Amber Dawn Carreon v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00197-CR ______________________________ AMBER CARREON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 5th Judicial District Court Bowie County, Texas Trial Court No. 01-F0150-005 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION Amber Carreon appeals the trial court's judgment revoking her community supervision and sentencing her to two years' confinement in a state jail facility. In her first issue on appeal, Carreon contends the evidence is insufficient to support the trial court's finding that she violated her community supervision. Next, she asks us to find that her punishment is disproportionate to the gravity of her violation of the community supervision agreement. We affirm the judgment. Procedural Background On July 8, 2002, Carreon pled guilty to delivering methamphetamine in the amount of less than one gram. See Tex. Health & Safety Code Ann. § 481.112(a) (Vernon 2003). That offense is a state jail felony. Tex. Health & Safety Code Ann. § 481.112(b) (Vernon 2003). Pursuant to a plea agreement, the trial court found the evidence substantiated Carreon's guilt, but deferred a finding of guilt and placed her on community supervision for a period of five years. Several months later, Carreon admitted violating her conditions of community supervision. In response, the trial court adjudicated Carreon's guilt April 11, 2003, and sentenced her to a term of imprisonment. The trial court, however, suspended imposition of that sentence for a period of five years and continued her on community supervision with the condition that she spend thirty days in jail (with credit for time she had served pending the adjudication hearing). On May 7, 2003, the State filed a motion to have Carreon's community supervision revoked because she had allegedly failed to report to her supervision officer on four occasions. After an August 21 hearing, the trial court found Carreon had violated the conditions of her community supervision, revoked her community supervision, and sentenced her to two years' confinement in a state jail facility. Evidentiary Sufficiency In her first point of error, Carreon contends the evidence is legally insufficient to support the trial court's finding that she violated the terms of her community supervision. "At a hearing on an application to revoke [community supervision], guilt or innocence is not at issue, and the trial court need not determine the defendant's original criminal culpability, only whether the [defendant] broke the contract made with the trial court to receive [community supervision]." Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet. ref'd). Revocation is proper if the evidence is sufficient to support the trial court's finding that the defendant violated the terms of the community supervision agreement with the trial court. Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977); Pierce, 113 S.W.3d at 436–37. We review a trial court's decision to revoke community supervision under an abuse of discretion standard and examine the evidence in the light most favorable to the trial court's order. Pierce, 113 S.W.3d at 436. A trial court does not abuse its discretion to revoke a defendant's community supervision if the State presents sufficient evidence that the defendant violated at least one term of the community supervision agreement as alleged in the State's motion to revoke. Id. "If the greater weight of credible evidence creates a reasonable belief a defendant has violated a condition of his or her [community supervision], the trial court's order of revocation did not abuse its discretion and must be upheld." Id. (citing Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)). The trial court is the sole judge of credibility of the witnesses and the weight to be given to witness testimony. In re B.J., 100 S.W.3d 448, 453 (Tex. App.—Texarkana 2003, no pet.). In this case, the trial court found Carreon had not reported to her supervision officer April 4, 10, 15, and 25, 2003, as required by the terms of her community supervision. Carreon testified at the hearing she did not report April 4 because she thought she was told she did not have to report until Monday, April 7. Carreon also told the trial court she did not report April 10 and 15 because she was ill. According to Carreon's testimony, she did not report April 25 because she was bonding a friend out of jail, but she had attempted several times on that date to call and inform her supervision officer of the reason she would not be reporting on that date. Jerry Funderburk, the Bowie County supervision officer who supervised Carreon's community supervision, testified that on several occasions he instructed Carreon to report every day to Bowie County's "Day Reporting Center." According to Funderburk, however, Carreon failed to report April 10 and April 25. Carreon provided a doctor's excuse for not reporting on the 10th. On the 25th, however, Carreon went to bail a friend out of jail instead of reporting. Viewing the evidence in the light most favorable to the trial court's verdict, the great weight of credible evidence shows Carreon failed to report to her supervision officer April 25, 2003, as alleged in the State's motion to revoke. Her supervision officer testified she failed to report to the community supervision department April 25. Carreon admitted she did not report to Bowie County's Day Reporting Center April 25, 2003. And, in hindsight, Carreon acknowledged she exercised poor judgment in deciding to miss the appointment with her supervision officer to instead go bail a friend out of jail. Therefore, we cannot say the trial court abused its discretion by finding Carreon had violated the conditions of her community supervision agreement on at least one occasion. We overrule Carreon's first point of error. Disproportionate Sentence In her second point of error, Carreon contends the trial court's sentence constitutes a disproportionate punishment, considering the minor nature in which she violated her community supervision agreement. Carreon was convicted of a state jail felony offense, the punishment range for which is not less than 180 days nor more than two years' confinement in a state jail facility. See Tex. Pen. Code Ann. § 12.35(a) (Vernon 2003). The trial court sentenced Carreon to two years' confinement. Traditionally, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, Texas appellate courts have held that a defendant's punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). But in Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.—Texarkana 1999, no pet.), we recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App.—Texarkana 2002, pet. ref'd); Latham v. State, 20 S.W.3d 63, 68–69 (Tex. App.—Texarkana 2000, pet. ref'd). Our proportionality analysis under both the Eighth Amendment to the United States Constitution and Article I, Section 13 of the Texas Constitution is guided by (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Alberto v. State, 100 S.W.3d 528, 530 (Tex. App.—Texarkana 2003, no pet.) (referencing Solem v. Helm, 463 U.S. 277, 292 (1983); and Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref'd)). If we first find that the trial court imposed a sentence that is grossly disproportionate to the offense, then (and only then) will we consider the remaining factors of the Solem test and compare the sentence received to either sentences for similar crimes in the same jurisdiction or to sentences for the same crime in other jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664–65 (Tex. App.—Texarkana 1995, pet. ref'd). In the case now before us, Carreon did not present this issue to the trial court. As such, she did not preserve this issue for our review. See Tex. R. App. P. 33.1(a); Alberto, 100 S.W.3d at 529. Moreover, even had Carreon preserved this issue for our review, the record contains no evidence for us to use in comparing the sentence imposed with sentences of other persons in Texas or in other jurisdictions who committed a similar offense yet violated their community supervision in allegedly minor ways. See Alberto, 100 S.W.3d at 530. Conclusion For the reasons stated, we affirm the trial court's judgment. Donald R. Ross Justice Date Submitted: May 19, 2004 Date Decided: May 25, 2004 Do Not Publish y v. City of Tyler, 836 S.W.2d 337, 341 (Tex. App.—Tyler 1992, writ denied) (cause of action for temporary injury to land accrues on each actionable injury). The right to sue for the injury is a personal right belonging to the person owning the property at the time of the injury. Abbott v. City of Princeton, 721 S.W.2d 872, 875 (Tex. App.—Dallas 1986, writ ref'd n.r.e.); Lay v. Aetna Ins. Co., 599 S.W.2d 684, 686 (Tex. Civ. App.—Austin 1980, writ ref'd n.r.e.). Therefore, without express provision, the right does not pass to a subsequent purchaser of the property. Abbott, 721 S.W.2d at 875; Lay, 599 S.W.2d at 686. A mere subsequent purchaser cannot recover for an injury committed before his or her purchase. Lay, 599 S.W.2d at 686. Citgo relies on Senn v. Texaco, Inc., 55 S.W.3d 222 (Tex. App.—Eastland 2001, pet. denied), and Exxon Corp. v. Pluff, 94 S.W.3d 22 (Tex. App.—Tyler 2002, pet. denied). Both the Senn and Pluff cases are very similar to the case at hand, and both held that the cause of action for injuries to property belongs to the owner of the property at the time of the alleged injuries and that subsequent purchasers lack standing to sue, absent an express provision in the deed granting them that power. In Senn, 55 S.W.3d at 224, several oil and gas producers operated on property known as the "Covered 'S' Ranch" and allegedly caused permanent and temporary injuries to the ranch by contaminating the aquifer underlying the land. The Senns purchased the property in 1997, but all drilling and production activities of the defendant producers had ceased before the Senns' purchase. Id. at 224-25. The defendant producers relied on the well-established rule in Texas that: Where injury to land results from a thing that the law regards as a permanent nuisance, the right of action for all the damages resulting from the injury accrues to the owner of the land at the time the thing that causes the injury commences to affect the land. Senn, 55 S.W.3d at 225 (quoting Vann v. Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561, 562 (1936)). Based on this long-standing principle, the court found the Senns lacked standing to bring suit for any type of injury to the land that occurred before their purchase. Senn, 55 S.W.3d at 226. The court noted that, while the rule in Vann may seem harsh as applied to the Senns, the Senns could have avoided its application by bargaining for an assignment of the prior owner's possible causes of action for injuries to the land that occurred before the purchase, or insisted that the grantor sellers give them warranties about the condition of the land in the deed. Id. In addition, the Senns could have performed a better inspection of the land, where it was apparent from the lack of warranties about the condition of the land and the long-standing production of oil and gas from the land, that such an inspection was needed. Id. In Pluff, 94 S.W.3d at 26, a landowner sued Exxon based on the oil company's failure to remove all of the oilfield materials used in drilling and operation of oil wells on his property. Exxon's drilling and production activities on the property ceased before Pluff's purchase of the land in 1992, and all of the oilfield materials were on the property on the date of Pluff's purchase. Id. at 27. The Tyler Court of Appeals found that standing is a threshold issue, and the proper inquiry is whether the plaintiff has a "cause of action, which involves the combination of a right on the part of the plaintiff and a violation of such right by defendant." Id. at 28 (quoting Nobles, 533 S.W.2d at 927). The court found the subsequent landowner had no cause of action, and therefore lacked standing, because they showed no injury that occurred during their ownership of the land. Pluff, 94 S.W.3d at 28. In summarizing the Senn holding, the Pluff court found that, "in determining standing, the characterization of the injury [is] not important; it [is] the fact of injury that [is] critical." Id. The court concluded the undisputed evidence "showed a continuing condition that already existed on the date of purchase," and "[w]ithout a new injury that occurred after they purchased the property or an assignment of a cause of action for the prior injury, the [plaintiff] had not been aggrieved and therefore had no standing." Id. In this case, it is uncontroverted that Citgo sold the Donaldson Lateral pipeline to EOTT before the Denmans purchased the property and that, since the sale, Citgo has not conducted any operations on the Denman property. Citgo provided the affidavit testimony of Clyde Stone, a Citgo Petroleum Corporation employee, who stated that, on January 27, 1997, Citgo sold the Donaldson Lateral pipeline to EOTT Energy Pipeline and that, since the date of that sale, "Citgo Pipeline Company has not conducted any other operations on the property . . . ." Rule 166a(c) of the Rules of Civil Procedure states that a summary judgment may be based on "uncontroverted testimonial evidence of an interested witness . . . if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." Tex. R. Civ. P. 166a(c). Ongoing Operations The Denmans did not controvert that Citgo sold the Donaldson Lateral pipeline to EOTT before their purchase of the land, but instead contend Citgo owned a second pipeline on the right-of-way in question and therefore have ongoing operations on the property. Rule 166a(c) of the Rules of Civil Procedure provides that "[e]xcept on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response." Tex. R. Civ. P. 166a(c). As the rule makes clear, the court has discretion to accept late-filed evidence. Beavers v. Goose Creek Consol. Ind. Sch. Dist., 884 S.W.2d 932, 935 (Tex. App.—Waco 1994, writ denied). In the Denmans' timely response to the motion for summary judgment, they produced pictures purported by affidavit to be a "pipeline above land surface on Denman property" and Citgo signs warning of a pipeline. The trial court granted Citgo's motion for summary judgment March 22, 2002. The Denmans filed a motion for reconsideration of the order granting Citgo's motion for summary judgment June 21, 2002, and included several more photographs purported by affidavit to be "depicting the CITGO/EOTT Right of Way, a surface pipeline wrapped with asbestos and/or the surface pipeline in close proximity or crossing the four inch Donaldson Lateral pipeline." There is no indication in the record before us the trial court considered the late-filed affidavit attached to the motion for reconsideration. The court expressly denied the motion for reconsideration. Therefore, the affidavit and photographs allegedly depicting a second pipeline on the right-of-way in question is not summary judgment evidence and we will not consider it. The affidavit testimony and photographs attached to the original response to the motion for summary judgment do not establish ongoing operations by Citgo or the ownership of a second pipeline on the right-of-way. The photographs allegedly show a "pipeline above land surface on Denman property." They do not purport to depict a second pipeline on the right-of-way in question, and in light of the numerous other oil and gas rights-of-way and pipelines on the Denman property, there is no reasonable inference the photographs are of a second pipeline on the right-of-way. In their original response to the motion for summary judgment, the Denmans also produced pictures of Citgo signs on the property, warning of petroleum pipelines. The presence of Citgo signs, which were subsequently changed to EOTT signs, does not address whether Citgo continued to own a second pipeline, or whether it was continuing to operate on the property. Citgo produced summary judgment evidence it sold the Donaldson Lateral pipeline and ceased all operations on the property before the Denmans purchased it. The Denmans produced no evidence to controvert that. We conclude that Senn and Pluff are controlling and that, like the landowners in those cases, the Denmans lack standing to sue because any injury to their property occurred before they purchased it and their deed contains no assignment of any cause of action. Temporary or Permanent Injury The Denmans attempt to distinguish Senn and Pluff by asserting that the injury to their property is temporary in nature and that their cause of action accrues anew each day the action is not desisted. While it is questionable whether the injuries they allege are temporary, this argument was directly rejected in Senn. The Eastland Court of Appeals regarded the distinction between temporary and permanent injuries as meaningless with respect to the issue of standing. Senn, 55 S.W.3d at 226. The court found that "[a]ny injury to the land that the defendants might have caused, whether temporary or permanent, occurred prior to the Senns' purchase of the land," and the Senns, therefore, did not own any causes of action for either type of injury that may have been caused by the defendants. Id. The court in Pluff, 94 S.W.3d at 28, as discussed above, analyzed the distinction between permanent and temporary injuries and also determined that the characterization of the injury is not important to the inquiry on standing. Statutory Violations The Denmans also contend Citgo violated Railroad Commission regulations and the Texas Litter Abatement Act, and that such statutory violations provide them standing to bring suit. The Denmans did not allege any causes of action for violation of any Railroad Commission regulations, and such violations therefore cannot provide them standing to sue. The Denmans alleged violations of the Texas Litter Abatement Act only in their second amended petition, filed after the trial court granted Citgo's motion for summary judgment. Rule 166a, Texas Rules of Civil Procedure, provides that a summary judgment shall be rendered on the "pleadings . . . on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, . . . ." Tex. R. Civ. P. 166a(c); see also Automaker, Inc. v. C.C.R.T. Co., 976 S.W.2d 744, 745 (Tex. App.—Houston [1st Dist.] 1998, no pet.); Taylor v. Sunbelt Mgmt., Inc., 905 S.W.2d 743, 745 (Tex. App.—Houston [14th Dist.] 1995, no writ). Nonmovants must secure the court's permission to file an amended pleading after the hearing. Tex. R. Civ. P. 166a(c); see also Automaker, Inc., 976 S.W.2d at 745. A trial court cannot grant a motion to amend the pleadings once the court renders judgment. Automaker, Inc., 976 S.W.2d at 746. Here, the Denmans filed their second amended petition after the trial court granted Citgo's motion for summary judgment. The alleged violations of the Texas Litter Abatement Act, therefore, were not on file at the time of the summary judgment hearing and were not filed thereafter "before judgment with permission of the court." We will not consider them. We affirm the judgment. Donald R. Ross Justice Date Submitted: November 12, 2003 Date Decided: December 8, 2003