Vanessa Velez Labrado v. Leith Labrado and Laboe Labrado

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-24-00220-CV
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Vanessa Velez Labrado, Appellant

v.

Leith Labrado and Laboe Labrado, Appellees

On Appeal from the 243rd District Court
El Paso County, Texas
Trial Court No. 2021DCV3955

CONCURRING AND DISSENTING MEMORANDUM OPINION

I agree with the majority opinion’s assessment of Laboe’s and Leith’s abuse-of-process

claims, i.e., that there was no evidence Vanessa made improper use of any temporary order in the

divorce case after its issuance. But I write separately for three reasons relating to Leith’s and

Laboe’s malicious prosecution claims: (1) because the jury charge’s definition of the judicial-

proceedings privilege was not challenged, the legal sufficiency of evidence supporting this

privilege must be assessed based on the charge’s definition, not the correct definition under the

law; (2) I disagree that legally insufficient evidence supports Laboe’s malicious prosecution claim;
and (3) I agree that legally insufficient evidence supports Leith’s malicious prosecution claim, but

I reach that conclusion based on insufficient evidence of a special injury.

A. The judicial-proceedings privilege

When a jury charge definition is not challenged, we measure sufficiency of the evidence

under the charge’s definition, even if it is not the correct definition under the law. See Mem’l

Hermann Health Sys. v. Gomez, 649 S.W.3d 415, 426 n.32 (Tex. 2022) (“[I]t is the court’s charge

. . . that measures the sufficiency of the evidence when the opposing party fails to object to the

charge.”) (citing Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (collecting authorities)); cf.

Seger v. Yorkshire Ins. Co., Ltd., 503 S.W.3d 388, 407–08 (Tex. 2016) (“When a party properly

preserves error by objecting to an erroneous definition . . ., we measure the legal sufficiency of the

evidence against the definition that should have been used in the charge.”). Here, the charge

defined the judicial-proceedings privilege—i.e., “absolute immunity”—as applying solely to trial

testimony:

When a defendant testifies at trial, no civil liability for malicious prosecution may
arise from that testimony. Here, the defendant has claimed that she is immune from
civil liability based on her testimony in the underlying divorce proceedings,
resulting in a restraining order and subsequent protective order.

Vanessa neither objected to this definition at the trial court level, nor does she argue on

appeal that it is incorrect. Further, while Vanessa does argue that a separate question should have

been submitted on the judicial-proceedings privilege since it provides an affirmative defense, she

neither proffered such a question nor otherwise brought this issue to the trial court’s attention,

thereby waiving the issue. See Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 919–20 (Tex. 2015)

(“[T]here should be but one test for determining if a party has preserved error in the jury charge,

and that is whether the party made the trial court aware of the complaint, timely and plainly, and

obtained a ruling.”) (citing State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235,

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241 (Tex. 1992)).1 Thus, in accordance with the charge, when assessing the sufficiency of the

evidence, I would limit application of the judicial-proceedings privilege to trial testimony in the

underlying divorce proceedings as the jury was instructed to do.

Rather than using the charge’s definition of the judicial-proceedings privilege, the majority

opinion looks to caselaw, which defines the judicial-proceedings privilege more broadly,

extending it to “proceedings before executive officers, and boards and commissions which exercise

quasi-judicial powers,” per Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942),

which the opinion concludes encompasses CPS and Daycare Licensing investigations. Caselaw

further defines the privilege to broadly cover “any statement made by . . . parties or witnesses,”

and to attach to “all aspects of the proceedings, including statements made in open court, pre-trial

hearings, depositions, affidavits[,] and any of the pleadings or other papers in the case.” Landry’s,

Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 2021). Based on the caselaw, the majority

opinion concludes that the judicial-proceedings privilege “bars Appellees’ malicious prosecution

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Vanessa also argues that a separate question should have been submitted on good-faith immunity under Texas Family
Code § 261.106, which provides an affirmative defense precluding civil liability for reporting child abuse or
participating in a child-abuse investigation. See Tex. Fam. Code Ann. § 261.106(a) (“A person acting in good faith
who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise
participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect
is immune from civil . . . liability that might otherwise be incurred or imposed.”); Graves v. Evangelista-Ysasaga, No.
14-22-00137-CV, 2023 WL 370589, at *6 (Tex. App.—Houston [14th Dist.] Jan. 24, 2023, pet. denied) (holding that
§ 261.106 immunity is an affirmative defense). Vanessa did proffer such a question below, which the trial court
rejected. However, malice on the defendant’s part is a required element in a malicious prosecution claim, while
absence of malice on the defendant’s part is required for immunity to apply under § 261.106. See Tex. Beef Cattle Co.
v. Green, 921 S.W.2d 203, 207 (Tex. 1996) (“To prevail in a suit alleging malicious prosecution of a civil claim, the
plaintiff must establish . . . malice in the commencement of the [underlying] proceeding[.]”); Tex. Fam. Code Ann. §
261.106(c) (“A person . . . who acts . . . with malicious purpose in reporting alleged child abuse or neglect is not
immune from civil or criminal liability.”). As a result, § 261.106 immunity will generally play no role in a malicious
prosecution case based on participation in a CPS or Daycare Licensing investigation. That is, if the factfinder
concludes—as the jury did here—that the malice element of the malicious prosecution claim has been met, § 261.106
immunity is unavailable, and if the factfinder concludes that the malice element has not been met, § 261.106 immunity
is unnecessary. Vanessa does not challenge the jury’s finding that she acted with malice, thus she is not entitled to
immunity under § 261.106. Moreover, Vanessa does not seek relief in the form of a new trial, see Tex. R. App. P.
38.1(j) (appellant’s brief must “clearly state[] the nature of the relief sought”), which would be the only relief available
for harmful jury charge error. See Glenn v. Leal, 596 S.W.3d 769, 772 (Tex. 2020) (“When a trial court gives an
erroneous charge that instructs the jury on the incorrect law applicable in the case, we have held that a new trial is the
appropriate remedy.”). The majority opinion does not address § 261.106 immunity.

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. . . claims based on the statements Vanessa made during the CPS investigations.” But because

statements Vanessa made during the CPS and Daycare Licensing investigations do not constitute

trial testimony, I would conclude that such statements are not protected by the judicial-proceedings

privilege under the controlling charge definition in this particular case.

B. Laboe’s malicious prosecution claim

In regard to Laboe’s malicious prosecution claim, Vanessa challenges the legal sufficiency

of the evidence presented in support of elements one, two, and six: “(1) the institution or

continuation of civil proceedings against the plaintiff; (2) by or at the insistence of the defendant;

. . . and (6) special damages.” See Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 207

(Tex. 1996) (stating elements of malicious prosecution claim). She also challenges the legal

sufficiency of evidence supporting mental anguish damages.

(1) Institution or continuation of civil proceedings by or at the insistence of
Vanessa

As to elements one and two, I cannot agree with the majority opinion’s conclusion that

although Laboe testified that “HHS [Daycare Licensing] initiated an investigation into him . . .

based on a ‘claim’ made by Vanessa,” he “did not elaborate on the ‘claim’”; thus, this evidence is

“so weak as to do no more than create a mere surmise or suspicion of its existence, . . . is no more

than a scintilla and, in legal effect, is no evidence.”

Laboe testified as follows:

Q. Okay. Was there an investigation that was instituted by [Vanessa] against you
with the people who license daycares?
A. Yes.
. . .
Q. Was there an investigation that was made against you and/or Three R’s
Schools with the licensing for daycares because of a claim made by [Vanessa]?
A. There was two of them. Yes, ma’am.
The issue here is simply whether Vanessa initiated an investigation against Laboe, not

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whether her complaint against him contained any specific content.2 See Texas Beef, 921 S.W.2d at

207. But even if I were to agree that Laboe’s testimony was legally insufficient, the record contains

additional relevant evidence. As explained above, the judicial-immunity privilege does not extend

to statements made by Vanessa in the CPS and Daycare Licensing investigations. As the majority

opinion acknowledges, Luis Ceballos, the Daycare Licensing investigator, testified that Vanessa

told him, among other things, that “on the night of April 5th, 2020, [her child, L.L.] was found in

the restroom crying and claiming that his butt was hurting (itchy) because of his father, Leith, and

uncle Laboe,” and “both [Leith] and Laboe stuck their finger in his butt while being cared for by

[Leith] at Three R’s Daycare,” and that “[L.L.] mentioned that Laboe touched his penis.” I would

conclude that these statements constitute legally sufficient evidence to support the jury’s finding

that Vanessa “initiated or continued administrative proceedings with . . . Daycare Licensing[.]”

(2) Special damages

As to the “special injury” or “special damages” element of a malicious prosecution claim,

evidence of an “arrest, attachment, injunction, or sequestration” is required. See id. at 208–09 (“A

plaintiff must suffer a special injury before recovering for malicious prosecution of a civil case. It

is insufficient that a party has suffered the ordinary losses incident to defending a civil suit, such

as inconvenience, embarrassment, discovery costs, and attorney’s fees. . . . There must be some

physical interference with a party’s person or property in the form of an arrest, attachment,

injunction, or sequestration.”). Here, Vanessa argues there is no evidence that Laboe suffered such

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In addition to arguing there is no evidence that she initiated a relevant prior proceeding, Vanessa also argues there is
no evidence that she continued such a proceeding. See Texas Beef, 921 S.W.2d at 207 (malicious prosecution claim
may be based on either initiation or continuation of prior proceeding). The majority opinion concludes that “because
the CPS and HHS investigations continued based on outcries made to other individuals, . . . there is no evidence that
civil proceedings were continued only at Vanessa’s insistence.”) (emphasis added). However, the law does not require
the prior proceeding to have been continued solely at the defendant’s insistence. See Browning-Ferris Indus., Inc. v.
Lieck, 881 S.W.2d 288, 292 (Tex. 1994) (“Just as there may be more than one proximate cause of an event, a single
prosecution may be procured by more than one person.”) (discussing malicious criminal prosecution); Gilbreath v.
Horan, 682 S.W.3d 454, 491–92 (Tex. App.—Houston [1st Dist.] 2023, pet. denied) (discussing conspiracy to engage
in malicious prosecution).

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an injury, as the temporary orders restricting him from seeing Leith’s children arose out of Leith’s

divorce case, not the Child Protective Services and Daycare Licensing investigations made the

basis of Laboe’s malicious prosecution claim. However, Laboe testified he was kept away from

his daycare business for almost six months as a result of the Daycare Licensing investigation.

Vanessa does not address this evidence, which I would conclude is legally sufficient to meet the

special-injury requirement.

(3) Mental anguish damages

I would also conclude that Laboe presented legally sufficient evidence to support the jury’s

$25,000 mental anguish damages award. Vanessa argues that there was no evidence of the “nature,

duration, or severity” of Laboe’s mental anguish symptoms, and that his own testimony “fail[ed]

to rise to the level of purported anguish to establish the existence of a substantial disruption in [his]

daily routine because of that mental anguish,” nor was there “any other evidence of a high degree

of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or

anger.” But, as Vanessa herself notes, Laboe testified that:

• The Daycare Licensing investigation made him “[v]ery embarrassed, very upset, very
frustrated, and very[,] very sad.”
• “It’s a horrible feeling to have to talk with these accusations to people that you work
with on a professional level”; “[T]his is the worst of the worst that can happen in
daycare.”
• The allegations against “his children” made him feel “[h]orrible, embarrassed, and just
sad.”
• Telling his parents about the allegations made him feel “[h]umiliated, mad, extremely
sad. It was one of the most horrible experiences I had to tell [] my parents.”
• He experienced problems with “[l]oss of sleep, weight loss, extreme duress, constant
fear[.]”
• He got physically ill.
• His professional reputation was harmed.
• His greatest fear is that “[Vanessa] does not stop harassing, making these false

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allegations, continuing hurting the business, continually harming the relationship I had
with [D.D. and N.D.] . . . . It just doesn’t stop. This has happened for four years. It has
not stopped.”
Further, as noted above, Laboe testified that he was kept away from his daycare business

for almost six months as a result of the Daycare Licensing investigation. I would conclude that

together, this evidence is legally sufficient to establish the existence of mental anguish. See

Anderson v. Durant, 550 S.W.3d 605, 620 (Tex. 2018) (holding that the following testimony was

sufficient to establish the existence of mental anguish: “The accusations . . . affected me. They

basically destroyed me . . . . [S]ince these accusations have come about, I’m paranoid about going

outside. Have trouble focusing. Anxiety, anxious. It’s been a two-year nightmare trying to get my

life back and my reputation back[.]”; “I had trouble sleeping. I had trouble eating. I had trouble

focusing on things. I worried about my family’s future. Worried about my 30–year career that had

been slandered all over town.”).

Vanessa further argues that “there was no evidence to support the amount of damages[.]”

I would conclude that the evidence described above is legally sufficient in this regard as well. See

Gregory v. Chohan, 670 S.W.3d 546, 560 (Tex. 2023) (“[T]he same kind of evidence [relevant to

the existence of mental anguish damages]—of [their] “nature, duration, and severity”—will

naturally also be relevant to the amount awarded.”) (emphasis in original); id. at 557 (noting that

prior decisions “acknowledge the inherent indeterminacy of noneconomic awards and the

discretion that must be afforded to juries asked to assign a dollar value to emotional injury”).

Thus, because the legal sufficiency challenges to Laboe’s malicious prosecution claim—

that there was no evidence Vanessa initiated or continued a prior civil proceeding and no evidence

Laboe suffered a special injury or mental anguish damages—lack merit, I would conclude the trial

court’s judgment should be affirmed as to this claim.

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C. Leith’s malicious prosecution claim

Finally, in regard to Leith’s malicious prosecution claim, I agree with the majority

opinion’s conclusion that the jury’s verdict in his favor cannot stand, but for a different reason.

Vanessa challenged the legal sufficiency of the evidence supporting the special-injury element. As

she notes, the only “special injuries” Leith contends he suffered are being restrained from seeing

his children and kept away from his home. However, it is undisputed that the temporary orders

imposing these restrictions arose out of Leith’s divorce case, not the Child Protective Services and

Daycare Licensing investigations made the basis of his malicious prosecution claim. Absent a

special injury arising from these investigations, Leith cannot recover for malicious prosecution

based on them. See Sharif-Munir-Davidson Dev. Corp. v. Bell, 788 S.W.2d 427, 430 (Tex. App.—

Dallas 1990, writ denied) (“The rule in Texas denies an award of damages for the prosecution of

civil suits, with malice and without probable cause, unless the party sued suffers some interference,

by reason of the suits, with his person or property.”) (citing Pye v. Cardwell, 222 S.W. 153, 153

(Tex. 1920)). Accordingly, I agree with the majority opinion’s conclusion that the trial court’s

judgment should be reversed as to Leith’s malicious prosecution claim.

D. Conclusion

For the reasons stated above, I join in the majority opinion’s disposition of Laboe’s and

Leith’s abuse-of-process claims, dissent from its conclusion that Laboe is not entitled to prevail

on his malicious prosecution claim, and concur in its conclusion that Leith is not entitled to prevail

on his malicious prosecution claim.

LISA J. SOTO, Justice

October 31, 2025

Before Salas Mendoza, C.J., Palafox and Soto, JJ.
Soto, J., concurring and dissenting

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