
NO. 07-08-0082-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 10, 2009
______________________________

JUAN J. ZUNIGA, 

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant

v.

THE STATE OF TEXAS, 

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellee
_________________________________

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2007-417,075; HON. BRAD UNDERWOOD, PRESIDING
_______________________________

Memorandum Opinion
________________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Â Â Â Â Â Â Â Â Â Â Appellant was convicted of aggravated assault of a public servant.  He seeks to
reverse the conviction by contending that 1) the trial court erred in ordering the jury to
continue to deliberate when it returned with a conflicting verdict, and 2) the evidence was
legally and factually insufficient to sustain the conviction.  We affirm the judgment. 
Â Â Â Â Â Â Â Â Â Â Background
Â Â Â Â Â Â Â Â Â Â On September 15, 2006, Officer Mark Wall was on patrol in Lubbock around 2:00
a.m. when he observed two individuals wearing dark clothing walking down the street and
shielding their faces every time a car passed.  He parked his vehicle to observe their
activities and turned on one of his spotlights to do so.  At that time, he saw one of the
individuals, who was later identified as appellant, turn to the other person and appear to
mouth the word âpolice.â  The men then turned to enter the alley after which they spoke to
each other again and returned to the sidewalk.  As Wall exited his vehicle, the individual
with appellant reached into his waistband, withdrew an object, and began firing at the
squad car.  Nine shell casings were found in the area, some from a .40 caliber weapon and
others from a .45 caliber.  Appellant later told his girlfriend that he too fired at the officer.
Â Â Â Â Â Â Â Â Â Â Issue 1 - Conflicting Verdict
Â Â Â Â Â Â Â Â Â Â One commits aggravated assault by engaging in an assault that causes serious
bodily injury or by using or exhibiting a deadly weapon during an assault.  Tex. Penal Code
Ann. Â§22.02(a)(1) & (2) (Vernon Supp. 2009).  The State selected the second mode in
accusing appellant at bar of the crime.  That is, it charged him with intentionally and
knowingly threatening the officer âwith imminent bodily injury and did then and there use
a deadly weapon . . . .â  Moreover, in charging the jury at the end of the guilt/innocence
phase of the trial, the trial court told the jury that â[a]n assault is aggravated assault when
it is committed with a deadly weapon.â  (Emphasis added).  Thereafter, the jury returned
a verdict holding appellant âguilty of the offense of aggravated assault of a public servant
with a deadly weapon, as charged in the indictment.â  (Emphasis added).  Yet, viz a
âspecial issue,â it again was asked to answer whether appellant used a deadly weapon in
the assault.  This question was initially answered, â[w]e do not.â  The trial court viewed the
answers to the guilt question and special issue as conflicting, informed the jury of that, and
directed it to continue deliberating.  Eventually, the jury changed its answer to the special
issue to â[w]e do.â  According to appellant, the trial court erred in directing the jury to further
deliberate.  We overrule the issue. 
Â Â Â Â Â Â Â Â Â Â It is clear that a verdict must be certain, consistent and definite; it cannot be
conditional, qualified or ambiguous.  Reese v. State, 773 S.W.2d 314, 317 (Tex. Crim.
App. 1989).  Moreover, a trial court has the duty to reject an informal or insufficient verdict,
call it to the attention of the jury, have the matter corrected with its consent, or send the jury
out again to consider its verdict.  Id. at 317.  Since a prerequisite to finding appellant guilty
of aggravated assault required it to find he used a deadly weapon, the juryâs answering the
special issue as it did conflicted with its answer to the general question on guilt.  Thus, the
trial court acted within its lawful discretion in doing as it did.
Â Â Â Â Â Â Â Â Â Â Issues 2 and 3 - Sufficiency of the Evidence
Â Â Â Â Â Â Â Â Â Â Next, appellant claims that the verdict was both legally and factually insufficient to
support the verdict.  This is allegedly so because Wall did not see appellant (but only his
acquaintance) draw a weapon, and the trial court did not submit a parties charge.  We
overrule the issues.
Â Â Â Â Â Â Â Â Â Â The record contains evidence that 1) two different caliber of shell casings (.40 and
.45)  were found at the crime scene, 2) the casings were fired from two different guns, 3)
appellantâs girlfriend disclosed to the police a conversation she had with appellant wherein
he said he too began firing a weapon, and 4) appellant initially gave a voluntary statement
to police wherein he mentioned information unknown to the public.  This evidence, when
viewed in the light most favorable to the verdict, was and is sufficient to allow the jury to
rationally conclude, beyond reasonable doubt, that appellant committed aggravated assault
as charged in the indictment.  
Â Â Â Â Â Â Â Â Â Â In questioning the factual sufficiency of the evidence, appellant suggests his
colleague could have wielded both guns given the grouping of the shell casings.  While it
might be possible for one person to have fired both firearms, the jury also could have
inferred lawfully from the evidence that each man carried and fired one.  Furthermore,
appellant admitted that to his girlfriend.  And, though his girlfriend not only gave conflicting
statements to police but also tried to blame the shooting on others, her credibility was for
the jury to resolve.  In sum, we cannot say that the manner in which it resolved the
credibility issues and ultimately ruled is clearly against the weight of the evidence or
undermines our confidence in the verdict.  The evidence is both legally and factually
sufficient.
Â Â Â Â Â Â Â Â Â Â The judgment of the trial court is affirmed.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Brian Quinn 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Chief Justice 
Do not publish.Â Â Â Â Â Â Â Â  
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

NO. 07-09-0277-CV
Â 
IN THE COURT OF APPEALS
Â 
FOR THE
SEVENTH DISTRICT OF TEXAS
Â 
AT
AMARILLO
Â 
PANEL C
Â 
 JUNE 16, 2011

Â 
Â 

Â 
Â 
JOSEPH E. HANCOCK, APPELLANT
Â 
v.
Â 
EASWARAN P. VARIYAM, APPELLEE 

Â 
Â 

Â 
Â FROM THE 99TH DISTRICT
COURT OF LUBBOCK COUNTY;
Â 
NO. 2006-537,571; HONORABLE WILLIAM C. SOWDER, JUDGE

Â 
Â 

Â 
Before QUINN, C.J., HANCOCK and PIRTLE,
JJ.[1]
Â 
Â 
OPINION
Â Â Â Â Â Â Â Â Â Â Â  Appellant, Joseph E. Hancock, appeals
from a judgment entered in a defamation action in favor of Appellee, Easwaran
P. Variyam, following a jury trial.Â  In
support, Hancock presents three issues:Â 
(1) whether the trial court erred in finding as a matter of law that
Hancock's written statements were libel per
se; (2) whether Variyam's evidence of damages is legally and factually
insufficient; and (3) whether the trial court erred in admitting an anonymous
letter at trial.Â  We affirm.Â  
Background
Â Â Â Â Â Â Â Â Â Â Â  At all relevant times, Hancock and
Variyam were physicians practicing internal medicine and gastroenterology at
the Texas Tech University Medical Center in Lubbock, Texas.Â  Both men were on the faculty of Texas
Tech.Â  Variyam was formerly the Chief of
the Gastroenterology Division from September 2000 until January 2006, and as
such, he was Hancock's supervisor when the following events occurred.
Â Â Â Â Â Â Â Â Â Â Â  On
the morning of January 2, 2006, a dispute arose between the two physicians related
to the transfer of patients from Hancock's care to Variyam's care.Â  After Variyam wrote a letter to Hancock
alleging he had disregarded patient care, Hancock responded with a letter of
resignation wherein he stated, in pertinent part, as follows:Â  
Please find a copy of letter from Dr Variyam letter (sic) which I
received today.Â  Due to Dr Variyam's
reputation for lack of veracity, a majority of my communications and
interactions is (sic) recorded or witnessed and subsequently verified as in
this case.
My telephone conversation was over the speakerphone and witnessed by a
third party who will dispute Dr. Variyam's position.Â  The interaction by and through the Department
of Internal Medicine this morning is again refutable. 
Dr Variyam deals in half truths, which legally is the
same as a lie.
It is Dr. Variyam's ethical behavior that should be
challenged.
Â 
Â Â Â Â Â Â Â Â Â Â Â  Hancock
addressed his letter to Bernhard Mittemeyer, Dean of the School of Medicine,
and copied Donald Wesson, Chair of Internal Medicine, David Hodges, Associate
Professor and Director of the UMC Endoscopy Center, Variyam and the
Accreditation Council for Graduate Medical Education (ACGME) in Chicago,
Illinois.[2]Â  In February of 2006, Variyam was removed as
Chief of the Gastroenterology Division.
Â Â Â Â Â Â Â Â Â Â Â  In
December 2006, Variyam filed an original petition alleging that Hancock's
letter had defamed him.Â  Variyam sought special
damages for loss of past and future income as well as general damages for injury
to his reputation and mental anguish.Â  He
also sought exemplary damages.Â  In
November 2008, Variyam and Hancock filed an agreed order wherein Variyam agreed
to forego special damages arising out of his removal as Chief of the Gastroenterology
Division, but retained his defamation claim under a per se theory.Â  Hancock
continued to assert truth as an affirmative defense. Â 
Â Â Â Â Â Â Â Â Â Â Â  In
May 2009, a three day jury trial was held.Â 
At its conclusion, the trial court found that the statements in Hancock's
letter were libel per se.Â  The jury rejected Hancock's affirmative
defense by finding that his statements[3]
regarding Variyam were not substantially true at the time they were made and
that, by clear and convincing evidence, the harm to Variyam resulted from
malice on Hancock's part.Â  The jury
awarded Variyam actual damages of $90,000[4]
and exemplary damages of $85,000.Â  Variyam
was also awarded prejudgment interest of $6,455.68 and court costs.Â  This appeal followed.Â  
Discussion
Â Â Â Â Â Â Â Â Â Â Â  Hancock contends the trial court
erred by finding, as a matter of law, that his statements were libel per se because the statements were
ambiguous and did not injure Variyam in his office or occupation as a
physician.Â  He also asserts that the
evidence is legally and factually insufficient to justify any award for mental
anguish or injury to reputation.Â  He
contends Variyam failed to prove that Hancock's statements caused him any
damage and, alternatively, that the trial court erred by not issuing a jury
instruction on proximate cause.Â  Lastly,
he asserts the trial court erred by admitting an anonymous letter at trial. Â 
Issue One - Libel per se
Â Â Â Â Â Â Â Â Â Â Â  Defamation is generally defined as
the invasion of a person's interest in his or her reputation and good
name.Â  Prosser & Keeton on Torts Â§ 111, at
771 (5th ed. 1984 & Supp. 1988).Â 
Defamation claims are divided into two categories depending on how the
defamatory statement was communicated: libel for written communications and
slander for oral communications.[5]Â  
Â Â Â Â Â Â Â Â Â Â Â  Defamation
claims are also divided into two categories, defamation per se and defamation per
quod, according to the level of proof required in order to
make them actionable.Â  Texas Disposal Sys. Landfill, Inc. v. Waste
Mgmt. Holdings, Inc., 219 S.W.3d 563, 580
(Tex.App.--Austin 2007, pet. denied); Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex.App.--Waco 2005, no pet.).Â  Statements that are defamatory per quod are actionable only upon
allegation and proof of damages.Â  Texas Disposal, 219
S.W.3d at 580; Alaniz v. Hoyt, 105
S.W.3d 330, 345 (Tex.App.--Corpus Christi 2003, no pet.).Â  That is, before a plaintiff can recover for
defamation per quod, he must carry
his burden of proof as to both the defamatory nature of the statement and the amount
of damages caused by the publication of that statement.Â  Texas
Disposal, 219 S.W.3d at 580; See also
Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984);
Peshak v. Greer, 13 S.W.3d 421, 426
(Tex.App.--Corpus Christi 2000, no pet.).Â 
By contrast, in cases involving defamation per se, damages are presumed to flow from the nature of the
defamation itself and, in most situations, a plaintiff injured by a defamatory per se communication is entitled to recover
general damages without specific proof of the existence of harm. Â Bentley
v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002) ("Our law presumes that
statements that are defamatory per se injure
the victim's reputation and entitle him to recover general damages, including
damages for loss of reputation and mental anguish."); Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 501 (Tex.App--Houston [14th
Dist.] 2008, pet. denied); but see Gertz
v. Robert Welch, Inc., Â 418 U.S. 323,
347-48, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (holding that, so long as they do
not impose liability without fault, States are free to define for themselves
the appropriate standard of liability in defamation suits where a private
plaintiff sues a media defendant for speech involving a public issue).Â  The United States Supreme Court later clarified
that the constitutional requirements of Gertz
do not prohibit the application of strict liability to defamation suits
involving private-figure plaintiffs who sue nonmedia defendants for speech
involving nonpublic issues.Â  Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749, 760-61, 105 S.Ct. 2939, 86 L.Ed.2d
593 (1985).Â  In suits involving
such situations, courts applying
Texas law have applied strict liability in defamation per se causes of action.Â  See Thomas-Smith v. Mackin, 238 S.W.3d
503, 509 (Tex.App.--Houston [14th Dist.]Â 
2007, no pet.); Peshak
v. Greer, 13 S.W.3d 421, 425-26 (Tex.App.--Corpus Christi 2000, no pet.); Snead v. Redland Aggregates Ltd., 998
F.2d 1325, 1334 (5th Cir. 1993).Â  Because
the decision whether an alleged defamatory statement is defamatory per se or per quod affects the level of proof required, that question is
initially determined by the trial court as a matter of law.Â  Turner
v. KTRK TV, Inc., 38 S.W.3d 103, 114 (Tex. 2000); Musser v. Smith Protective Servs., Inc.,
723 S.W.2d 653, 654-55 (Tex. 1987). Â 
Â Â Â Â Â Â Â Â Â Â Â  Â A communication is considered libel per se when it is so obviously hurtful
to the person aggrieved that no proof of its injurious character is required to
make it actionable.Â  Clark v. Jenkins, 248 S.W.3d 418, 437 (Tex.App.--Amarillo 2009,
pet. denied), cert. denied, __ U.S.
__, 130 S.Ct. 52, 175 L.Ed.2d 21 (2009); Houseman
v. Publicaciones Paso Del Norte, S.A. de C.V., 242 S.W.3d 518, 524
(Tex.App.--El Paso 2007, no pet.).Â  A
false statement will typically be classified as defamatory per se if it injures a person in his office, profession, or
occupation; Morrill v. Cisek, 226
S.W.3d 545, 549 (Tex.App.--Houston [1st Dist.] 2006, no pet.); charges a person
with the commission of a crime; Leyendecker,
683 S.W.2d at 374; or imputes to him a loathsome disease.Â  Bolling v. Baker, 671 S.W.2d 559, 570 (Tex.App.--San Antonio 1984,
no writ).Â  
Â Â Â Â Â Â Â Â Â Â Â  Whether
a given statement is reasonably capable of a defamatory meaning is a question
to be decided by the trial court as matter of law.Â  See
Musser, 723 S.W.2d at 654-55.Â  The trial court should construe the alleged defamatory
communication as a whole in light of the surrounding circumstances based upon
how a reasonable person of ordinary intelligence would perceive it, considering
the surrounding circumstances and the context of the statement.Â  New
Times, Inc. v. Isaacks, 146 S.W.3d 144, 153 (Tex. 2003), cert. denied, 545 U.S. 1105, 125 S.Ct.
2557, 162 L.Ed.2d 276 (2005); Turner, 38
S.W.3d at 114.Â  This is an objective
test, not a subjective one.Â  New Times, Inc., 146
S.W.3d at 157.Â  Thus, the parties'
opinion of the statements, Musser v.
Smith, 690 S.W.2d 56, 58 (Tex.App.--Houston [14th Dist.] 1985), aff'd, 723 S.W.2d 653 (Tex. 1987), or
the defendant's intent in making the statements have no bearing on whether they
are defamatory.Â  Peshak, 13 S.W.3d at 426 ("We assume the words were intended
because they were used.")Â  "Common
sense requires courts to understand the statement as ordinary men and women
would"; Moore, 166 S.W.3d at 385,
and the question whether a statement is defamatory per se is only submitted to the jury if the contested language is
ambiguous or of doubtful import.Â  See Denton Pub. Co. v.
Boyd, 460 S.W.2d 881, 884 (Tex. 1970).Â  Otherwise, it is an issue of law for the
trial court to decide.Â  Musser, 723 S.W.2d at 655.Â  Therefore, according to this body of law, a
written communication, made by a nonmedia defendant, concerning a
private-figure individual and pertaining to a nonpublic issue, which is
obviously hurtful to the aggrieved party in his profession or occupation, is
libel per se.
Â Â Â Â Â Â Â Â Â Â Â  Standard of Review
Â Â Â Â Â Â Â Â Â Â Â  The standard of review applicable to
alleged error concerning a question of law is de novo.Â  El Paso Natural Gas Co. v. Minco Oil &
Gas, 8 S.W.3d 309, 312 (Tex. 1999); Block
v. Mora, 314 S.W.3d 440, 444-45 (Tex.App.--Amarillo 2009, pet. dism'd).Â  Therefore, in reviewing a trial court's
determination of libel per se, this
Court must conduct a de novo review.Â  In doing so, this Court must exercise its own
judgment and redetermine each legal issue, according no deference to the lower
court's decision.Â  Quick v. City of Austin, 7 S.W.3d 109,
116 (Tex. 1998); Block, 314 S.W.3d at
445.Â  
Â Â Â Â Â Â Â Â Â Â Â  Analysis
Â Â Â Â Â Â Â Â Â Â Â  Hancock
contends the statements at issue were not libelous per se because they were ambiguous and extrinsic evidence was
required to interpret them.Â 
Alternatively, he contends the statements did not injure Variyam in his
office or occupation as a physician.[6]Â  We disagree.
Â Â Â Â Â Â Â Â Â Â Â  The
trial court found that Hancock's written statements that Variyam had a
"reputation for lack of veracity" and "deal[t] in half truths,
which legally is the same as a lie" were libelous
per se.Â  See
Lartigue v. Southern Mut. Ben. Ass'n, 265 S.W. 742, 743
(Tex.Civ.App.--Beaumont 1924, no writ) (printed circular held libelous per se where it "unquestionably
charged appellant with untruthfulness--with being a liar--that he was telling
lies"); Hibdon v. Moyer, 197
S.W. 1117, 1118 (Tex.Civ.App.--El Paso 1917, no writ) (article held libelous per se where it unquestionably charged appellant
with "untruthfulness"); Fleming
v. Mattinson, 114 S.W. 650, 652 (Tex.Civ.App.--Texarkana 1908, no writ) (newspaper
article held libelous per se where
statement "clearly imputes to [plaintiff] a lack of veracity");[7]
Mitchell v. Spradley, 56 S.W. 134,
135 (Tex.Civ.App.--Houston 1900, no writ ) (article held libelous per se where statement denounced plaintiff
as "a liar").Â  
Â Â Â Â Â Â Â Â Â Â Â  The
trial court's determination is supported by the fact that Hancock imputes
dishonesty to Variyam in his profession or occupation by addressing the letter
to Variyam's superiors at Texas Tech and ACGME.Â 
See Bradbury v. Scott, 788
S.W.2d 31, 38 (Tex.App.--Houston [1st Dist.] 1990, writ denied) (letter
libelous per se where writing accused
employee of a lack of fidelity and honesty in her dealings with her employer). Â See also Bolling, 671 S.W.2d at 571 ("Generally, spoken words
imputing that a person is dishonest or unethical in the practice of his
employment have been held to be actionable per
se.")Â  Hancock's
open-ended statements affirmatively questioned Variyam's ethical behavior as
well as his reputation for being truthful and honest to his co-workers and employers
at Texas Tech and ACGME, where he had submitted an application requesting that
Texas Tech's fellowship program be reinstated.Â 
Hancock agreed with Variyam's counsel at trial that, if his statements
about Variyam having a reputation for untruthfulness were not true, then his
statements "could have a very, very serious affect on [Variyam's]
character" and would represent "character assassination."Â  At trial, Variyam attested to the importance
of his professional reputation for telling the truth in dealing with patients
and other doctors, patient care, and research when publishing abstracts and
book chapters.Â  He also testified that
"being untruthful would [also] affect his relationship with other
physicians that might send him business or work."Â  Like lawyers and bankers, a physician such as
Variyam, by definition, depends greatly on his reputation.Â  See generally
First Bank of Corpus Christi v. Ake, 606 S.W.2d 696, 702
(Tex.Civ.App.--Corpus Christi 1980, writ ref'd) (citing Eidinoff v. Andress, 321 S.W.2d 368, 372-73 (Tex.Civ.App.--El Paso
1959, writ ref'd n.r.e.)). 
Â Â Â Â Â Â Â Â Â Â Â  Hancock
asserts that the term "veracity" is ambiguous because it is subject
to two interpretations.Â  In support he
cites the parties' testimony, i.e., Hancock testified "veracity"
means accuracy while Variyam testified "veracity" means truthfulness.
It is well settled that "the meaning of a publication, and thus whether it
is false and defamatory, depends on a reasonable person's perception of the
entirety of the publication and not merely on individual statements."Â  Bentley,
94 S.W.3d at 584.Â 
Moreover, as we stated earlier, the test applied by the court to
interpret the meaning of the publication is objective; New Times, Inc., 146 S.W.3d at 157, and the parties'
interpretations and intentions are irrelevant.Â 
Peshak, 13
S.W.3d at 426; Musser, 690
S.W.2d at 58.Â  Having duly considered the
entirety of the publication, the surrounding circumstances and the context of
the statement, we find that a reasonable person of ordinary intelligence would
perceive the statements in Hancock's letter as defamatory per se.Â  See State Medical Ass'n of Texas v.
Committee for Chiropractic Education, Inc., 236 S.W.2d 632, 634 (Tex.Civ.App.--Galveston
1951, no pet.) ("It has been uniformly held by the courts of this
state that to impugn the veracity of a person is to defame him.")Â  
Â Â Â Â Â Â Â Â Â Â Â  Hancock
next asserts that he was merely expressing an opinion[8]
when he stated that Variyam had a "reputation for lack of veracity."Â  We disagree.Â 
However, even where statements may be characterized as opinions, the
statements may be defamatory nonetheless if they clearly imply the existence of
undisclosed facts that the person engaged in conduct which would adversely
reflect on his reputation.Â  Shearson Lehman Hutton, Inc.,
v. Tucker, 806 S.W.2d 914, 920 (Tex.App.--Corpus Christi 1991, writ dism'd
w.o.j.).Â  True, as Hancock
suggests, the only way to gauge a person's reputation is through an examination
of the opinions expressed by others, however, Hancock's affirmative statements
imply that he had already undertaken that task and made his conclusion.Â  In other words, his statement implies the
existence of undisclosed facts known to Hancock indicating that Variyam had
been untruthful in the past with others.Â 
See Milkovich v. Lorain Journal
Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 111 L.Ed.2d 1
(1990).[9]Â  See also Bentley, 94 S.W.3d at 584. 
Â Â Â Â Â Â Â Â Â Â Â  Hancock
also contends that his statement "deals in half truths" is ambiguous
because of the phrase "deals in."Â 
The entirety of Hancock's statement is "Dr. Variyam deals in half
truths, which legally is the same as a
lie." Â (Emphasis added).Â  Considering the entire publication
objectively, we believe a reasonable person of ordinary intelligence would
understand that Hancock is using the terms "half truths" and
"lies" interchangeably and the phrase "deals in" means that
Variyam "tells" half-truths or lies.[10]Â  This is particularly so given Hancock's prior
statement that Variyam has a "reputation for lack of veracity."Â  In addition the phrase, Variyam "deals
in half truths, which legally is the same as a lie," also implies
knowledge of facts that lead to Hancock's conclusion.Â  See
Milkovich, 491 U.S. at 18-19.Â  See also Bentley, 94
S.W.3d at 584. Â 
Â Â Â Â Â Â Â Â Â Â Â  Lastly,
Hancock cites a string of slander cases for the proposition that merely calling
someone a "liar," "thief," or "crook," by itself,
is not defamatory.Â  See Gateway Logistics Group, Inc. v. Dangerous Goods Management
Australia PTY, LTD, No. H-05-2742, 2008 U.S. Dist. LEXIS 34246 (S.D.
Houston Apr. 25, 2008) (statements in question were oral statements even though
the litigation involved both libel and slander allegations); Moore, 166 S.W.3d 380; Billington v. Houston Fire & Casualty
Ins. Co., 226 S.W.2d 494 (Tex.Civ.App.--Fort Worth 1950, no writ).
Â Â Â Â Â Â Â Â Â Â Â  The
law has long recognized a difference between written charges of falsehood or
lack of veracity and oral charges in the area of per se liability.Â  Billington, 226 S.W.2d at 497 (quoting
53 C.J.S. LIBEL AND SLANDER Â§ 18, at 63) ("Written charges of falsehood or
want of veracity generally are libelous per
se; but oral charges of this character ordinarily are not slanderous per se"); Arant v. Jaffe, 436 S.W.2d 169, 176 (Tex.Civ.App.--Dallas 1968, no
writ) (in the area of per se
defamation,"[t]he law recognizes the distinction between oral and written
imputations").[11]Â  Because the cases cited by Hancock are
slander cases, we find these cases to be distinguishable and inapposite.Â  
Â Â Â Â Â Â Â Â Â Â Â  Therefore,
applying a de novo review, we find
the trial court did not err in finding that the defamatory statements in
question were libel per se.Â  Accordingly, issue one is overruled.
Issue Two - Damages 
Â Â Â Â Â Â Â Â Â Â Â  Hancock next asserts there is no
evidence supporting the jury's award of damages for mental anguish or injury to
reputation.Â  He also asserts there is no
evidence his statements proximately caused Variyam any injury and the trial
court erred by failing to instruct the jury on proximate cause.Â  Further, he contends Variyam's damages should
be denied because Variyam self-published Hancock's letter when he was aware it
was defamatory. 
Â Â Â Â Â Â Â Â Â Â Â  Legal and Factual
Sufficiency
Â Â Â Â Â Â Â Â Â Â Â  In conducting a legal sufficiency
review, we must consider the evidence in the light most favorable to the
challenged finding, indulge every reasonable inference to support it; City of Keller v. Wilson, 168 S.W.3d
802, 822 (Tex. 2005), and credit favorable evidence if reasonable jurors could
while disregarding contrary evidence unless reasonable jurors could not.Â  Id. at 827.Â  A
challenge to legal sufficiency will be sustained when, among other things, the
evidence offered to establish a vital fact does not exceed a scintilla.[12]Â  Id. at 810.Â  In
addition, so long as the evidence falls within the zone of reasonable
disagreement, we may not invade the fact-finding role of the jurors, who alone
determine the credibility of witnesses, the weight to be given their testimony,
and whether to accept or reject all or a part of their testimony.Â  City of
Keller, 168 S.W.3d at 822.Â  
Â Â Â Â Â Â Â Â Â Â Â  In
reviewing a factual sufficiency challenge, we consider all the evidence and set
aside a finding only if it is so against the great weight and preponderance of
the evidence as to be clearly wrong or unjust.Â 
Ortiz v. Jones,
917 S.W.2d 770, 772 (Tex. 1996).Â 
If, as here, the appellant is challenging the factual sufficiency of the
evidence to support a finding on an issue on which the other party had the
burden of proof, we must overrule the complaint unless, considering all the
evidence, the finding is clearly wrong and manifestly unjust.Â  See Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d
630, 637 (Tex.App.--Tyler 2004, no pet.) (citing
Garza v. Alviar, 395 S.W.2d 821, 823
(Tex. 1965)).Â  Inferences may support a
judgment only if they are reasonable in light of all the evidence, id., and, again, the trier of fact is
the sole judge of the credibility of the witnesses and the weight to be given
their testimony.Â  GTE Mobilnet of S. Tex. Ltd. P'ship v.
Pascouet, 61 S.W.3d 599, 615-16 (Tex.App.--Houston [14th Dist.] 2001, pet.
denied).
Â Â Â Â Â Â Â Â Â Â Â  General
Damages--Defamation
Â Â Â Â Â Â Â Â Â Â Â  Compensatory damages allowable for
defamation are divided into two categories: general and special.Â  Pershak,
13 S.W.3d at 427.Â 
General damages include mental anguish, loss of reputation, and like
damages that naturally flow from the defamation and are not easily susceptible
to monetary valuation.Â  Id.Â  General
damages are those conclusively presumed to have been foreseen by the defamer as
a necessary and usual result of his or her wrongful act.Â  Fox v.
Parker, 98 S.W.3d 713, 726 (Tex.App.--Waco 2003, pet. denied) (citing Arthur Anderson & Co. v. Parker Equip.
Co., 945 S.W.2d 812, 816 (Tex. 1997)).Â 
As noted earlier, Variyam chose not to seek "special" damages,
i.e., damages which must be specifically stated and proved, such as loss of
earning capacity, which are foreseeable to the defendant but are not the
necessary and usual result of the wrong.Â 
Id.Â  
Â  Â Â Â Â Â Â Â Â Â  Because
Hancock's statements were determined by the trial court to be defamatory per se, Variyam is entitled to recover general
damages without proof of other injury.Â  Leyendecker, 683
S.W.2d at 374.Â  "The law
presumes a statement which is libelous per
se defames a person, injures his reputation"; id., and causes mental anguish.Â 
Ryder Truck
Rentals, Inc. v. Latham, 593 S.W.2d 334, 337 (Tex.Civ.App.--El Paso 1979,
writ ref'd n.r.e.) (general damages for injury to character, reputation,
feelings, mental suffering or anguish, or other wrongs not susceptible to
monetary valuation are presumed); Peshak,
13 S.W.3d at 427 ("In actions of libel per
se, the law presumes the existence of some actual damages, requiring no
independent proof of general damages.")Â 
Because the damages are presumed, "there need be no inquiry in the
[jury] charge about whether there was a defamation or about 'proximate cause'
and injury (or the jury may be instructed to so find.Â)Â  Fox, 98 S.W.3d at 726.Â  Â Â Â Â 
Â Â Â Â Â Â Â Â Â Â Â  Further,
because the damages are purely personal and cannot be measured by any fixed
rule or standard, the amount of general damages suffered in a defamation case
is difficult to determine.Â  First State Bank of Corpus
Christi v. Ake, 606 S.W.2d 696, 702 (Tex.Civ.App.--Corpus Christi 1980,
writ ref'd n.r.e.) (citing Bayoud v. Sigler, 555 S.W.2d 913 (Tex.Civ.App.--Beaumont 1977, writ
dis'md)).Â  Thus, because of their
uncertain nature, their measurement is generally left to the discretion of the
finder of fact, subject only to a determination that the award was clearly excessive
or the result of "passion, prejudice, or other improper
influences."Â  See Morrill, 226 S.W.3d at 550 (citing Bolling, 671 S.W.2d at 549).Â  See also Tranum v. Broadway, 283 S.W.3d 403, 422 (Tex.App.--Waco
2008, pet. denied).Â  
Â Â Â Â Â Â Â Â Â Â Â  


Â Â Â Â Â Â Â Â Â Â Â  Mental Anguish
Â Â Â Â Â Â Â Â Â Â Â  An award of mental anguish damages
will survive a legal sufficiency challenge when the plaintiff has introduced
(1) "direct evidence of the nature, duration, or severity of [plaintiff's]
anguish, thus establishing a substantial disruption in the plaintiff's daily
routine"; or (2) other evidence of "a high degree of mental pain and
distress that is more than mere worry, anxiety, vexation, embarrassment, or
anger."Â  Parkway Co. v. Woodruff, 901 S.W.2d 434,
444 (Tex. 1995).Â  Direct evidence
may be in the form of the parties' own testimony, that of third parties, or
experts.Â  Id.Â  "There must also be
some evidence to justify the amount awarded"; Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614
(Tex. 1996), and the amount awarded must be fair and reasonable.Â  Id.
Â Â Â Â Â Â Â Â Â Â Â  Hancock
relies on two cases in asserting that Variyam's testimony portrays nothing more
than common anxiety, embarrassment and anger.Â 
See Parkway Co., 901 S.W.2d at 444; Exxon Mobil Corp., 252 S.W.3d at 505.Â  In Parkway,
the Texas Supreme Court found plaintiff's proof of damages for mental anguish
lacking where he addressed his mental state in only two passages of testimony
saying he "was hot" and "was very disturbed about
that."Â  Parkway, 901 S.W.2d at 444.Â  His wife testified that "[their] life
changed," "just upsetting," "her husband was very
quiet," and she was "just upset it changed their
lifestyle."Â  Id.Â  The Exxon Mobil Court found plaintiff's proof of damages for mental
anguish lacking where the plaintiff testified that he found being terminated
from his employment "devastating," "life changing," and
"horrible."Â  Exxon Mobil Corp., 252
S.W.3d at 505.Â  His wife testified
that her husband was "devastated" when he had to tell his children
that he lost his job.Â  Id.Â 
A co-worker of the plaintiff also testified that, when plaintiff was
told of his termination, he was "devastated," reacted with an
"emotional outburst," was in a "state of disbelief and
shock," "extremely upset," and "could not sleep that night."Â  Id. Â (emphasis
added).Â  Â Â 
Â Â Â Â Â Â Â Â Â Â Â  Here,
Variyam testified to mental anguish that substantially affected his mental
state at home and at work.Â  He testified
that he was devastated, very distraught, and disappointed.Â  The defamation disrupted his family and distracted
him at home.Â  He acted differently at
home and was more introspective---spending time looking at the
information.Â  He considered moving his
family from Lubbock.Â  Work was also
disrupted and stressful.Â  He was
distracted, uncomfortable returning to work, embarrassed when he saw his colleagues,
and paranoid that people might be talking behind his back.Â  He still thinks about the defamatory
statements---the accusations "are still stuck in his mind."Â  He fears that others who saw the letter will
communicate the statements further, worries how the letter will affect his
future ability to practice medicine, fears how the communication to ACGME will
affect him in the future practice of his profession, and continues to suffer
from sleeplessness.Â  Because of Hancock's
statements, he testified he has suffered emotional difficulties and has seen "an
institutional person who has supported [him]." 
Â Â Â Â Â Â Â Â Â Â Â  We
agree with Variyam that his circumstances are more like the plaintiff's
circumstances in Bentley where the
Texas Supreme Court held that the plaintiff satisfied his burden of proof in
proving mental anguish.Â  In Bentley, the plaintiff testified at
trial that the defamation cost him time, deprived him of sleep, embarrassed him
in the community, disrupted his family life, distressed his children at school,
depressed him, impugned his honor and integrity, was the worst experience in
his life and caused his family to suffer.Â 
Bentley, 94
S.W.3d at 606.
Â Â Â Â Â Â Â Â Â Â Â  Having
reviewed all the evidence, we find that the record in this case does not
indicate that the jury's award of past and future mental anguish damages in the
amount of $30,000 is either excessive, or the result of passion, prejudice, or
other improper influence.Â  The amount was
within the jury's discretion and we will not substitute our judgment for that
of the jury.Â  See Peshak, 13 S.W.3d at 427
("amount of general damages is very difficult to determine, and the jury
is given wide discretion in its estimation of them").Â  Accordingly, we find Variyam's evidence is
legally and factually sufficient to support the jury's determination that $30,000
is "fair and reasonable" compensation for past and future mental
anguish Variyam suffered because of Hancock's libel per se.Â  
Â Â Â Â Â Â Â Â Â Â Â  Loss of Reputation
Â Â Â Â Â Â Â Â Â Â Â  In support of his contention that the
evidence supporting Variyam's award for past and future injury to his
reputation, $60,000, is legally and factually insufficient, Hancock again cites
Exxon Mobil Corp., supra.Â  Hancock asserts that, although Variyam felt
paranoid, there is no evidence his colleagues believed Hancock's statements and
Dr. Wesson, who demoted Variyam, did not receive Hancock's letter and had no
opinion about Variyam's reputation for truthfulness.Â  
Â Â Â Â Â Â Â Â Â Â Â  Because
the trial court correctly determined that Hancock's statements were libel per se, "the law presumes that [Variyam's]
reputation has been injured thereby."Â 
Leyendecker, 683 S.W.2d at
374; see Mustang Athletic Corp. v. Monroe,
137 S.W.3d 336, 339 (Tex.App.--Beaumont 2004, no pet.); ("In Leyendecker and Bentley, the Supreme Court of Texas held statements which are
defamatory per se entitle a
plaintiff, as a matter of law, to recover actual damages for injury to
reputation."); Peshak, 13 S.W.3d
at 427 ("In actions of libel per se,
the law presumes the existence of some actual damages, requiring no independent
proof of general damages."); Ryder
Truck Rentals, Inc., 593 S.W.2d at Â 337 (defamation per se entitles a plaintiff to presumed general damages for injury
to character, reputation, feelings, mental suffering or anguish, and other
wrongs not susceptible to monetary valuation).Â 
As such, Variyam was not required to present independent evidence that
his reputation was harmed or that his colleagues believed Hancock's statements.Â  Peshak,
13 S.W.3d at 427.[13]Â  That said, having reviewed the entire record,
there is sufficient evidence from which the jury could have inferred that Variyam's
demotion from his position as Chief of the Gastroenterology Division and
ACGME's denial of his application to reinstate the Fellowship Program were due,
at least in part, to the statements in Hancock's letter which was published
only weeks before these events took place.Â Â 

Â Â Â Â Â Â Â Â Â Â Â  Â Â Furthermore,
contrary to Hancock's argument that Dr. Wesson did not receive Hancock's letter
and had no opinion about Variyam's reputation for truthfulness, the record
indicates that Dr. Wesson testified that he did "not remember receiving
the letter" although he "remembered the issues."Â  Further, in addition to being listed as a
recipient of Hancock's letter on its second page, Dr. Wesson appeared very familiar
with the letter's contents in subsequent e-mails between Dr. Wesson, Variyam,
and other Texas Tech officials in January 2006 and testified that he recalled
consulting with Variyam on Hancock's letter and its potential harm to the
application for reinstatement.[14]Â  Although Dr. Wesson may not have had an
opinion on Variyam's reputation for truthfulness, he testified that, from his
personal interactions with Variyam, he found Variyam to be a truthful person
and disagreed with Hancock's statements that Variyam had a "reputation for
lack of veracity," "deals in half truths," and his "ethical
behavior should be challenged."Â  He
indicated that anyone from the University Medical Center, Physician Network
Services or any physician who complained of having personality issues with Variyam
never complained that Variyam was untruthful or dishonest.Â  Â Â 
Â Â Â Â Â Â Â Â Â Â Â  Hancock's
citation to Exxon Mobil Corp., supra,
is also unavailing.Â  The portions of Exxon Mobil Corp. cited by Hancock were
relevant only to the Exxon Mobil Court's
analysis of whether there was sufficient evidence to support the plaintiff's
award of damages for mental anguish, not injury to reputation.Â  Exxon
Mobil Corp., 252 S.W.3d at 505 n.10.Â  Moreover, Hancock fails to cite a single case
in support of his assertion that, where libel per se is found by the trial court, the plaintiff must present
independent evidence of injury to his or her reputation.Â  
Â Â Â Â Â Â Â Â Â Â Â  Accordingly,
we find the evidence is legally and factually sufficient to support the jury's
award of $60,000 in damages for past and future injury to Variyam's reputation
as a result of Hancock's letter.Â  
Â Â Â Â Â Â Â Â Â Â Â  Causation--Self-Publication
Â Â Â Â Â Â Â Â Â Â Â  Hancock next asserts that, because
Variyam self-published Hancock's statements a week after Hancock published the
statements,[15] Variyam
can recover no damages because he suffered no harm or the trial court should
have issued a charge that sought a jury determination of proportionate fault,
i.e., did Variyam cause some of his damages due to self-publication.Â  In support he cites the cases of Doe v. SmithKline Beecham Corp., 855
S.W.2d 248 (Tex.App.--Austin 1993), aff'd
as modified, 903 S.W.2d 347 (Tex. 1995) and Glenn v. Gidel, 496 S.W.2d 692, 698 (Tex.Civ.App.--Amarillo 1973,
no writ).Â  
Â Â Â Â Â Â Â Â Â Â Â  In
Doe, an employment applicant, Doe,
asserted that SmithKline libeled or slandered her by placing her in a situation
in which she felt obligated to disclose to other prospective employers the
circumstances of a drug test and the revocation of SmithKline's offer of
employment.Â  Doe, 855 S.W.2d at 259-260.Â  She did not allege that SmithKline published
the defamatory statement.Â  Id.Â 
The Doe Court affirmed summary
judgment in favor of the defendant on the defamation claim because there was no
indication that Doe was compelled by law or other authority to report the
alleged defamatory statement made by SmithKline.Â  Id. at 259.Â  In so
doing, the Doe Court relied on the
rule of law espoused in Lyle v. Waddle,
144 Tex. 90, 188 S.W.2d 770 (Tex. 1944), that "if the publication of which
plaintiff complains was consented to, authorized, invited or procured by
plaintiff, he cannot recover for injuries sustained by reason of the
publication."Â  Id. at 772.
Â Â Â Â Â Â Â Â Â Â Â  Here,
the circumstances are quite dissimilar.Â  First,
the trial court determined that Hancock's statements represented libel per se.Â 
Hence, there was no need to show Hancock's statements proximately caused
the injury to Variyam's reputation or mental anguish.Â  See
Fox, 98 S.W.3d at 726.Â  Secondly, the jury was specifically asked to
limit his damages to those damages "caused by the January 2, 2006
letter" from Hancock to Variyam's superiors and ACGME. Finally, there was
no evidence at trial that Variyam "consented to, authorized, invited or
procured" Hancock's publication.Â  
Â Â Â Â Â Â Â Â Â Â Â  Neither
does Glenn v. Gidel, supra, have any application here.Â  On appeal it was determined that the trial
court properly instructed a verdict favorable to all defendants where the
record was devoid of any evidence that the alleged defamatory statement was
overheard or communicated to a third party.Â 
Glenn, 496
S.W.2d at 698.Â  In the absence of
evidence of publication, the Glenn Court
held the alleged defamation is not actionable citing the rule in Lyle, supra.Â  Here, there was ample evidence of the publication
of Hancock's letter before Variyam sought a retraction.[16]Â  
Â Â Â Â Â Â Â Â Â Â Â  To
resolve what Hancock asserts to be equal inferences that Variyam's injury
resulted from his own self-publication rather than Hancock's publication, he
asserts the trial court should have issued a jury instruction which
proportioned fault between Variyam and Hancock, i.e., asked the jury whether Variyam's
injuries were caused by Hancock's publication or Variyam's publication.Â  A party objecting to a charge must point out
distinctly the objectionable matter and the grounds of the objection to the
trial court.Â  See Wilgus v. Bond, 730 S.W.2d 670, 672
(Tex. 1990).Â  Here, the trial court was
given no opportunity to correct the error Hancock now asserts.Â  Hancock failed to state such an objection
clearly designating the error and explaining the grounds for the
complaint.Â  See Wilgus, 730 S.W.2d at 672.Â  As a result, any complaint as to a question,
definition, or instruction, on account of the alleged defect or omission concerning
submission of the issue to the jury was waived.Â 
See Tex. R. Civ. P. 275; Kirkpatrick v. Memorial Hosp., 862
S.W.2d 762, 769 (Tex.App.--Dallas 1993, writ denied); Borden, Inc. v. Rios, 850 S.W.2d 821, 826 (Tex.App.--Corpus Christi
1993, no writ).Â  
Â Â Â Â Â Â Â Â Â Â Â  Exemplary Damages
Â Â Â Â Â Â Â Â Â Â Â  In
reviewing whether an exemplary damages award is constitutional, we consider
three "guideposts":Â  (1) the
nature of the defendant's conduct, (2) the ratio between exemplary and
compensatory damages, and (3) the size of civil penalties in comparable cases.Â  Tony
Gullo Motors I. L.P. v. Chapa, 212 S.W.3d 299, 308 (Tex. 2006) (citing State Farm Mut. Auto. Ins.
Co. v. Campbell, 538 U.S. 408, 418, 123 S.Ct.
1513, 155 L.Ed.2d 585 (2003)).Â  The reprehensibility of
Hancock's conduct (the most important of these guideposts); id. (quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct.
1589, 134 L.Ed.2d 809 (1996)), depends in turn on five more factors, i.e.,
whether Hancock's conduct (1) caused physical rather than economic harm, (2)
threatened the health or safety of others, (3) threatened someone who had
financial vulnerability (4) involved repeated action rather than an isolated
incident, and (5) the harm resulted from intentional malice, trickery, or
deceit as opposed to mere accident.Â  Bennett v. Reynolds, 315 S.W.3d 867, 874
(Tex. 2010) (citing State Farm, 538
U.S. at 419).[17]
Â Â Â Â Â Â Â Â Â Â Â  We
find that the exemplary damages awarded to Variyam were not excessive because
the ratio of general damages to exemplary damages was less than 1 to 1; see Bennett, 315 S.W.3d at 877 ("an
award of more than four times the amount of compensatory damages might be close
to the line of constitutional impropriety") (quoting State Farm, 538 U.S. at 425), and we have two Bennett factors present that establish the reprehensibility of
Hancock's conduct, i.e., his defamatory statements were sent to multiple
recipients, and his conduct was the result of intentional malice.Â  Compare
Tony Gullo Motors I. L.P., 212 S.W.3d at 308-09 (exemplary damages push the
constitutional limits where the ratio between general/economic and exemplary
damages is 4.33 to 1 and only one factor of five factors analyzed in BMW of North America, Inc., 517 U.S.
559, is present). Â 
Â Â Â Â Â Â Â Â Â Â Â  Hancock's
wrongful conduct involved the simultaneous publication of his defamatory
statements to two of Variyam's superiors, a colleague and ACGME.Â  His conduct was also "the result of
intentional malice rather than mere accident."Â  Bennett,
315 S.W.3d at
878.Â  Hancock testified at trial
that he wrote the letter when he was extremely angry about his dispute with Variyam
related to patient transfers.Â  He knew
the status of the ACGME application and was aware that his letter would be seen
by people at ACGME including physicians from across the country.Â  His letter violated the established protocol
at Texas Tech for communication with ACGME[18]
and he was aware his statements that Variyam had "a reputation for lack of
truthfulness" could have a "very, very serious effect on [Variyam's]
character."Â  If the letters were not
true, as subsequently found by the jury, he testified he was "basically
assassinating Variyam's character."Â 
From this evidence, the jury could infer that Hancock not only intended
to injure Variyam's prospects with his present employer, Texas Tech, but
possible future prospects of employment by sending the letter to ACGME, an independent
organization that accredits all institutions where medical training takes place
nationwide.[19]
Â Â Â Â Â Â Â Â Â Â Â  In
addition, the exemplary damages award is comparable in size to other defamation
cases.Â  See Clark, 248 S.W.3d at 427 (jury awarded $100,000 in exemplary
damages each against two defendants for libel per se); Bunton v. Bentley,
176 S.W.3d 21, 23 (Tex.App.--Tyler 2005, pet. denied), cert. denied, 547 U.S. 1013, 126 S.Ct. 1476, 164 L.Ed.2d 266 (2006)
($1,000,000 exemplary damages award reasonable in defamation case); Bradbury, 788 S.W.2d at 39 ($50,000 punitive
damages award in libel per se case
not excessive); Bolling, 671 S.W.2d
at 572 ($60,000 punitive damages award in slander per se case not excessive).Â  Accordingly,
issue two is overruled.
Issue Three - Anonymous
Letter
Â Â Â Â Â Â Â Â Â Â Â  Hancock
next asserts the trial court erred in admitting testimony of the existence of
an anonymous letter mailed nearly two weeks after Hancock's January 2nd letter that
complained to ACGME about the Fellowship Program.Â  Hancock asserts the testimony was irrelevant;
see Tex. R. Evid. 402,
and the original writing was required to prove the content of the anonymous
letter.Â  See Tex. R. Evid. 1002.Â  
Â Â Â Â Â Â Â Â Â Â Â  Evidentiary
rulings admitting or excluding evidence are committed to the trial court's sound
discretion; Bay Area Healthcare Group,
LTD. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007); American Protection Ins. Co. v. Johnson, 171 S.W.3d 921, 923
(Tex.App.--Amarillo 2005, no pet.), and, even if a trial court errs by
improperly admitting evidence, reversal is warranted only if the error probably
caused the rendition of an improper judgment.Â 
See Tex. R. App. P. 44.1; Owens-Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35, 43 (Tex. 1998).Â  Further,
we review the entire record and require the complaining party to demonstrate
that the judgment turns on the particular evidence admitted.Â  Bay Area Healthcare Group, LTD.,
239 S.W.3d at 234.Â  See Allen v. Creditwatch Services, LLC,
236 S.W.3d 315, 324 (Tex.App.--Corpus Christi 2007, pet. denied
) ("complaining party must usually show that the whole case turned
on the evidence at issue").
Â Â Â Â Â Â Â Â Â Â Â  Hancock
asserts the trial court should have excluded any and all evidence of the
anonymous letter sent to ACGME.[20]Â  At trial, Variyam acknowledged, when
testifying about the continuing process related to the ACGME reinstatement
application, that ACGME had received a letter "from an anonymous
source" and he wrote a letter "basically [responding] to the
anonymous complaints" received by ACGME against Drs. Farooq and
Parupudi.Â  Variyam's letter to ACGME,
admitted as an exhibit, referenced an "unnamed complainant" and
summarized the anonymous complaints made against Drs. Farooq and Parupudi in a
single paragraph.Â  The remainder of Variyam's
five-page letter addressed the qualifications and actions of Drs. Farooq and
Parupudi, and Variyam's efforts to assure ACGME that the Fellowship Program had
sufficient key clinical faculty to maintain the program.Â  In the second to last paragraph, the letter
stated that "[w]e suspect that the complaint came from a disgruntled
person who has some, but incomplete knowledge of our division."Â  Dr. Hancock's name was not mentioned in
connection with Variyam's testimony regarding the anonymous letter sent to
ACGME.
Â Â Â Â Â Â Â Â Â Â Â  Without
specifically stating how the case, or any material issue, turned on this
particular evidence, Hancock simply asserts that this testimony caused the
rendition of an improper judgment because the jury was permitted to speculate whether Hancock authored the
anonymous letter.Â  Because Hancock's
statements in his January 2nd letter were found by the trial court to be libel per se, the anonymous letter was wholly
irrelevant to the issue of whether Hancock's prior letter defamed Variyam.Â  See
Allen, 236 S.W.3d at 324.Â  Furthermore, Variyam's responsive letter
indicates that the anonymous complainant was someone other than Hancock who,
from the record, appeared to have complete knowledge of the Gastroenterology
Division.Â  Accordingly, we find that,
even if the trial court erred in admitting evidence of the anonymous letter, any
error was harmless.Â  See Shearson Lehman, 806 S.W.2d at 927
(admission of anonymous letter harmless error in defamation case where letter
did not refer to a matter dispositive of the case and did not establish that
the defendant was attempting to damage the plaintiff's reputation).Â  Hancock's third issue is overruled. 
Conclusion
Â Â Â Â Â Â Â Â Â Â Â  The
trial courtÂs judgment is affirmed.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Patrick
A. Pirtle
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Â Â Â Â Â  JusticeÂ  
Quinn, C.J., not participating.
Â 




[1]For purposes of disclosure, we note
that Justice Hancock is not related to Appellant.
Â 


[2]At
all times relevant to this case, Hancock knew that ACGME was an independent
organization that accredits institutions where medical training takes place
nationwide.Â  When Hancock wrote his
letter, he was aware that an application for reinstatement of Texas Tech's
Gastroenterology Fellowship was pending with ACGME and that Texas Tech and
ACGME were scheduled to meet toward the end of January 2006 to decide the fate
of Texas Tech's Fellowship Program of which Variyam was the Program
Director.Â  Hancock was also aware that
the letter would be received by ACGME's Residency Review Committee, a committee
comprised of physicians who were national experts in the field of
gastroenterology or internal medicine.Â 
In addition to Hancock's letter, ACGME received an anonymous letter
dated January 19 complaining about two doctors, Farooq and Parupudi,
participants in the gastroenterology training program. 


[3]From
the Charge of the Court, question 1
addressed the statement "reputation for lack of veracity"; whereas,
question 2 addressed the statement "deals in half truths, which is legally
the same as a lie."


[4]The
jury awarded Variyam $30,000 for loss of reputation in the past, $30,000 for
future loss of reputation, $15,000 for past mental anguish and $15,000 for
future mental anguish.


[5]Libel
is defined by statute as "defamation expressed in written or other graphic
form that tends to . . . injure a living person's reputation and thereby expose
the person to . . . financial injury or to impeach any person's honesty,
integrity, virtue, or reputation . . . ."Â 
Tex. Civ. Prac. & Rem.
Code Ann. Â§ 73.001 (West 2005).Â 
Although slander is not statutorily defined, at common law a slanderous
statement is one that is orally communicated or published to a third person
without legal excuse.Â  Randall's Food Markets v. Johnson, 891
S.W.2d 640, 646 (Tex. 1995).


[6]Hancock
does not challenge whether the evidence was sufficient to establish that his
statements were false, published, or made with malice.


[7]"There
can be no doubt that, at common law, to publish of a person in writing that he was
mendacious, or that he had uttered a falsehood, was libelous per se."Â  Fleming,
114 S.W. at 652.Â  "Such a
publication is a direct impeachment of the honesty and integrity of the person
against whom it is directed, and its tendency necessarily is to injure him by
exposing him to public hatred and contempt."Â  Id.



[8]If
Hancock's statements were constitutionally protected opinion speech, his statements
would not be actionable.Â  See Pisharodi v. Barrash,
116 S.W.3d 858, 862 (Tex.App.--Corpus Christi 2003, pet. denied).Â  


[9]In
Milkovich, the United States Supreme
Court stated as follows:
If a speaker says, "In my opinion John Jones is a liar," he
implies knowledge of facts which lead to the conclusion that Jones told an
untruth.Â  Even if the speaker states the
facts upon which he bases his opinion, if those facts are either incorrect or
incomplete, or if his assessment of them is erroneous, the statement may still
imply a false assertion of fact.Â  Simply
couching such statements in terms of opinion does not dispel these
implications; and the statement, "In my opinion Jones is a liar," can
cause as much damage to reputation as the statement, "Jones is a liar."Â  As Judge Friendly aptly
stated:Â  "[It] would be destructive
of the law of libel if a writer could escape liability for accusations of
[defamatory conduct] simply by using, explicitly or implicitly, the words 'I think.'"Â  See Cianci v. New Times Publishing Co., 639 F.2d
54, 64 (2d Cir. 1980).
Milkovich, 497 U.S. at 18-19.


[10]Other
courts have not found the term "dealing" ambiguous or troubling in
the defamation context.Â  For example, see Bradbury, 788 S.W.2d at
38 (letters that accused employee of "a lack of fidelity and honesty in
her dealings with her employer" were actionable per se); Butler v. Central
Bank & Trust Co., 458 S.W.2d 510, 514 (Tex.Civ.App.--Dallas 1970, writ
dism'd) ("[t]o charge an employee with dishonesty in his dealing with his
employer" is actionable per se).


[11]ÂIn
general, oral words, however opprobrious, are not actionable without proof of
specific damages, unless they impute to another the commission of a crime or
affect a person injuriously in his office, profession or occupation.Â  Written or printed words charging dishonesty,
fraud, rascality, or general depravity are generally libelous per se, but not so when spoken
orally."Â  Arant, 436 S.W.2d at 176 (quoting 36
Tex.Jur.2d, Libel and Slander, Â§ 3, pp. 282-83).Â  


[12]Less
than a scintilla of evidence exists when the evidence is so weak as to do no
more than create a mere surmise or suspicion of fact.Â  King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030, 124 S.Ct.
2097, 158 L.Ed.2d 711 (2004).Â  


[13]"A
third party is deemed to have understood the defamatory nature of a statement
if a reasonable person would have understood the statement under the
circumstances." Â In re Perry, 423 B.R. 215, 267
(Bankr. S.D. Tex. 2010) (citing Marshall Fields Stores, Inc. v. Gardiner, 859 S.W.2d 391, 396
(Tex.App.--Houston [1st Dist.] 1993, writ dism'd w.o.j.)).Â  A finding that a statement is defamatory per se subsumes the need for such a
determination.Â  See Leyendecker, 683 S.W.2d at 374.Â Â Â Â  


[14]Dr.
Wesson testified that the effect of Hancock's letter on the pending
reinstatement application with ACGME to reinstate the Fellowship Program would
have been negative.


[15]Hancock
refers to a letter sent January 9, 2006, by Variyam to Hancock wherein Variyam references the defamatory
statements made in Hancock's letter and requests that he make a retraction in
the form of a written letter addressed to all the recipients of Hancock's
January 2nd letter.Â  With the exception
of ACGME, Variyam's letter copied only the recipients of Hancock's letter, Dean
Bernard Mittemeyer, Dr. Donald Wesson, and Dr. David Hodges.Â  Thus, Hancock had already published his
libelous statements to the recipients of Variyam's letter at least a week
before they received a copy of Variyam's letter.Â Â Â Â Â Â  


[16]The
evidence at trial showed that, in addition to the addressees of Hancock's
letter, some form of publication of the letter's contents was made to Dr.
Eugene Dabezies, then Chairman of the Orthopedic Surgery Department at Texas
Tech.Â  He testified at trial that he
heard of a controversy in the Gastroenterology Department involving an
allegation that Variyam had a reputation for not being truthful, but it didn't
make sense to him.Â  To the contrary, Dr.
Dabezies testified at trial that Variyam "was a truthful person,"
"well respected in the medical community as a person to take care of
patients" and "a scholar."Â 

Â 


[17]Because
we have determined Variyam is entitled to recover damages for injury to
reputation and mental anguish, we need not consider Hancock's argument that
Variyam is entitled to no exemplary damages because he did not recover actual
damages.Â  Under Texas law, generally, the
recovery of actual damages is a prerequisite to the receipt of exemplary
damages.Â  Nabours v. Longview Savings & Loan
Association, 700 S.W.2d 901, 903 (Tex. 1985).Â  


[18]Dr.
Surendra Varma, Associate Dean for Graduate Medical Education and Chair of the
Graduate Medical Education Committee at Texas Tech, testified that it was
inappropriate for anyone to communicate directly with ACGME unless they were
the Program Director, Variyam, or the Designated Information Officer, Jim
Watters.Â  In addition, he testified it
was an ACGME requirement that all correspondence with ACGME go through the
Graduate Medical Education Committee. 


[19]The
fact that Hancock unnecessarily mailed an additional copy of the letter to
ACGME reflects a malicious intent.Â  Leyendecker, 683
S.W.2d at 375.


[20]We
note that record references to an anonymous letter represented isolated
statements contained in four pages out of over five hundred thirty pages of
testimony over a three day trial.Â 
Further, Variyam's counsel did not mention the anonymous letter in
either his opening or closing statements.Â 



