                                  NUMBER 13-09-00421-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI – EDINBURG

MARIA ESTER SALINAS,                                                                       Appellant,

                                                    v.

NORBERTO SALINAS,                                                                           Appellee.


                       On appeal from the 206th District Court
                             of Hidalgo County, Texas.


                 MEMORANDUM OPINION ON REMAND
                   Before Justices Garza, Benavides and Wittig1
                     Memorandum Opinion by Justice Garza
        A jury found appellant, Maria Ester Salinas (“Ester”), liable for slander and

awarded appellee, Norberto Salinas (“Norberto”), $30,000 in damages. By six issues,
        1
         Justice Linda Reyna Yañez was a member of the panel at the time this case was initially argued
and submitted for decision in 2010. However, Justice Yañez could not participate in deciding the case,
see TEX. R. APP. P. 41.1, and retired Justice Don Wittig was assigned to this Court by the Chief Justice of
the Supreme Court of Texas pursuant to the Texas Government Code. See TEX. GOV’T CODE ANN. §
74.003 (West Supp. 2004).
Ester challenges the trial court’s judgment on the verdict. We reverse and render.

                                          I. BACKGROUND

       Norberto is the mayor of Mission, Texas. Ester is a self-described community

activist representing the interests of residents affected by chemical contamination at the

former Hayes-Sammons pesticide plant in Mission.                   After years of research and

investigation, Ester discovered that Mission residents were suffering “abnormal” health

problems which she believed were caused by chemicals emanating from the Hayes-

Sammons plant. Ester believed that city officials, including Norberto, were negligent in

failing to notify the affected residents that their land was contaminated and in failing to

arrange for the residents to be relocated from the contaminated areas.

       At an August 25, 2005 Mission city council meeting, at which Norberto was

present, Ester made the following statement:

       Good afternoon Mayor and Members of the Council and public. Maria
       Ester Pena Salinas, we the people from the super fund areas demand
       justice, justice for all where is it[?] Congratulation[s] to Miss Flores and I
       wish the five hundred . . . babies who were born died [sic] also had that
       opportunity to live and breath[e] unfortunately five hundred . . . of our
       babies were lost and nobody seems to care and if they do care there is no
       justice. It’s unfortunate what that is [sic] has taken decades for EPA and
       all entities to come in and say that they are going to see if there is any
       contaminations [sic] stop play[ing] games with our lives. We are the
       people from the super funds and it[’]s time for[] relocation. You[] all paid
       an ex city [council] member a hundred and eighty-five thousand[] for him
       to resign[,] well we want to be relocated. You are paying for additional
       council where there is TL TML funds[,] why did you use those funds, why
       did you have to hire someone at two hundred dollars an hour[? S]ome of
       my people got a hundred and twelve dollars and you know what justice
       day will come and some of you will be judged for the way you have stolen
       and lied and killed[.] But yet you continue to act as if you are in denial and
       I know you are timing me sir.

Norberto sued Ester for defamation on the basis of this statement.2


       2
           Norberto intervened in an existing defamation suit against Ester brought by Pat Townsend, a

                                                   2
       Subsequently, in October 2008, Ester made the following statement while being

interviewed on a local Telemundo television program: “So, we have to go fight in court

because even the mayor in La Joya told me that Norberto Salinas went to talk to him to

say that they were going to kill me.” Norberto amended his pleadings to include this

statement as an additional basis for his defamation claim. Norberto also later added to

his defamation claim an allegation that Ester “called him a drug dealer and said th[at] he

is politically corrupt.”

       After trial, the trial court found as a matter of law that all three statements—the

city council statement, the Telemundo statement, and the drug dealer statement—were

defamatory per se as to Norberto. The jury then found that the statements were false

and that Ester made them with actual malice. The jury concluded that the city council

statement and the drug dealer statement caused Norberto to suffer mental anguish;

however, it found that the Telemundo statement did not cause Norberto to suffer mental

anguish. The jury awarded $30,000 to Norberto for past mental anguish “that resulted

from the occurrence in question.”

       On appeal, Ester contended that: (1) her speech was constitutionally protected;

(2) her statements were not, as a matter of law, unambiguous defamatory statements of

fact; (3) Norberto did not prove mental anguish; (4) Norberto did not prove that her

statements were made with actual malice; (5) there was a fatal variance between the

pleadings and the proof; and (6) the trial court erred in admitting certain evidence. We

initially affirmed the judgment awarding damages to Norberto. Salinas v. Townsend,


former Mission mayor and city manager. Townsend prevailed on his defamation claim at trial and was
awarded $10,000 in damages. However, we reversed the judgment in favor of Townsend. Salinas v.
Townsend, 365 S.W.3d 368, 380–82 (Tex. App.—Corpus Christi 2011), rev’d on other grounds by Salinas
v. Salinas, 365 S.W.3d 318 (Tex. 2012) (per curiam). The Texas Supreme Court did not disturb our
judgment as it relates to Townsend. 365 S.W.3d at 320 n.1.

                                                3
365 S.W.3d 368, 380–82 (Tex. App.—Corpus Christi 2011), rev’d, 365 S.W.3d 318

(Tex. 2012) (per curiam). In particular, we concluded that: (1) the mere fact that one of

the allegedly defamatory statements was made during an official city government

proceeding does not shield Ester from liability; (2) the Telemundo statement was an

unambiguous statement of fact, was defamatory per se, and was made with actual

malice; (3) Norberto did not need to prove mental anguish because the law presumes

actual damages where the words used are slanderous per se; (4) the variance between

the pleadings and the proof was not substantial, misleading, or prejudicial; and (5) the

trial court did not err by admitting evidence of a “fee sharing agreement” Ester had

entered into with an attorney. 365 S.W.3d at 379–87. We did not address whether the

2005 city council statement or the drug dealer statement were properly categorized as

defamatory per se, nor did we address whether those statements were made with

actual malice, “because at least one of the grounds upon which the jury based its

damage award [i.e., the Telemundo statement] was legally valid,” and Ester “did not

object to the broad-form damages question on the basis that more than one such

question should have been submitted . . . .” Id. at 385 (citing Wackenhut Corr. Corp. v.

De La Rosa, 305 S.W.3d 594, 619–21, n.26 (Tex. App.—Corpus Christi 2009, no pet.)).

      The Texas Supreme Court reversed, concluding that the judgment awarding

$30,000 in mental anguish damages could not be sustained solely on the basis of the

Telemundo statement because the jury found that Norberto suffered no mental anguish

as a result of that statement. 365 S.W.3d at 320. The Court further concluded that,

“even if some mental anguish can be presumed in cases of defamation per se, . . . the

law does not presume any particular amount of damages beyond nominal damages.”



                                           4
Id.3 The Court remanded to us to determine “[w]hether the judgment should stand

based on the other two allegedly defamatory statements . . . .” Id. at 321.

                                           II. DISCUSSION

        By her second issue on appeal, Ester argues that the trial court erred by finding

the statements to be per se defamatory. By her third issue, she contends that there

was legally and factually insufficient evidence to support the jury’s finding that Norberto

suffered mental anguish. By her fourth issue, Ester contends that legally and factually

insufficient evidence was adduced at trial to establish that she made the statements

with actual malice. We will consider these issues as they apply to the 2005 city council

statement and the drug dealer statement.

        For an oral statement to constitute slander per se, it must fall within one of four

categories: (1) imputation of the commission of a crime; (2) imputation of a loathsome

disease; (3) injury to a person's office, business, profession, or calling; or (4) imputation

of sexual misconduct. Minyard Food Stores, Inc. v. Goodman, 50 S.W.3d 131, 140

(Tex. App.—Fort Worth 2001), rev’d on other grounds, 80 S.W.3d 573 (Tex. 2002). If


        3
           In concluding that only nominal damages are presumed in cases of defamation per se, the
Court appears to have overruled prior case law stating explicitly that no proof of any actual damages is
required in such cases. See, e.g., Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex.
1984) (affirming award of $1,500 in mental anguish damages because “[t]he law presumes a statement
which is libelous per se defames a person and injures his reputation”); Knox v. Taylor, 992 S.W.2d 40, 60
(Tex. App.—Houston [14th Dist.] 1999, no pet.) (rejecting challenge to sufficiency of evidence supporting
mental anguish damages award because “[i]n the recovery on a claim of defamation per se, the law
presumes actual damages and no independent proof of damages to reputation or of mental anguish is
required”); Mitre v. Brooks Fashion Stores, Inc., 840 S.W.2d 612, 620 (Tex. App.—Corpus Christi 1992,
writ denied) (“[I]n a case of defamation per se, the law presumes actual damages and no independent
proof of damages to reputation or of mental anguish is required.”), overruled on other grounds by Cain v.
Hearst Corp., 878 S.W.2d 577, 578 (Tex. 1994); Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d
914, 922 (Tex. App.—Corpus Christi 1991, writ dism’d) (rejecting a challenge to the sufficiency of the
evidence supporting award of $19,791.66 in mental anguish damages because, “[w]hen words are
slanderous per se, the law presumes actual damage”); see also Groden v. Allen, 279 Fed. Appx. 290,
295 (5th Cir. 2008) (rejecting appellant’s challenge to sufficiency of the evidence supporting damages
award “[b]ecause this case involves defamation per se” and “no proof of actual damages was required”).


                                                   5
the statement is not slanderous per se, the plaintiff must plead and prove special

damages—i.e., some form of pecuniary or economic loss—in order for the statement to

be actionable as slander per quod. Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88,

94 (Tex. App.—Corpus Christi 1992, writ dism’d w.o.j.). Norberto has not alleged or

requested special damages, nor has he asserted that Ester’s statements imputed

disease or sexual misconduct, or injured his office, business, profession, or calling.

Therefore, Ester’s statements will be actionable only if they are deemed to be

slanderous per se by virtue of having imputed to Norberto the commission of a crime.

See Minyard Food Stores, Inc., 50 S.W.3d at 140 (listing categories of statements that

are per se defamatory); Kelly, 832 S.W.2d at 94 (slander plaintiff must plead and prove

special damages in order to recover for defamation per quod); Mitre v. Brooks Fashion

Stores, Inc., 840 S.W.2d 612, 619 (Tex. App.—Corpus Christi 1992, writ denied),

overruled on other grounds by Cain v. Hearst Corp., 878 S.W.2d 577, 578 (Tex. 1994)

(noting that a statement that unambiguously and falsely imputes criminal conduct to

plaintiff is defamatory per se). A statement will constitute slander per se if an ordinary

person would draw a reasonable conclusion that the complaining party was being

accused of violating of some criminal law. Mitre, 840 S.W.2d at 620.

      1.     City Council Statements

      We first consider Ester’s statement at the 2005 city council meeting. At this

meeting, Ester, addressing Norberto and the city council, stated in part that “some of

you will be judged for the way you have stolen and lied and killed.”

      We must evaluate the nature of a statement in light of all surrounding

circumstances.   Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000);



                                            6
Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 654–55 (Tex. 1987). Here,

those circumstances include the fact that Ester was speaking in a public forum about an

issue—and concerning a public official—with which the audience was intimately familiar.

Under such circumstances, even assuming that Ester’s remarks unambiguously

referred to Norberto and expressed objectively verifiable facts about him, we do not

believe that a person of “ordinary intelligence” would have concluded from those words

that Norberto was being accused of violating a criminal law. See Mitre, 840 S.W.2d at

620. That is, an ordinary person hearing Ester’s remarks would not have understood

them as meaning that Norberto actually engaged in theft or murder; instead, such a

person would have understood the remarks as harsh, acerbic—and possibly

unfounded—criticisms of Norberto’s performance as mayor. See New Times, Inc. v.

Isaacks, 146 S.W.3d 144, 154 (Tex. 2004) (citing N. Y. Times Co., 376 U.S. at 270)

(recognizing the “profound national commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open, and that it may well include

vehement, caustic, and sometimes unpleasantly sharp attacks on government and

public officials”).

       As we stated in our 2011 opinion:

       [C]ertain public officials—namely, those in policymaking positions such as
       mayor—are prone to receiving hyperbolic criticism precisely because of
       the power they wield and the often momentous consequences of their
       official decisions. For example, a citizen may accuse a legislator of being
       a “murderer” because that legislator supports the death penalty. There,
       the citizen is relying on an objective fact—that the legislator supports a
       policy that may lead to the deaths of individuals—but is embellishing that
       fact to reflect the citizen’s belief that the legislator bears personal
       responsibility for any lives lost as a result of that policy. In any case, no
       reasonable person listening to the citizen’s statement could believe that
       the legislator had just been accused of committing a crime. Instead, an
       ordinary person would believe that the citizen merely disagreed with the

                                            7
      legislator’s policy choices and chose to express that disagreement in
      unusually stark terms. This analogy also holds for matters less weighty
      than the morality of capital punishment—for example, a citizen may call a
      county commissioner a “thief” because he or she advocates higher taxes;
      or, a citizen may call a judge a “crook” because of some perceived bias.
      In both cases, the citizen uses words that, under normal circumstances,
      imply the commission of a crime. But, given the public status of the
      individuals made the subject of those statements, no ordinary listener—
      i.e., no one that “exercises care and prudence”—would reasonably believe
      that the speaker was actually making accusations of criminal behavior.
      Without any elaboration, such remarks instead reflect only the citizen’s
      strong disagreement with the officials’ lawful exercise of discretion in their
      role as public servants.

Salinas, 365 S.W.3d at 381–82 (citations omitted).

      Given Norberto’s status as mayor, and given the well-understood context

surrounding the Hayes-Sammons affair, no ordinary listener would have perceived

Ester’s remarks at the 2005 city council meeting as having charged Norberto with

committing crimes. The only reasonable conclusion an ordinary listener could have

drawn from those remarks is that Ester fiercely disapproved of how Norberto performed

his official duties with regard to the chemical contamination at the Hayes-Sammons

plant, and that she believed that severe harm resulted from his official decisions. The

remark—whether true or false—could not have been reasonably understood by an

ordinary listener as having charged Norberto with criminal behavior.

      We therefore conclude that the trial court erred in classifying Ester’s 2005

statement as slanderous per se. Because Norberto did not plead or prove special

damages, the trial court was bound to dismiss Norberto’s claim regarding this




                                            8
statement. See Kelly, 832 S.W.2d at 94; Stearns, 543 S.W.2d at 662. We sustain

Ester’s second issue as it relates to this statement.4

        2.      “Drug Dealer and Corrupt Politician”

        We next address the statements found to be made by Ester to the effect that

“Norberto Salinas is a drug dealer and corrupt politician.”5

        The evidence related to this allegation included testimony by Jose Montes, a

Mission resident. Montes testified that Ester, upon seeing Norberto’s campaign poster

on Montes’s house, told Montes that Norberto was “a big rat.” When Montes was asked

at trial what he understood Ester to mean by those words, he stated that “a big rat is—

well, I understand it’s like a—somebody big and like—well, you know, control of

something, you know. . . . Well, like somebody, you know—rat means like somebody

stealing or something.” There was no other evidence adduced as to the meaning of the

words “big rat.”

        Domingo De La Garza, another resident of Mission, testified that he is close

friends with Norberto and the two have known each other since they were children. De

La Garza stated that he knew Ester “because I used to work at the H-E-B in Mission

and I used to—and I had the job of picking up the carts that people would take to their


        4
         In light of our conclusion that Ester’s August 25, 2005 statement was not defamatory per se, we
need not address Ester’s third or fourth issues, challenging the sufficiency of the evidence as to mental
anguish and actual malice, as it relates to that statement. See TEX. R. APP. P. 47.1
        5
         We note here, as we did in our 2011 opinion, that no witness testified that Ester ever used the
words “corrupt politician” to describe Norberto. Ester’s counsel objected at trial to the submission of jury
charge question number ten, which asked whether Ester “made” the statement that “Norberto Salinas is a
drug dealer and corrupt politician,” on this basis. However, the trial court overruled the objection, and
Ester does not challenge that ruling on appeal, nor does she challenge the sufficiency of the evidence
supporting the jury’s finding that she made the statement. Accordingly, we may not consider the issue.
See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (“[T]he courts of appeals may not reverse the
judgment of a trial court for a reason not raised in a point of error.”) (citing Vawter v. Garvey, 786 S.W.2d
263, 264 (Tex. 1990); San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 210 (Tex. 1990)).


                                                     9
homes. And I used to pick up the carts in front of [Ester’s] home every third or fourth

day.”   According to De La Garza, Ester once called Norberto a “drug dealer” at a

grocery store in front of “six or seven” other people, and she “told me loud enough for

people to hear what she was telling me.” De La Garza testified that Ester “used to call

[Norberto] a drug [l]ord, she told me that two or three times.”6                       Considering the

circumstances, we believe that an ordinary listener would have understood this

statement as accusing Norberto of having committed a crime. See, e.g., TEX. HEALTH &

SAFETY CODE ANN. §§ 481.001–.314 (West Supp. 2011) (Texas Controlled Substances

Act). Accordingly, the trial court did not err in classifying this statement as per se

defamatory.7

        Moreover, Ester testified that she did not believe Norberto is a drug dealer. This

evidence was significant enough to allow the jury, having already concluded that Ester

made the statement, to form a firm belief or conviction that she knew the statement was

false. Accordingly, the evidence was legally and factually sufficient to establish that

Ester acted with actual malice in making the statement. See Isaacks, 146 S.W.3d at

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


        6
          Although De La Garza did not initially volunteer that Ester called Norberto a “drug dealer,” he
indicated later in his testimony that Ester did in fact use those words:

        Q.      How many times, again, without guessing and without going through every single
                instance, how many times do you remember [Ester] saying to you in front of other
                people that [Norberto] Salinas was a drug dealer?

        A.      Well, that I can recall, only about three or four times.
        7
           Because we have concluded that the accusation of being a “drug dealer” is slanderous per se—
and because Ester does not contend on appeal that the trial court erred by submitting the statement
“Norberto Salinas is a drug dealer and corrupt politician” to the jury—we need not address whether the
accusation of being a “corrupt politician” is also slanderous per se. That is, even if we were to find that
the accusation of being a “corrupt politician” is not slanderous per se, the phrase as submitted to the jury
would still constitute slander per se because it included an accusation that Norberto is a “drug dealer.”


                                                     10
(noting that, in defamation cases, “‘actual malice’ requires proof that the defendant

made the statement ‘with knowledge that it was false or with reckless disregard of

whether it was true or not’”). We overrule Ester’s second and fourth issues as they

relate to the “drug dealer” statement.

       However, given the Texas Supreme Court’s ruling that “the law does not

presume any particular amount of damages beyond nominal damages” in defamation

per se cases, Salinas, 365 S.W.3d at 321, our inquiry is not complete. We must next

determine if the evidence was legally sufficient to support the jury’s award of $30,000 in

past mental anguish damages based on the “drug dealer” statement alone. An award of

mental anguish damages will survive a legal sufficiency challenge only if the plaintiff has

introduced “direct evidence of the nature, duration, and severity of [his] mental anguish,

thus establishing a substantial disruption in [his] daily routine,” or other evidence of “a

high degree of mental pain and distress” that is “more than mere worry, anxiety,

vexation, embarrassment, or anger.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444

(Tex. 1995). “Courts should ‘closely scrutinize’ awards of mental anguish damages.”

Gunn Infiniti v. O’Byrne, 996 S.W.2d 854, 860 (Tex. 1999) (quoting Universe Life Ins.

Co. v. Giles, 950 S.W.2d 48, 54 (Tex. 1997)). “Not only must there be evidence of the

existence of compensable mental anguish, there must also be some evidence to justify

the amount awarded.” Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607,

614 (Tex. 1996).

       Norberto’s wife, Maria Yvonne Salinas (“Maria”), testified that Norberto was

“highly embarrassed” and “became very withdrawn” because of Ester’s remarks. Maria

stated that Norberto “became very introverted” and no longer attended the “city



                                            11
Christmas party” because he was embarrassed and “didn’t want to face the scrutiny or

the questions any more.”         She stated that Norberto considered not running for re-

election in 2007 because of the embarrassment.8 He eventually ran for mayor, and

won, but “[i]t was a very difficult race because he was embarrassed.” Norberto himself

testified that “[i]t’s pretty embarrassing, you know, being that I’m a strong man, you

know, I really feel that I’ve been able to deal with it very well.” This was the entirety of

the evidence adduced as to mental anguish suffered by Norberto.

       We conclude that this evidence was insufficient to support the jury’s award of

$30,000 in mental anguish damages. Maria’s testimony established that Norberto felt

embarrassed because of Ester’s remarks, and that Norberto’s behavior changed

somewhat as a result of that embarrassment, but there was no evidence adduced that

Ester’s remarks caused a “substantial disruption in [Norberto’s] daily routine.”                  See

Parkway Co, 901 S.W.2d at 444. Moreover, we find no evidence that Norberto suffered

“a high degree of mental pain and distress” beyond “mere worry, anxiety, vexation,

embarrassment, or anger,” see id., especially in light of Norberto’s admission that he

has “been able to deal with [the embarrassment] very well.”

       The evidence was legally insufficient to support the jury’s award of $30,000 in

mental anguish damages based upon the “drug dealer” statement. Ester’s third issue is

sustained as it relates to that statement.

                                          III. CONCLUSION

       Neither the 2005 city council statement nor the “drug dealer” statement were

valid grounds upon which the $30,000 mental anguish damages award could have been

       8
          We note that Norberto has since been twice re-elected as mayor, in 2007 and 2010. See City of
Mission, Election Results, http://www.missiontexas.us/city-departments/city-secretary/elections (last
visited Sept. 5, 2012).

                                                  12
based. Accordingly, the judgment of the trial court awarding such damages is reversed,

and we render judgment that Norberto take nothing by way of his claims against Ester.



                                               ________________________
                                               DORI CONTRERAS GARZA
                                               Justice

Delivered and filed the
13th day of September, 2012.




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