Raiford v. May Dep’t Stores - 2 S.W.3d 527 (Tex. App. 1999)

Rule:

The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the court's charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advised the jury of the effect of their answers when it is properly a part of an instruction or definition. 

Facts:

On April 4, 1996, appellants Kristen Raiford (Raiford), Jessica Soria (Soria), and Kamella Namazi (Namazi) entered the Foley's store at West Oaks Mall, and walked directly to the handbag section and selected several purses. Gloria Lopez, a Foley's loss prevention officer, observed the group come in and was suspicious because they were dressed in baggy clothes and kept looking around. She had been instructed to be on the lookout for teenagers dressed in this manner and acting suspiciously. Raiford and Namazi then gathered clothing from other displays, placed it over the purses taken from the purse display, and went to a fitting room. Ms. Lopez observed Raiford and Namazi through louvers in the door which had been installed specifically for loss prevention purposes. There were warning signs on the entrances to the fitting rooms indicating loss prevention personnel might be observing persons in these rooms. Ms. Lopez saw Raiford and Namazi take the paper stuffing out of the handbags, then leave the dressing room and rejoin Soria and her male friend. Raiford, Namazi, and Soria then selected merchandise and went to another fitting room. Ms. Lopez observed the three girls then remove the remaining stuffing from the purses, and put their own personal items in the bags. The three girls then left the store, with Raiford and Namazi carrying the stolen purses. Ms. Lopez and other security personnel stopped the group as they exited the store and escorted them to Foley's loss prevention office. Ms. Lopez then made a "pat-down" search of each of the girls for weapons, drugs, or additional merchandise. During the pat-down search of Raiford, Ms. Lopez noticed that the girl had on two bras, so she lifted Raiford's blouse in the back to view the labels in order to determine if the girl had on Foley's property. While patting down Namazi, Ms. Lopez felt a bulge and asked Namazi to unbutton her pants to determine the source of the bulge. When Namazi unbuttoned her pants, however, they accidentally fell to the floor. Ms. Lopez also asked Soria to unbutton her pants because of a suspicious bulge. Soria then became hostile and began moving around, and Ms. Lopez accidentally grabbed a portion of Soria's underwear. The girls then made written statements. Namazi and Raiford stated they stole the purses. Soria said she did not steal anything but she knew the other two did take something, and that she was sorry. In their lawsuits, the girls contend the searches were "strip searches" and were not reasonable, and the actions of Ms. Lopez constituted false imprisonment, invasion of privacy, assault, and intentional infliction of emotional distress. The court gave jury instructions as to Foley’s right to search and the requirements for finding criminal responsibility for another's conduct. The court found for Foley’s and Lopez, and appeal was made as to the instructions.

Issue:

Did the trial court err in giving instructions to the jury as to Foley’s right to search?

Answer:

No.

Conclusion:

Appellants made no objections at the charge conference to these instructions on the grounds they were a comment on the weight of the evidence. The purpose of Rule 274 is to afford trial courts an opportunity to correct errors in the charge, by requiring objections both to clearly designate the error and to explain the grounds for complaint. An objection that does not meet both requirements is properly overruled and does not preserve error on appeal. Assuming arguendo appellants have not waived error by not properly objecting, there was no merit to their complaint that the trial court added language to the shopkeeper's privilege by further instructing the jury that the right to detain extends to the right to conduct a "contemporaneous search." The definition given by the trial court was: “You are further instructed that this right to detain extends to a right to conduct a contemporaneous search of the person and the objects within that person's control.” This definition was substantially identical to the statement of law construing article 18.16 given in Douglas, 695 S.W.2d at 820. The court found that appellees were entitled to the instruction because they pleaded these affirmative defenses and the defenses were raised by the evidence. Although the instruction might incidentally comment on the evidence, a court's charge was not objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence when it is properly a part of an instruction or definition. It was likewise not the kind of surplus instruction in a standardized charge which is calculated to nudge the jury in favor of one party. Yhe "contemporaneous search" instruction was properly a part of the instructions and was not objectionable as a comment on the weight of the evidence requiring a reversal of the trial court's judgment.