assault by threat. “The elements

of a civil assault mirror those of a criminal assault.” Loaisiga v. Cerda, 379 S.W.3d

248, 256 (Tex. 2012); see also Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d

636, 649 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (“The elements of

assault are the same in both the criminal and civil context.”). A person commits

assault by threat of bodily injury if she “intentionally or knowingly threatens another

with imminent bodily injury.” Loaisiga, 379 S.W.3d at 256 (citing TEX. PENAL

CODE ANN. § 22.01(a)(2) (Vernon Supp. 2015)). “Bodily injury is a broad term and

encompasses even relatively minor physical contacts so long as they constitute more

than mere offensive touching.” Forbes v. Lanzl, 9 S.W.3d 895, 900 (Tex. App.—

Austin 2000, pet. denied).

      I believe the majority’s analysis is flawed because it relies on extreme cases

of assault by threat and treats these as the baseline below which no claim for assault

can be supported. See, e.g., Wells v. May, No. 05-12-01100-CV, 2014 WL 1018135,

at *1 (Tex. App.—Dallas Feb. 12, 2014, no pet.) (mem. op.) (defendant made

repeated threats to kill plaintiff and followed her through building). There is simply

no support for this conclusion.




                                          3
      Oddly, most of the cases the majority relies on for support are cases for

aggravated assault with a deadly weapon. See Wilson v. State, 391 S.W.3d 131,

133–34 (Tex. App.—Texarkana 2012, no pet.) (defendant convicted of aggravated

assault with deadly weapon, hit complainant on head and back with enough force to

stun complainant, and walked toward complainant while holding sledgehammer);

Tidwell v. State, 187 S.W.3d 771, 772–73 (Tex. App.—Texarkana 2006, no pet.)

(defendant convicted of aggravated assault with deadly weapon, pointed gun at

complainant, and threatened to shoot him); Rogers v. State, 877 S.W.2d 498, 499

(Tex. App.—Fort Worth 1994, pet. ref’d) (defendant convicted of aggravated assault

with deadly weapon, threatened to cut complainant’s head off, and pulled out a

knife).

      Aggravated assault is a separate offense under the penal code and it includes

elements that are not required under the statute that forms the basis for civil assault.

See TEX. PENAL CODE ANN. § 22.02(a) (Vernon 2011) (creating separate offense for

committing assault under section 22.01 while causing serious bodily harm or while

using or exhibiting deadly weapon); Loaisiga, 379 S.W.3d at 256 (citing section

22.01(a) for elements of civil assault). Indeed, the fact that the law distinguishes

between these types of assaults undermines the majority’s argument by establishing

that what the majority is treating as the minimum quantum of proof is actually a

different and more extreme type of assault.



                                           4
      The majority’s reliance on Pickens fails for the same reason. See Pickens v.

Fletcher, No. 4:12-cv-1196, 2013 WL 2618037, at *2 (S.D. Tex. June 11, 2013)

(defendant screamed he would kill plaintiff and pointed a gun at him). While

Pickens is a civil case, it corresponds to the elevated criminal offense of aggravated

assault with a deadly weapon. See id.; PENAL § 22.02(a)(2) (establishing offense for

committing assault while exhibiting deadly weapon). The Joneses did not allege

aggravated assault, and they are not required to plead it in order to recover. See

Loaisiga, 379 S.W.3d at 256.

      The cases finding insufficient evidence of assault by threat that the majority

relies on also undermines its argument. In Anderson, we held that words alone

cannot support a claim for assault by threat. Texas Bus Lines v. Anderson, 233

S.W.2d 961, 963 (Tex. Civ. App.—Galveston 1950, writ ref’d n.r.e.). Instead, any

threatening words must be coupled with a “threatening gesture.” Id. at 964. In fact,

we recognized that when words are coupled with a threatening gesture, assault is

established, “whatever be the means or degree of violence used.” Id.

      The only evidence in Anderson of a gesture was the testimony that it “looked

like” the bus driver would kick the plaintiff if he attempted to board the bus. Id. at

963. We held that looking like a gesture would occur was insufficient. See id. at

964. Nowhere in the opinion did this Court rely on the facts cited by the majority to

hold that the claim for assault failed.



                                          5
      Likewise, the claim in Moore failed because there was no actual threat. Moore

v. City of Wylie, 319 S.W.3d 778, 780, 783 (Tex. App.—El Paso 2010, no pet.)

(supervisor poked employee in chest three or four times and told him to do his job).

      In contrast to the authority the majority identifies as controlling, case law

establishes that the Joneses have sufficiently pleaded a cause of action against

Shipley. When a threat of imminent bodily harm is coupled with a threatening

gesture, a claim for civil assault is established, “whatever be the means or degree of

violence used.” Anderson, 233 S.W.2d at 964. “Bodily injury is a broad term and

encompasses even relatively minor physical contacts so long as they constitute more

than mere offensive touching.” Forbes, 9 S.W.3d at 900.1 There is no requirement

that the threat be more elevated than the low level of injury required to sustain an

action for assault.

      The Joneses alleged that that Doe witnessed Shipley threaten him to his

mother a week prior to the field trip, that Doe was sitting alone during the relevant

point of the field trip, that Shipley rushed over to him from 50 feet away, and that

Shipley put her finger within inches of Doe’s face in an aggressive manner before

telling him that she was going to get him. Shipley and the majority argue that


1
      See also Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989) (“In fact, the
      degree of injury sustained by a victim and the ‘type of violence’ utilized by an
      accused appear to be of no moment . . . .”).




                                          6
threatening to “get” Doe was too vague and insufficiently imminent to constitute a

threat. What meaning to apply to threatening to get someone is a fact issue to be

resolved by the jury, not an appellate court. See Hernandez v. State, 470 S.W.3d

862, 869 (Tex. App.—Fort Worth 2015, pet. ref’d) (holding any ambiguity in

meaning of phrase “you’re going down” was matter for jury to resolve); Wooley,

447 S.W.3d at 76 (holding pleading are construed liberally in favor of pleader);

Forbes, 9 S.W.3d at 900 (holding “bodily injury” encompasses relatively minor

physical contacts).

      The majority also argues that Shipley’s prior threat to get Doe expelled, which

the majority describes as a “more precise[]” threat, established that Shipley’s threat

to get Doe was not an imminent threat. The majority provides no explanation for

how the threat to Doe’s mother to have Doe expelled must be construed as a matter

of law to “more precisely” reflect the meaning behind the threat to get Doe at a time

he was unaccompanied by any adult. Without such a showing, we must view the

allegations in the light most favorable to the Joneses. See Wooley, 447 S.W.3d at

76.

      I would hold that the Joneses sufficiently pleaded a cause of action of assault

by threat against Shipley.2 Accordingly, I would sustain the Joneses’ first issue.


2
      Shipley also argues in her brief that the Joneses’ pleadings were insufficient to
      support the requisite mental state for assault. Because it was not raised in Shipley’s
      motion for dismissal, this argument cannot be considered on appeal. See 7-Eleven,

                                            7
                                         Conclusion

      I would reverse the trial court’s order granting Shipley’s motion to dismiss

and remand for further proceedings. Because I believe the majority errs by affirming

the dismissal, I respectfully dissent.




                                                 Laura Carter Higley
                                                 Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.

Justice Higley, dissenting from the judgment.




      Inc. v. Nat’l Union Ins. Co. of Pittsburgh, Pa., 33 Fed. Appx. 703 at *7 (5th Cir.
      2002) (holding appellee could not make argument on appeal that was not made in
      trial court to support dismissal under analogous federal rule); see also TEX. R. CIV.
      P. 91a.2 (“A motion to dismiss . . . must state specifically the reasons the cause of
      action has no basis in law . . . .”); Drake v. Walker, No. 05-14-00355-CV, 2015 WL
      2160565, at *3 n.2 (Tex. App.—Dallas May 8, 2015, no pet.) (mem. op.) (refusing
      to consider argument raised in brief but not in motion to dismiss).

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