truth defense in Texas

2023In other words, “the substantial truth doctrine precludes liability for a publication that correctly conveys a story’s ‘gist’ or ‘sting’ although erring in the details.” Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000).

2021In 12 other words, “the substantial truth doctrine precludes liability for a publication that correctly conveys a story’s ‘gist’ or ‘sting’ although erring in the details.” Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000); see McIlvain v. Jacobs, 794 S.W.2d 14 , 15–16 (Tex. 1990).

2021In 12 other words, “the substantial truth doctrine precludes liability for a publication that correctly conveys a story’s ‘gist’ or ‘sting’ although erring in the details.” Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000); see McIlvain v. Jacobs, 794 S.W.2d 14 , 15–16 (Tex. 1990).

2019This evaluation involves looking to the “gist” of the statement.” Austin[ v. Inet Techs., Inc.], 118 S.W.3d[ 491,] 496 [(Tex. App.—Dallas 2003, no pet.)] (citing McIlvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990)); see also Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000) (noting “the substantial truth doctrine precludes liability for a publication that correctly conveys a story’s ‘gist’ or ‘sting’ although erring in the details”); Langston v. Eagle Printing Co., 797 S.W.2d 66, 69 (Tex. App.—Waco 1990, no writ) (stating a publication is substantially true even if it “greatly exag

2019"The United States Supreme Court and this Court long ago shifted the burden of proving the truth defense to require the plaintiff to prove the defamatory statements were false when the statements were made by a media defendant over a public concern." Neely , 418 S.W.3d at 62 (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 , 777, 106 S.Ct. 1558 , 89 L.Ed.2d 783 (1986) ).

2019By its own terms, the warrant sought all communications among Halsey, the Halls, and other 4 “The United States Supreme Court and this Court long ago shifted the burden of proving the truth defense to require the plaintiff to prove the defamatory statements were false when the statements were made by a media defendant over a public concern.” Neely, 418 S.W.3d at 62 (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986)). 11 Rxpress owners and associates that related either to payments made by Rxpress or to aspects of Rxpress’s “ownership, control, responsibility, direction, [

2017Klentzman v. Brady, 312 S.W.3d 886, 899 (Tex. App.-Houston [1st Dist.] 2009, no pet.) (citing Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516-17 , 111 S.Ct. 2419 , 115 L.Ed.2d 447 (1991); McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990)); see also D Magazine, No. 15-0790, slip op. at 8, — S.W.3d at We agree with Cox Media’s summation of the article: “The Statesman article is a comprehensive investigation of regulatory action against, and the lack of criminal prosecution of, doctors who allegedly violate laws regarding prescription drugs.” The article does not, as Joselevitz asserts,

2017Klentzman v. Brady, 312 S.W.3d 886, 899 (Tex. App.-Houston [1st Dist.] 2009, no pet.) (citing Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516-17 , 111 S.Ct. 2419 , 115 L.Ed.2d 447 (1991); McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990)); see also D Magazine, No. 15-0790, slip op. at 8, — S.W.3d at We agree with Cox Media’s summation of the article: “The Statesman article is a comprehensive investigation of regulatory action against, and the lack of criminal prosecution of, doctors who allegedly violate laws regarding prescription drugs.” The article does not, as Joselevitz asserts,

2015This evaluation involves looking to the ‘gist’ of the statement.” Austin, 118 S.W.3d at 496 (citing McIlvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990)); see also Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000) (noting “the substantial truth doctrine precludes liability for a publication that correctly conveys a story’s ‘gist’ or ‘sting’ although erring in the details”); Langston v. Eagle Printing Co., 797 S.W.2d 66, 69 (Tex. App.—Waco 1990, no writ) (stating a publication is substantially true even if it “greatly exaggerate[s]” plaintiff’s misconduct, as long as “an ordinary rea

2005See , e.g. , Cram Roofing Co. v. Parker , 131 S.W.3d 84, 90 (Tex. App.--San Antonio 2003, no pet.); Austin v. Inet Techs. , Inc ., 118 S.W.3d 491, 496 (Tex. App.--Dallas 2003, no pet.); Larson v. Family Violence & Sexual Assault Prevention Ctr. , 64 S.W.3d 506, 515 (Tex. App.--Corpus Christi 2001, pet. denied).

2015See Murff v. Pass, 249 S.W.3d 407 , 409 n.1 (Tex. 2008) (per curiam) (defining term as “the greater weight of the credible evidence”); Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App.—San Antonio 2014, no pet.) (observing, with reference to the TCPA’s “preponderance of the evidence” standard, that the phrase’s “particular meaning . . . in both civil and criminal cases means the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim” (citing Rickels v. State, 202 S.W.3d 759 , 763–64 (Tex. Crim.

2015See Murff v. Pass, 249 S.W.3d 407 , 409 n. 1 (Tex.2008) (per curiam) (defining term as "the greater weight of the credible evidence"); Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex.App.—San Antonio 2014, no pet.) (observing, with reference to the TCPA’s "preponderance of the evidence” standard, that the phrase's "particular meaning ... in both civil and criminal cases means the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim” (citing Rickels v. State, 202 S.W.3d 759, 763-64 (Tex.Crim.App.2006))); see also Tex. Gov’t Code. § 311.011(b)

2005See , e.g. , Cram Roofing Co. v. Parker , 131 S.W.3d 84, 90 (Tex. App.--San Antonio 2003, no pet.); Austin v. Inet Techs. , Inc ., 118 S.W.3d 491, 496 (Tex. App.--Dallas 2003, no pet.); Larson v. Family Violence & Sexual Assault Prevention Ctr. , 64 S.W.3d 506, 515 (Tex. App.--Corpus Christi 2001, pet. denied).

2005See, e.g., Cram Roofing Co. v. Parker, 131 S.W.3d 84, 90 (Tex. App.—San Antonio 2003, no pet.); Austin v. Inet Techs., Inc., 118 S.W.3d 491, 496 (Tex. App.—Dallas 2003, no pet.); Larson v. Family Violence & Sexual Assault Prevention Ctr., 64 S.W.3d 506, 515 (Tex. App.—Corpus Christi 2001, pet. denied).

2005See , e.g. , Cram Roofing Co. v. Parker , 131 S.W.3d 84, 90 (Tex. App.--San Antonio 2003, no pet.); Austin v. Inet Techs. , Inc ., 118 S.W.3d 491, 496 (Tex. App.--Dallas 2003, no pet.); Larson v. Family Violence & Sexual Assault Prevention Ctr. , 64 S.W.3d 506, 515 (Tex. App.--Corpus Christi 2001, pet. denied).

2005See, e.g., Cram Roofing Co. v. Parker, 131 S.W.3d 84, 90 (Tex. App.—San Antonio 2003, no pet.); Austin v. Inet Techs., Inc., 118 S.W.3d 491, 496 (Tex. App.—Dallas 2003, no pet.); Larson v. Family Violence & Sexual Assault Prevention Ctr., 64 S.W.3d 506, 515 (Tex. App.—Corpus Christi 2001, pet. denied).

2024A. Standard of Review & Applicable Law “The burden of proving ineffective assistance of counsel is on the appellant by a preponderance of the evidence.” Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.— Corpus Christi–Edinburg 2000, no pet.); see Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App.—San Antonio 2014, no pet.) (“The particular meaning of ‘preponderance of the evidence’ in both civil and criminal cases means the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim.”).

2015See Murff v. Pass, 249 S.W.3d 407 , 409 n. 1 (Tex.2008) (per curiam) (defining term as "the greater weight of the credible evidence"); Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex.App.—San Antonio 2014, no pet.) (observing, with reference to the TCPA’s "preponderance of the evidence” standard, that the phrase's "particular meaning ... in both civil and criminal cases means the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim” (citing Rickels v. State, 202 S.W.3d 759, 763-64 (Tex.Crim.App.2006))); see also Tex. Gov’t Code. § 311.011(b)

2015See Murff v. Pass, 249 S.W.3d 407 , 409 n.1 (Tex. 2008) (per curiam) (defining term as “the greater weight of the credible evidence”); Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App.—San Antonio 2014, no pet.) (observing, with reference to the TCPA’s “preponderance of the evidence” standard, that the phrase’s “particular meaning . . . in both civil and criminal cases means the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim” (citing Rickels v. State, 202 S.W.3d 759 , 763–64 (Tex. Crim.

2015See Murff v. Pass, 249 S.W.3d 407 , 409 n. 1 (Tex.2008) (per curiam) (defining term as "the greater weight of the credible evidence"); Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex.App.—San Antonio 2014, no pet.) (observing, with reference to the TCPA’s "preponderance of the evidence” standard, that the phrase's "particular meaning ... in both civil and criminal cases means the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim” (citing Rickels v. State, 202 S.W.3d 759, 763-64 (Tex.Crim.App.2006))); see also Tex. Gov’t Code. § 311.011(b)

2009Miller v. Miller, 903 S.W.2d 45, 48 (Tex.App.–Tyler 1995, no pet.).

2009Miller v. Miller , 903 S.W.2d 45, 48 (Tex.App.-Tyler 1995, no pet.).

2009See, e.g., City of Brownsville v. Pena, 716 S.W.2d 677, 682 (Tex. App.–Corpus Christi 1986, no writ).

2009See, e.g., City of Brownsville v. Pena, 716 S.W.2d 677, 682 (Tex.App.-Corpus Christi 1986, no writ).

2019"The United States Supreme Court and this Court long ago shifted the burden of proving the truth defense to require the plaintiff to prove the defamatory statements were false when the statements were made by a media defendant over a public concern." Neely , 418 S.W.3d at 62 (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 , 777, 106 S.Ct. 1558 , 89 L.Ed.2d 783 (1986) ).

2019"The United States Supreme Court and this Court long ago shifted the burden of proving the truth defense to require the plaintiff to prove the defamatory statements were false when the statements were made by a media defendant over a public concern." Neely , 418 S.W.3d at 62 (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 , 777, 106 S.Ct. 1558 , 89 L.Ed.2d 783 (1986) ).

2024See Coleman, 685 S.W.3d at 76; see also Vice v. Kasprzak, 318 S.W.3d 1 , 17 n.9 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“The test is the same whether the burden of proving falsity rests on the plaintiff or on the defendant proving the . . . defense of substantial truth.”).

2024See Coleman, 685 S.W.3d at 76; see also Vice v. Kasprzak, 318 S.W.3d 1 , 17 n.9 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“The test is the same whether the burden of proving falsity rests on the plaintiff or on the defendant proving the . . . defense of substantial truth.”).

2019This evaluation involves looking to the “gist” of the statement.” Austin[ v. Inet Techs., Inc.], 118 S.W.3d[ 491,] 496 [(Tex. App.—Dallas 2003, no pet.)] (citing McIlvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990)); see also Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000) (noting “the substantial truth doctrine precludes liability for a publication that correctly conveys a story’s ‘gist’ or ‘sting’ although erring in the details”); Langston v. Eagle Printing Co., 797 S.W.2d 66, 69 (Tex. App.—Waco 1990, no writ) (stating a publication is substantially true even if it “greatly exag

2015This evaluation involves looking to the ‘gist’ of the statement.” Austin, 118 S.W.3d at 496 (citing McIlvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990)); see also Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000) (noting “the substantial truth doctrine precludes liability for a publication that correctly conveys a story’s ‘gist’ or ‘sting’ although erring in the details”); Langston v. Eagle Printing Co., 797 S.W.2d 66, 69 (Tex. App.—Waco 1990, no writ) (stating a publication is substantially true even if it “greatly exaggerate[s]” plaintiff’s misconduct, as long as “an ordinary rea

2019Citing Article 46.05, 24 Id. at 90; see also Art. 46.05(k). 25 Id. (citing Druery v. State, 412 S.W.3d 523, 540 (Tex. Crim.

2015See Druery v. State, 412 S.W.3d 523, 540 (Tex. Crim.

2014Rep. 529, 530 (K.B. 1772), quoted in Burns v. Reed, 500 U.S. 478, 490 (1991)).

2013Rep. 529, 530 (K.B. 1772), quoted in Burns v. Reed, 500 U.S. 478, 490 (1991)).

2008See Riemer, 94 S.W.3d at 109 ; see also Gragg, 151 S.W.3d at 554 (affirming inverse condemnation judgment against government where landowner proved taking was not unintended). [3] At this stage of the proceedings, the government did not controvert the Porrettos' allegations of ownership of the land in question, and have challenged the Porrettos' claims without regard to the truth of their claim of ownership. [4] It is true that, to prove their takings claim, the Porrettos necessarily will have to prove that they own the property that the State allegedly has taken or used.

2008See Riemer, 94 S.W.3d at 109 ; see also Gragg, 151 S.W.3d at 554 (affirming inverse condemnation judgment against government where landowner proved taking was not unintended). 3 At this stage of the proceedings, the government did not controvert the Porret-tos’ allegations of ownership of the land in question, and have challenged the Porret-tos’ claims without regard to the truth of their claim of ownership. 4 It is true that, to prove their takings claim, the Porrettos necessarily wall have to prove that they own the property that the State allegedly has taken or used.

2008See Riemer, 94 S.W.3d at 109 ; see also Gragg, 151 S.W.3d at 554 (affirming inverse condemnation judgment against government where landowner proved taking was not unintended). [3] At this stage of the proceedings, the government did not controvert the Porrettos' allegations of ownership of the land in question, and have challenged the Porrettos' claims without regard to the truth of their claim of ownership. [4] It is true that, to prove their takings claim, the Porrettos necessarily will have to prove that they own the property that the State allegedly has taken or used.

2008See Riemer, 94 S.W.3d at 109 ; see also Gragg, 151 S.W.3d at 554 (affirming inverse condemnation judgment against government where landowner proved taking was not unintended). 3 At this stage of the proceedings, the government did not controvert the Porret-tos’ allegations of ownership of the land in question, and have challenged the Porret-tos’ claims without regard to the truth of their claim of ownership. 4 It is true that, to prove their takings claim, the Porrettos necessarily wall have to prove that they own the property that the State allegedly has taken or used.

2022Morning News, Inc. v. Hall, 579 S.W.3d 370, 380 (Tex. 2019) (“[M]edia outlets that accurately report allegations 18 made by a third party about matters of public concern can assert the truth as a defense.”).

2022Under Section 73.005, “media outlets that accurately report allegations made by a third party about matters of public concern can assert the truth as a defense.” Hall, 579 S.W.3d at 380 ; see also Brinkley v. Fishbein, 110 F.2d 62, 64 (5th Cir. 1940).

2019See 567 S.W.3d at 19-20 (citing Global Relief , 390 F.3d at 983 ).

2015Id. at 986 .

2015Regarding proof of the truth or falsity of defamatory statements, a plaintiff in Texas must prove that the statements are false if the defendant is a member of the media and the statement is a matter of public concern. 57 Neither the United States Supreme Court nor the Texas Supreme Court has required proof of falsity by more than a preponderance of the evidence. 58 The Texas Supreme Court has thus far not abrogated the common law rule that the truth is a defense in 55 Neely, 418 S.W.3d at 61 . 56 Hancock v. Variyam, 400 S.W.3d 59, 65, n.7 (Tex. 2013). 57 See Hepps, 475 U.S. at 776 , 106 S. Ct

2012See id. at 605 (requiring evidentiary review of exemplary damages to ensure that award is not jury’s “disguised disapproval of the defendant”). 27 Falsity In its second evidentiary-sufficiency argument, Waste Management asserts that the “evidence on falsity is insufficient because the Action Alert was substantially true as a matter of law, or is protected as non-actionable opinion.” Specifically, Waste Management asserts that “the ‘gist or sting’ of statements in the Action Alert is the same or less harmful than the true facts, when taken as a whole and as understood by a reasonable reader of

2024Claims of ineffective assistance of counsel are evaluated under the two-step analysis articulated in Strickland v. Washington, 466 U.S. 668 (1984), and “an appellant’s failure to satisfy one prong of the Strickland test negates a court’s need to consider the other prong.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.

2024A. Standard of Review & Applicable Law “The burden of proving ineffective assistance of counsel is on the appellant by a preponderance of the evidence.” Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.— Corpus Christi–Edinburg 2000, no pet.); see Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App.—San Antonio 2014, no pet.) (“The particular meaning of ‘preponderance of the evidence’ in both civil and criminal cases means the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim.”).

2023We note that the term “gist” means “the main point or part” or “essence.” Reedy v. Webb, 113 S.W.3d 19, 24 (Tex. App.—Tyler 2002, pet. denied) (citing WEBSTER’S COLLEGIATE DICTIONARY 493 (10th ed. 1993)).