     Case: 14-20737      Document: 00513283304         Page: 1    Date Filed: 11/23/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 14-20737                       November 23, 2015
                                                                           Lyle W. Cayce
RICHARD C. KING,                                                                Clerk


              Plaintiff - Appellant

v.

PATTI LABELLE, also known as Patricia Edwards; ZURI KYE EDWARDS;
EFREN HOLMES; NORMA HARRIS; PATTONIUM, INCORPORATED,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-2396


Before JOLLY, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       A jury returned a defense verdict in a civil assault case. Plaintiff Richard
King argues that two jury instructions were erroneous and that a new trial
should have been granted with respect to one of the defendants on evidentiary
grounds. Finding that the district court did not abuse its discretion in its
treatment of these issues, we AFFIRM.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-20737


                                         I.
      The altercation took place at Bush Intercontinental Airport in Houston.
King was a West Point cadet returning home for spring break. The three
defendants were traveling with singer Patti LaBelle to a performance at a
Louisiana casino. 1 Because King was severely intoxicated that night and
suffered a head injury in the incident, he has no memory of the event. The
defendants testified that King was visibly drunk; tried to enter LaBelle’s
limousine in the minutes leading up to the altercation; called LaBelle a
derogatory, racial name; and then punched Edwards in the face after Edwards
told King to stop. Holmes and Harris testified that they intervened to push
King back, away from Edwards.            King argues that surveillance video
conclusively discredits the defendants’ testimony and shows that Edwards
threw the first punch, after which Holmes and Harris repeatedly punched and
pushed King, knocking his head into a cement pillar.
      King sued the defendants for assault, among other claims, and Edwards
asserted a counterclaim for assault. On King’s claims, the jury found that
Edwards and Holmes assaulted him, but that that assault was justified by both
defense of self and others. The jury found that Harris did not assault King. As
for the counterclaim, the jury found that King assaulted Edwards, but awarded
no damages for that act.
      King filed a Rule 59 motion for a new trial, challenging two jury
instructions and contending that the jury acted against the weight of the
evidence in finding that Norma Harris did not commit assault. The district
court denied the motion.


      1 Holmes was LaBelle’s bodyguard. Edwards was her son and manager. Norma
Harris was her hairdresser and assistant. LaBelle was named as a defendant but later
dismissed from the suit.
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                                     No. 14-20737
                                            II.
      We review for abuse of discretion both challenges to jury instructions and
the denial of a motion for new trial on evidentiary grounds. Battle v. Mem’l
Hosp. at Gulfport, 228 F.3d 544, 555 (5th Cir. 2000) (internal citation omitted)
(jury instructions); Dresser-Rand Co. v. Virtual Automation, Inc., 361 F.3d 831,
839 (5th Cir. 2004) (motions for new trial based on argument that verdict was
against great weight of the evidence).
      King first argues that, under Texas law, a defendant is entitled to a self-
defense or defense of third person instruction only if he admits committing the
underlying assault. Even assuming Texas law governs the form of the jury
charge in this diversity case, we read its case law differently. The civil cases
King cites permit the very structure to which he objects—a question on
whether there was an assault and, if the answer to that question is “yes,” a
separate question on whether the assault was justified. See Gibbins v. Berlin,
162 S.W.3d 335, 340–41 (Tex. App. 2005) (holding that best practice is to
include separate questions on assault and self-defense); Norris v. Branham,
557 S.W.2d 816, 817–18 (Tex. Civ. App. 1977) (holding that a “yes” answer on
both a question of assault and a question of self-defense did not conflict). King
cannot point to—and we cannot find—any cases in which a court has found
error in giving the separate instructions as the district court did.
      King also challenges an instruction the district court gave allowing the
jury to presume the reasonableness of a defendant’s belief that force was
necessary if “the defendant knew or had reason to believe that King unlawfully
and with force entered, or was attempting to enter, the defendant’s occupied
vehicle.” 2 King contends his alleged attempt to enter the limousine was not



      2 The presumption also required findings that the defendant did not provoke King and
was not otherwise engaged in criminal activity.
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                                 No. 14-20737
close enough in time to the fight to warrant the instruction.           But the
presumption language, which is a correct statement of Texas law (Tex. Penal
Code § 9.31(a)), was implicated only if the jury found that the defendant knew
or had reason to know that King entered with force or was attempting to enter
the vehicle. We see no abuse of discretion in leaving that factual determination
to the jury and then accurately instructing the jury on the legal consequences
of its potential finding.
      King also contends that the verdict finding that Norma Harris did not
assault him was against the great weight of the evidence because Harris
admitted to “pushing” King. He argues that the video shows that her push
caused King’s head to hit the cement pole. King is unable to meet the high
standard needed to overturn a district court’s determination that a verdict was
not against the great weight of evidence. Wellogix, Inc. v. Accenture, L.L.P.,
716 F.3d 867, 881 (5th Cir. 2013) (“The district court abuses its discretion by
denying a new trial only when there is an absolute absence of evidence to
support the jury’s verdict.”) (internal citation and quotation omitted). Physical
contact alone, including pushing, does not automatically constitute assault
under Texas law. The defendant must either cause bodily injury, or know or
have reason to know that the victim would regard the contact as offensive or
provocative. Tex. Penal Code § 22.01(a). The district court explained that the
jury could have concluded that Harris’s pushing Edwards did not result in
bodily injury and would not necessarily be regarded as offensive within the
context of the altercation.
      In his brief, King also challenged the sufficiency of the evidence to
support the jury’s finding that Holmes and Edwards acted in defense of
themselves and others. But no Rule 50 motion for judgment as a matter of law
was made in the trial court. King’s counsel seemed to concede at oral argument
that these arguments are foreclosed. Indeed, unless a Rule 50(b) motion is
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                                  No. 14-20737
made to allow the trial judge the first opportunity to review the evidentiary
support for a verdict, “an appellate court is ‘powerless’ to review the sufficiency
of the evidence after trial.” Ortiz v. Jordan, 562 U.S. 180, 189 (2011) (quoting
Unitherm Food Sys., Inc. v. Swift–Eckrich, Inc., 546 U.S. 394, 405 (2006)).
      We therefore find no error that warrants disrupting the jury’s verdict.
The judgment is AFFIRMED.




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