                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00565-CV

                                            Kelly WALLS,
                                              Appellant

                                                   v.
                                                Daniel
                                            Daniel KLEIN,
                                              Appellee

                     From the 150th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2012-CI-11285
                              Honorable Dick Alcala, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 9, 2014

AFFIRMED

           Kelly Walls appeals the trial court’s judgment granting a permanent injunction in favor of

Daniel Klein and awarding him damages for his breach of contract and defamation claims. On

appeal, Walls contends: (1) Klein’s attorney engaged in incurable improper jury argument; (2) the

trial court erred in admitting an exhibit that was not properly authenticated; (3) the injunction is

unsupported by the jury’s findings and constitutes an unconstitutional prior restraint on speech;

and (4) the trial court erred in failing to rule on Walls’s affirmative defenses. We affirm the trial

court’s judgment.
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                                         BACKGROUND

       The factual and procedural background regarding the dispute between Walls and Klein is

set forth in detail in this court’s prior opinion modifying and affirming a temporary injunction in

Klein’s favor. See Walls v. Klein, No. 04-12-00615-CV, 2013 WL 988179, at *1-2 (Tex. App.—

San Antonio Mar. 13, 2013, no pet.) (mem. op.). After this court affirmed the temporary

injunction, a jury trial was held, and the jury answered questions relating to the permanent

injunction and Klein’s counter-claims for breach of contract, defamation, and invasion of privacy.

The trial court entered judgment based on the jury’s findings, and Walls appeals.

                                  IMPROPER JURY ARGUMENT

       In her first issue, Walls asserts “Klein’s jury arguments were so extreme and unsupported

as to represent incurable error.” “To prevail on a claim that improper argument was incurable, the

complaining party generally must show that the argument by its nature, degree, and extent

constituted such error that an instruction from the court or retraction of the argument could not

remove its effects.” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680-81 (Tex. 2008).

“Examples of incurable improper jury arguments can include appeals to racial prejudice,

unsupported accusations of witness tampering by the opposing party, and unsupported, extreme,

and personal attacks on opposing parties and witnesses.” PopCap Games, Inc. v. MumboJumbo,

LLC, 350 S.W.3d 699, 721 (Tex. App.—Dallas 2011, pet. denied). “Reasonable inferences and

deductions from the evidence, by contrast, are permissible in closing argument.” Id. at 721.

“Hyperbole is also generally a permissible rhetorical technique in closing argument.” Id.




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         Having reviewed the closing argument made by Klein’s attorney, we overrule Walls’s

issue. Several of the arguments Walls cites in her brief were supported by direct evidence. 1 Other

arguments Walls cites were supported by the attorney’s inferences and deductions from the direct

evidence 2 and his use of hyperbole. 3 More importantly, however, we hold that none of the cited

arguments rises to the level of incurable improper jury argument as asserted by Walls in her brief.

Accordingly, Walls’s first issue is overruled.

                                               AUTHENTICATION

         In her second issue, Walls contends the trial court erred in admitting into evidence an

exhibit that was not properly authenticated. 4 The requirement of authentication “is satisfied by

evidence sufficient to support a finding that the matter in question is what its proponent claims.”

TEX. R. EVID. 901(a). One method of authenticating a document is by testimony of a witness with

knowledge “that a matter is what it is claimed to be.” Id. at 901(b)(1). “We review a trial court’s

decision to admit or exclude evidence for an abuse of discretion.” In re J.P.B., 180 S.W.3d 570,

575 (Tex. 2005).

         With regard to the exhibit in question, Klein testified that it was a page from Walls’s

Facebook page which he had seen may times. Klein further testified that he printed off the page

at a time when he had access to Walls’s Facebook page. The trial court did not abuse its discretion

in determining that this testimony was sufficient to satisfy the authentication requirement. See id.



1
  For example, in response to whether Walls was cited with a criminal trespass warning by Temple Beth-El, Walls
testified that she was issued a letter and asked not to return there. Klein testified that he was aware that Walls had
been given a criminal trespass warning.
2
  For example, Klein’s attorney was permitted to draw inferences about the validity of the criminal complaints reported
by Walls from the authorities’ failure to pursue criminal charges against Klein.
3
  The reference by Klein’s attorney to Klein’s desire to avoid a “nuclear bomb” is a permissible use of hyperbole.
4
  Although Walls makes reference in her brief to Klein’s attorney suborning perjury by introducing two additional
exhibits, her brief refers only to Defendant’s Exhibit 2 as not being properly authenticated. Since Walls’s second
issue asserts the trial court erred in admitting evidence that was not properly authenticated, we only address the
admissibility of Defendant’s Exhibit 2. See Hamilton v. Williams, 298 S.W.3d 334, 338 n.3 (Tex. App.—Fort Worth
2009, pet. denied) (noting appellate court can disregard any assignment of error that is multifarious).

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Although Walls asserted in her objection that Klein had been blocked from accessing her Facebook

page prior to the date the page was printed, the trial court, in overruling her objection, responded

that Walls could impeach Klein about her contention. See In re J.A.S., No. 11-09-00176-CV, 2011

WL 704390, at *3 (Tex. App.—Eastland Jan. 13, 2011, no pet.) (noting testimony that document

is what it purports to be is sufficient to authenticate, “while the accuracy of the testimony is for

the factfinder”). Walls’s second issue is overruled.

                                           INJUNCTION

       In her third issue, Walls contends the trial court erred in granting the permanent injunction

in favor of Klein because it was unsupported by the jury’s findings and constituted an

unconstitutional prior restraint on speech. This court previously rejected Walls’s constitutionality

argument in our prior opinion affirming the trial court’s temporary injunction. Walls, 2013 WL

988179, at *2-5. Moreover, the jury found that Walls was liable for defamation and invasion of

privacy and committed acts with the intent to harass, annoy, intimidate, humiliate, or threaten

Klein. These findings are sufficient to support the permanent injunction. See Memon v. Shaikh,

401 S.W.3d 407, 423 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding jury’s defamation

finding supported permanent injunction); Bostow v. Bank of America, No. 14-04-00256-CV, 2006

WL 89446, at *6 (Tex. App.—Houston [14th Dist.] Jan. 17, 2006, no pet.) (holding jury’s finding

that party engaged in harassing behavior supported permanent injunction) (mem. op.); see also

Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993) (suggesting permanent injunction could

be based on jury finding liability for invasion of privacy). Walls’s third issue is overruled.

                                     AFFIRMATIVE DEFENSES

       In her fourth issue, Walls contends the trial court erred in failing to rule on her affirmative

defenses. In her brief, Walls fails to even identify the affirmative defenses to which her complaint

relates. In addition, as Klein notes in his brief, Walls had the burden to request jury questions on
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her affirmative defenses, and by failing to make such a request, Walls failed to preserve this

complaint for our review. See AMS Const. Co. v. K.H.K. Scaffolding Houston, Inc., 357 S.W.3d

30, 43 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d); Palacios v. Robbins, No. 04-02-00338-

CV, 2003 WL 21502371, at *2 (Tex. App.—San Antonio July 2, 2003, pet. denied) (mem. op.);

Abraxus Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 763 (Tex. App.—El Paso 2000, no pet.).

Walls’s fourth issue is overruled.

                                         CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Catherine Stone, Chief Justice




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