Opinion issued January 30, 2014.




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-12-00619-CV
                           ———————————
                   JAMES LEONARD FINLEY, Appellant
                                        V.
                                  P.G., Appellee


                   On Appeal from the 236th District Court
                          Tarrant County, Texas *
                    Trial Court Case No. 236-227641-07


                                  OPINION

      This appeal arises from a suit to recover damages for sexual assault, battery,

and intentional infliction of emotional distress. After a bench trial, the court

*
      Pursuant to its docket equalization authority, the Supreme Court of Texas
      transferred the appeal to this Court. See Misc. Docket No. 12–9107 (Tex.
      Jun. 18, 2012); see also TEX. GOV'T CODE ANN. § 73.001 (West 2013)
      (authorizing transfer of cases).
awarded the appellee, P.G., damages for past and future mental anguish, future

medical expenses, punitive damages, and prejudgment interest. Appellant James

Leonard Finley challenges the propriety of these awards, arguing that the evidence

was insufficient to support each class of damages. He further contends that the trial

court’s award of punitive damages was improperly based on a contradictory

finding of both malice and gross negligence. Finally, he argues that the trial court

abused its discretion in awarding prejudgment interest for prospective and punitive

damages (a point that P.G. concedes).

      We conclude that the record presents adequate evidence to support the

damages awarded by the trial court. Accordingly, we affirm the judgment,

modified to limit the award of prejudgment interest to P.G.’s past mental anguish

damages.

                                   Background

      P.G. was twenty-one years old and working as a cashier when he first met

Finley, who was then a pastor with the First United Methodist Church in Euless.

Finley noticed a cross that P.G. was wearing and struck up a conversation with

him. He asked to meet further with P.G. to talk and pray. In the months that

followed, Finley grew close to P.G. and his mother.

      Although he was twenty-one, the evidence at trial showed that P.G. was

immature and childlike. He lived at home with his mother, a widow. Slow to


                                         2
develop, sensitive, and often bullied at school, P.G. had always had trouble making

friends despite his trusting nature. He and his mother were thus gratified when

Finley entered his life as a friend and father figure. Growing up, P.G. had been

religious and a frequent participant in church activities; accordingly, he and his

mother appreciated that Finley was a pastor. P.G.’s mother described church as

“his refuge.”

      Apart from his naiveté, P.G. was also hampered by cognitive difficulties that

contributed to his immature condition. His mental health counselor, Robin

Evangelisto, described him as lacking “the emotional and cognitive functioning” of

a normal adult his age. She affirmed a discrepancy between his “physical age and

mental age” and characterized him as naive, unsophisticated, and possibly learning

disabled. Kimberly Althouse, a detective in the family crimes unit who conducted

an investigation of the events giving rise to P.G.’s claim, described him as having

“cognitive disadvantages” and as being “extremely immature for someone his

age.” Interacting with P.G., the officer said, “was just like working with an

adolescent . . . like a 12, 13-year-old boy.”

      In the months that followed their initial meeting, Finley became a familiar

presence in P.G.’s life. Finley provided gifts of money and food, bringing breakfast

from McDonald’s once a week at a time when P.G.’s family was experiencing

financial troubles. Finley also began referring to P.G. as “Sweetie” and “Sweet


                                           3
Boy.” In her testimony, Althouse described this behavior as “grooming,” a process

typical of sexual predators in which a conspicuously vulnerable person is targeted

for exploitation. She further explained that Finley had been successful in gaining

P.G.’s trust and making him feel comfortable.

      On the morning of December 1, 2005, Finley brought breakfast to P.G. at his

family’s apartment. Finley hugged him and grabbed his buttocks. The two then sat

down to eat and watch television together. While P.G. was cleaning up after

breakfast, Finley groped P.G.’s penis from outside of his clothing. Finley then tried

to reach inside his pants, but P.G. said “no, not yet.” At this point, Finley ceased

his advances and left the apartment. In his own testimony, Finley admitted that

P.G. had never given any indication that he wanted to engage in sexual relations

with him. He further acknowledged that on the morning of the incident he had

asked P.G. whether he was sexually experienced, and he received a negative

answer.

      P.G. called the police, and Althouse arrived that day to investigate. She was

struck by P.G.’s marked immaturity for a person of his age. He appeared “very,

very upset, very childlike.” He was crying and shaking so much that she had

difficulty understanding him; she noted that he was “really uncomfortable” using

the word “penis” and discussing the morning’s events. She further described him




                                         4
as fearful and in a state of severe emotional distress. While testifying, P.G.

described himself as having felt “disgusted,” “gross,” and “like . . . a whore.”

      As part of her investigation, Althouse arranged to record a phone call

between P.G. and Finley. During the conversation, Finley apologized for his

actions, explained that he had grabbed P.G.’s penis because “he wanted to,” and

expressed a wish to perform fellatio on P.G. for his first time. After hearing this

conversation, Althouse obtained a warrant for Finley’s arrest.

      Later in the day, Finley returned to P.G.’s apartment and tried to enter. The

police were called and intercepted him as he was leaving the complex. Finley was

then arrested.

      P.G. brought suit alleging battery, intentional infliction of emotional distress,

and violation of the criminal sexual assault statute, TEX. PENAL CODE ANN.

§ 22.011 (West 2011). After a bench trial, the judge entered judgment in favor of

P.G. He also made findings of fact and conclusions of law substantiating P.G.’s

claims of intentional infliction of emotional distress and battery. These included

findings of both malice and gross negligence on the part of Finley. Exemplary

damages, damages for past and future mental anguish, damages for future medical

expenses, and prejudgment interest were awarded. This appeal followed.




                                          5
                                      Analysis

I.    Future medical expenses

      Finley argues that the evidence was legally insufficient to support the trial

court’s award of $45,000 in damages for future medical expenses. For the reasons

below, we disagree with Finley that the evidence was legally insufficient.

      There are four circumstances in which a court of appeals should find

evidence legally insufficient: (1) a complete absence of evidence of a vital fact;

(2) the court is barred by rules of law or of evidence from giving weight to the only

evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact

is no more than a mere scintilla; and (4) the evidence conclusively establishes the

opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.

2005) (citing Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points

of Error, 38 TEXAS L. REV. 361, 362–63 (1960)). When applying these criteria, we

assess the evidence in the light most favorable to the finding, indulging every

reasonable inference in its favor. Id. at 822. The ultimate question is whether the

trial evidence would enable fair and reasonable people to reach the verdict under

review. Id. at 827.

      When future medical expenses are sought for personal injuries, Texas law

does not require absolute certainty before they may be awarded but only a

“reasonable probability” that they will be incurred. Doctor v. Pardue, 186 S.W.3d


                                          6
4, 20 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citing Rosenboom Mach.

& Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex. App.—Houston [1st Dist.]

1999, pet. denied)); see Fisher v. Coastal Transp. Co., 149 Tex. 224, 229, 230

S.W.2d 522, 525 (1950). Fact-finders may base their judgment “on the injuries

suffered, the medical care rendered before trial, the progress toward recovery under

the treatment received, and the condition of the injured party at the time of trial.”

Rosenboom, 995 S.W.2d at 828 (citing City of San Antonio v. Vela, 762 S.W.2d

314, 321 (Tex. App.—San Antonio 1988, writ denied), and Pride Transp. Co. v.

Hughes, 591 S.W.2d 631, 633 (Tex. Civ. App.—Eastland 1979, writ ref’d n.r.e.)).

In other words, “No precise evidence is required.” Marquette Transp. Co. Gulf-

Inland, LLC v. Jackson, No. 01-10-01025-CV, 2012 WL 1454476, at *12 (Tex.

App.—Houston [1st Dist.] Apr. 26, 2012, no pet.) (mem. op.) (citing Tagle v.

Galvan, 155 S.W.3d 510, 519 (Tex. App.—San Antonio, 2004, no pet.)).

      What the plaintiff must ultimately show is that “in all reasonable probability,

future medical care will be required and the reasonable cost of that care.”

Rosenboom, 995 S.W.2d at 828 (citing Thrailkill v. Montgomery Ward & Co., 670

S.W.2d 382, 384 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.)). By

assessing “the nature of the injuries, the medical care rendered before trial, and the

condition of the injured party at the time of trial,” Marquette, 2012 WL 1454476,

at *12, the trial judge was permitted to reach a conclusion in light of his own


                                          7
experience and common knowledge. See McGalliard v. Kuhlmann, 722 S.W.2d

694, 697 (Tex. 1986) (explaining that a trial judge was not bound by expert

testimony as to the cost of repairing a water leak). And because “an award of

future medical expenses . . . lies largely within the factfinder’s discretion,”

appellate courts are especially hesitant to disturb a fact-finder’s conclusion in this

regard. See, e.g., Marquette, 2012 WL 1454476, at *12; Antonov v. Walters, 168

S.W.3d 901, 908 (Tex. App.—Fort Worth 2005, pet. denied).

      In this case, the trial court heard testimony from P.G.’s counselor,

Evangelisto, about his past course of mental-health treatment, the cost of his

counseling sessions ($90 each), and the probable need for more counseling in the

future. Finley argues that Evangelisto’s testimony must be discounted because she

had not seen P.G. in five years at the time of her testimony and was unaware of

other traumatic events in his past, including abuse by his deceased father.

However, Finley failed to preserve any error in the admission of this testimony by

obtaining a ruling on his objection to Evangelisto’s expression of an opinion as to

P.G.’s future need for counseling. See TEX. R. APP. P. 33.1. In the absence of a

properly preserved objection, Evangelisto’s statements form part of the record on

appeal. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 411 (Tex. 1998)

(“Appellate courts must base their decisions on the record as made and brought

forward, not on a record that should have been made or could have been made.”).


                                          8
With Evangelisto’s testimony in the record, Finley’s arguments are misdirected to

the extent that they go to the weight to be accorded to the evidence. And insofar as

he argues that the existence of other psychological traumas hopelessly muddles the

project of tracing P.G.’s injuries to Finley’s battery, he disregards the fact that the

judge was entitled to resolve conflicts in the evidence.

      According     to   Evangelisto’s    testimony,   P.G.    was   suffering   from

posttraumatic stress disorder—an ailment that cannot be cured, only managed—

and as such, he was likely to need counseling into the foreseeable future. Billing

records revealed that P.G.’s past course of treatment involved weekly sessions. In

closing argument, counsel for P.G. proposed weekly, $90 sessions as the basis for

calculating the cost of future medical expenses. With respect to the future duration

of these recurring sessions, Evangelisto opined that the need for them was likely to

continue indefinitely.

      Aside from this expert testimony as to past and likely future medical care,

the court also had before it evidence of P.G.’s injuries and his condition at trial.

Althouse testified to P.G.’s distraught condition in the aftermath of the incident,

mentioning physical symptoms and other indications of great shock resulting from

Finley’s battery. Further, P.G. and his mother spoke at length about the persistent

decline in his well-being and demeanor following the incident.




                                          9
      The trial court took judicial notice of the fact that P.G.’s life expectancy,

according to the federal census tables, was 69.5 years. P.G. was twenty-seven at

the time of trial. P.G. asserts in his brief that the court’s $45,000 award

approximates the cost of weekly $90 sessions for ten years. Although P.G.’s simple

calculation ignores the time value of money, we nevertheless observe that the

award of $45,000 is less than an appropriately discounted sum that would account

for P.G.’s expected 42.5 remaining years of life. Given that the expert testimony,

billing records, and life expectancy tables could have supported a much larger

award, we conclude that the court’s award was based upon legally sufficient

evidence.

II.   Mental anguish

      Finley argues that the evidence was legally insufficient to support the trial

court’s awards of $25,000 in damages for past mental anguish and $15,000 in

damages for future mental anguish. We disagree.

      Texas courts define mental anguish as a “relatively high degree of mental

pain and distress.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995).

As the Parkway court explained, “It is more than mere disappointment, anger,

resentment or embarrassment, although it may include all of these. It includes a

mental sensation of pain resulting from such painful emotions as grief, severe




                                        10
disappointment, indignation, wounded pride, shame, despair and/or public

humiliation.” Id.

      We will uphold an award of mental anguish damages against a legal

sufficiency challenge when the claimant has “introduced direct evidence of the

nature, duration, and severity” of his mental anguish, thus establishing a

“substantial disruption” in his daily routine. Id. Alternatively, an award of mental

anguish damages may be supported by some evidence of “‘a high degree of mental

pain and distress’ that is ‘more than mere worry, anxiety, vexation, embarrassment,

or anger.’” Id. (quoting J.B. Custom Design & Bldg. v. Clawson, 794 S.W.2d 38,

43 (Tex. App.—Houston [1st Dist.] 1990, no writ)).

      In considering a mental anguish award, we must be tolerant of the limits of

proof in this realm. As this court recently explained, “The process of awarding

damages for amorphous, discretionary injuries such as mental anguish or pain and

suffering is inherently difficult because the alleged injury is a subjective,

unliquidated, nonpecuniary loss.” Figueroa v. Davis, 318 S.W.3d 53, 62 (Tex.

App.—Houston [1st Dist.] 2010, no pet.) (quoting HCRA of Tex., Inc. v. Johnston,

178 S.W.3d 861, 871 (Tex. App.—Fort Worth 2005, no pet.)). Given the lack of

objective measures, the task of fixing the exact amount of damages—provided the

existence of some compensable mental anguish has been established—is

“generally left to the discretion of the fact finder.” Id. (quoting Pentes Design, Inc.


                                          11
v. Perez, 840 S.W.2d 75, 80 (Tex. App.—Corpus Christi 1992, writ denied)); see

also Marquette, 2012 WL 1454476 at *9, *12; Marvelli v. Alston, 100 S.W.3d 460,

482 (Tex. App.—Fort Worth 2003, pet. denied).

      However, the discretion of a fact-finder in fixing an award of damages for

mental anguish is not without limits. While recognizing that juries must be

afforded “a measure of discretion in finding damages” for mental anguish, the

Supreme Court of Texas has also held that “[t]here must be evidence that the

amount is fair and reasonable compensation.” Saenz v. Fid. & Guar. Ins.

Underwriters, 925 S.W.2d 607, 614 (Tex. 1996); see also Marquette, 2012 WL

1454476, at *9.

      There was ample direct evidence at trial of the nature, duration, and severity

of the mental anguish experienced by P.G and of consequent interference with his

daily routine. Indeed, P.G. himself testified as to the shame and discomfort he has

experienced. See Marquette, 2012 WL 1454476, at *9 (allowing for mental

anguish to be established by the injured party’s testimony). He reported that he

thinks about the incident “every day,” and said that at the time of the incident, he

felt “disgusted,” “gross,” and like “a whore.” See N.N. ex rel. A.B. v. Inst. For

Rehab. & Research, 234 S.W.3d 1, 10 (Tex. App.—Houston [1st Dist.] 2006, no

pet.) (“Feeling dirty, for a sexual assault victim, is a mental sensation of pain that

is in essence the equivalent emotion of shame.”).


                                         12
      Apart from P.G.’s own testimony, the trial court also could have considered

the testimony of his mother and sister-in-law. After the incident, P.G. experienced

nightmares, had trouble sleeping, and would pace the floor at night, checking the

door “four or five times.” He strictly avoided church (even though he previously

had been religious) and he rocked himself in the back pew on the single occasion

he did attend church. He could not abide the touch of strangers, such as bumping

and jostling in crowds. On one occasion when he and his mother went Christmas

shopping, he became upset and asked to be taken home. Further, although he had

previously engaged in normal romantic relationships, he could not tolerate the

touch of his girlfriend after the incident. In general, he became more reticent,

staying at home and sleeping. He appeared depressed and had difficulty

maintaining employment. Temperamentally, he became more touchy, distrustful,

and quick to anger.

      In sum, the evidence at trial demonstrated the nature, duration, and severity

of P.G.’s mental anguish and was legally sufficient to support an award of $25,000

for past mental anguish. See Parkway, 901 S.W.2d at 444; O’Dell v. Wright, 320

S.W.3d 505, 514–15 (Tex. App.—Fort Worth 2010, pet. denied) (upholding

$425,000 mental anguish award to sexual assault victim who felt “dirty,”

experienced anxiety that made her feel stiff and unable to move, and suffered

shaking, nightmares, and racing pulse). P.G. experienced shame, fear, and distress


                                        13
from ordinary contacts with others. These feelings and behaviors began with the

battery and continued at least until the time of trial. The evidence showed that

P.G.’s mental anguish was severe enough to interfere with his everyday life:

disrupting his sleep, inhibiting his romantic life, interfering with his employment,

stopping him from attending church, keeping him at home during the day, and

making him averse to crowds.

      With specific reference to future mental anguish, the foregoing proof also

provides a legally sufficient basis for an award of $15,000. As with damages for

future medical expenses, P.G. need only show a reasonable probability that he will

suffer compensable mental anguish in the future. See Adams v. YMCA of San

Antonio, 265 S.W.3d 915, 917 (Tex. 2008) (per curiam) (citing Fisher v. Coastal

Transp. Co., 149 Tex. 224 S.W.2d 522, 523–24 (1950)). As P.G. points out, the

Supreme Court of Texas has sustained an award of $20,000 in future mental

anguish damages on evidence of mental distress similar to that in this case. See

Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 797–98 (Tex. 2006). In Fifth Club,

the injured party and his wife testified that he “continued to be depressed,

humiliated, non-communicative, unable to sleep, and angry, continued to have

headaches and nightmares, and that his daily activities and his relationships with

his wife and daughter continued to be detrimentally affected.” Id. at 797. Nearly

every one of these emotional and behavioral afflictions has parallels in the


                                        14
evidence surveyed regarding P.G.’s condition. Moreover, the Court in Fifth Club

emphasized that the jury was faced with an injured party who had endured a

“severe beating.” Id. at 798. A sexual assault is also a traumatic personal injury,

and the judge could have properly considered the nature and severity of P.G.’s

battery in making his award. We thus find no error in the trial court’s award of

damages for future mental anguish.

III.   Punitive damages

       Finley objects to the trial court’s $100,000 punitive damages award on three

grounds. He first argues that the trial court’s finding that he acted with both malice

and gross negligence (either of which can support an award of punitive damages)

was illogical and contradictory. Second, he asserts in the alternative that the

evidence was legally and factually insufficient to support a finding of gross

negligence. Third, he claims that the evidence was legally insufficient to support a

finding of malice. For the reasons below, we uphold the trial judge’s malice

finding and the award of punitive damages. Consequently, it is unnecessary for us

to separately address Finley’s challenges to the court’s finding of gross negligence.

       A.    Alleged inconsistency of findings

       In general, Texas requires a finding of fraud, malice, or gross negligence to

support an award of exemplary damages. TEX. CIV. PRAC. & REM. CODE ANN.

§ 41.003(a) (West 2008). The plaintiff must show by clear and convincing


                                         15
evidence that the harm of which he complains results from one of these

circumstances before exemplary damages may be awarded. Id.

      Insofar as Finley contends that a finding of malice and a finding of gross

negligence are mutually exclusive in relation to any particular incident constituting

an intentional tort, we do not agree. He relies on Gavrel v. Lieberman, No. 2-08-

414-CV, 2010 WL 1270334 (Tex. App.—Fort Worth Apr. 1, 2010, no pet) (mem.

op.), and Fulmer v. Rider, 635 S.W.2d 875 (Tex. App.—Tyler 1982, writ ref’d

n.r.e.). These cases, however, do not stand for the proposition that a finding of

gross negligence and a finding of malice are contradictory but only for the

principle that negligence and assault are separate causes of action. See Gavrel,

2010 WL 1270334, at *2–3 (“A plaintiff may not recover for an intentional tort by

proving only negligence. . . . Likewise, a plaintiff may not recover in negligence

when he proves only an intentional tort.” (citations omitted)); Fulmer, 635 S.W.2d

at 881–883 (“[A] negligent injury and a willful and intentional injury are separate

and distinguishable torts.”). In other words, negligence and an intentional tort

(such as assault or battery) are separate torts such that each requires distinctive

proof. Neither Gavrel nor Fulmer addresses the question raised by Finley: whether

both malice and gross negligence can result in the same intentional tort.




                                         16
      Malice is defined by statute as “a specific intent by the defendant to cause

substantial injury or harm to the claimant.” TEX. CIV. PRAC. & REM. CODE ANN. §

41.001(7). Gross negligence is defined as:

      [A]n act or omission:

         (A) which when viewed objectively from the standpoint of the
         actor at the time of its occurrence involves an extreme degree of
         risk, considering the probability and magnitude of the potential
         harm to others; and

         (B) of which the actor has actual, subjective awareness of the risk
         involved, but nevertheless proceeds with conscious indifference to
         the rights, safety, or welfare of others.

Id. § 41.001(11). Both malice and gross negligence require that the actor harbor

certain mental states. Nonetheless, there is neither logical nor psychological

impossibility in a person like Finley taking action that “involves an extreme degree

of risk” with both an “actual, subjective awareness of the risk involved [and] with

conscious indifference to the rights of others” and “a specific intent . . . to cause

substantial injury or harm.” Id. § 41.001. On the contrary, the Texas Penal Code

recognizes that proof that a malefactor acted intentionally constitutes proof that he

also acted knowingly, recklessly, and criminally negligently. TEX. PENAL CODE

ANN. § 6.02(e) (West 2011). We therefore find no merit in Finley’s argument that

the trial judge’s findings on malice and gross negligence are contradictory.




                                         17
      B.     Sufficiency of evidence of malice

      When reviewing the legal sufficiency of the evidence to support an award of

punitive damages, an appellate court must be mindful of the burden of proof

governing the determinations of the fact-finder. An elevated burden of proof at trial

requires a higher standard of review on appeal. City of Keller, 168 S.W.3d at 817

(citing Jackson v. Virginia, 443 U.S. 307, 320 n.14, 99 S. Ct. 2781 (1979)). Clear

and convincing evidence is such an elevated burden of proof with respect to an

award of punitive damages: it is that “measure or degree of proof that will produce

in the mind of the trier of fact a firm belief or conviction as to the truth of the

allegations.” In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Accordingly, although

we will still view the evidence in the light most favorable to the outcome and give

deference to the fact-finder’s reasonable resolution of disputed issues, we must be

satisfied that a reasonable finder of fact could have formed a firm belief or

conviction that its conclusion was true. Sw. Bell Tel. Co. v. Garza, 164 S.W.3d

607, 609 (Tex. 2004) (citing J.F.C., 96 S.W.3d at 266).

      Finley argues that there was no evidence in the record that he intended to

harm P.G and that any evidence of his intent was to the contrary. In his brief, he

points to his own testimony that he had not intended to harm P.G., that he had

believed P.G. to be a normal adult, and that he had heard a recording left by P.G.

on the family answering machine stating “this is the gay place.” He also calls our


                                         18
attention to the testimony of P.G. and his mother that Finley was a loving man and

did not intend harm.

      The record evidence, viewed as a whole, was legally sufficient to produce a

firm conviction in the mind of a reasonable fact-finder that Finley acted with

malice, i.e., a specific intent to cause substantial injury or harm to P.G. See TEX.

CIV. PRAC. & REM. CODE § 41.001(7). There was ample evidence that the trial

judge could have credited from which to paint a convincing portrait of Finley as a

predator who targeted P.G. due to his vulnerability as an immature, cognitively

limited adult.

      Such a conclusion finds support in the testimony of P.G.’s mental health

counselor, Evangelisto, who spoke to a disparity in his physical and mental age,

and of Althouse, who described his immaturity and cognitive difficulties. P.G.’s

mother provided further evidence of his susceptibility to exploitation in her

testimony about the family’s financial difficulties, and her son’s naive, trusting

nature.

      As for predatory behavior, the evidence showed that Finley had given

money to P.G., regularly brought him breakfast, and used names like “Sweetie”

and “Sweet Boy” to refer to him. The trial judge also heard testimony from

Althouse, an officer experienced in sexual crimes, that Finley’s behavior

resembled that of a sexual predator grooming a target. Adding to the predatory


                                        19
picture, there was evidence from Finley himself that he knew P.G. to be sexually

inexperienced, that P.G. had given no indication of wanting to participate in sexual

activity with Finley, and that Finley proposed another sexual encounter on the

telephone after being rejected the morning of the incident.

      Having reviewed evidence from which malice could be inferred, we should

also consider evidence that militates against such a finding. We are tasked with

considering all of the evidence (albeit in the light most favorable to the finding)

and not just the evidence in favor of the judgment. Garza, 164 S.W.3d at 627. We

must be equally mindful, however, to disregard evidence which a reasonable fact-

finder could have disbelieved or found incredible. Id. Finley testified that he

thought of P.G. as a “normal” adult and did not regard him as having mental

difficulties. He claimed to have heard a message left by P.G. on the answering

machine describing his home as “a gay place,” and he further denied any intent to

harm the young man. P.G. and his mother testified to the effect that Finley was a

loving man and did not intend harm.

      The evidence that Finley had benign intentions was not so potent that it must

have shaken a reasonable fact-finder from a firm conclusion that Finley acted with

malice. The judge was not required to credit or treat as conclusive the statements

by Finley, P.G., and his mother in regards to Finley’s motives, intent, or his

awareness of any disability in P.G. Moreover, even if its existence is assumed, the


                                         20
alleged message on P.G.’s answering machine need not be construed as evidence

that Finley’s sexual advances were invited or otherwise innocent. We thus

conclude that the evidence was legally sufficient to support the trial court’s finding

of malice, and we overrule Finley’s challenge to the punitive damages award.

IV.   Waiver of factual insufficiency claims

      Finley has also suggested that the evidence is factually insufficient to

support the trial court’s findings as to malice and its awards of damages for future

medical expenses, past mental anguish, and future mental anguish. However, in

each relevant section of his brief, Finley raises his factual sufficiency challenges in

a single sentence. Since Finley fails to direct the court to evidence that would

support these contentions and fails to present analyses explaining the application of

the independent factual sufficiency standard to the proof, we deem these points of

appeal waived for inadequate briefing. See TEX. R. APP. P. 38.1(i) (demanding

“clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record”); Morris v. Am. Home Mortg. Servicing, Inc., 360

S.W.3d 32, 36 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

V.    Prejudgment interest

      Finley argues that the trial court erred by awarding prejudgment interest on

the punitive damages, future mental anguish damages, and damages for future

medical expenses. P.G. concedes this issue. Texas statute bars prejudgment interest


                                          21
on future damages, TEX. FIN. CODE ANN. § 304.1045 (West 2006), and punitive

damages, TEX. CIV. PRAC. & REM CODE ANN. § 41.007 (West 2008). We will

modify the judgment accordingly.

                                   Conclusion

      We modify the judgment to reflect that only the award of past mental

anguish damages will bear prejudgment interest. As modified, we affirm the

judgment of the trial court.



                                            Michael Massengale
                                            Justice

Panel consists of Justices Keyes, Higley, and Massengale.




                                       22
