C.L. Carroll v. J.R. Sessions, Jr.

Carroll v. Sessions IN THE TENTH COURT OF APPEALS No. 10-92-008-CV      C. L. CARROLL, ET AL.,                                                                                               Appellants      v.      J. R. SESSIONS, JR.,                                                                                               Appellee From the 87th District Court Freestone County, Texas Trial Court # 91-378-B                                                                                                     O P I N I O N                                                                                                           In this conspiracy action, Carroll alleged that, shortly after he filed a federal civil rights cause of action against Sheriff Sessions in 1988, Sessions entered into an agreement to pay Joe Pool $5000 to murder Carroll. The civil rights case was dismissed by the federal court on December 4, 1989. Carroll filed this suit on October 15, 1990. The court granted Sessions' motion for summary judgment on November 18, 1991. The partial summary judgment was rendered final by an order of severance signed by the trial court on December 9. In a single point of error, Carroll argues that the summary judgment should be reversed because a genuine issue of material fact exists as to whether Sessions and Pool entered into a conspiracy and contract to murder Carroll.       Sessions argues that his affidavit, filed in support of his motion for summary judgment, constitutes uncontroverted testimonial evidence that is clear, positive and direct, otherwise credible and free from contradictions and any inconsistencies, and that could be readily controverted. In his supporting affidavit, Sessions stated: I first learned of the alleged "murder for hire" contract which is claimed by Plaintiff to have been entered into between Joe Poole and myself during a deposition in the 1988 Federal Court litigation. At that time I did not really give the allegation much attention because it was so ridiculous. The next time I was made aware of this alleged murder scheme was when I was served with the above entitled and numbered lawsuit. I unequivocally state that I have never solicited, offered to pay, paid, or otherwise commissioned the killing of anyone, including C. L. Carroll. I never had any discussion with Joe Poole in which the potential murder of C. L. Carroll was contemplated or discussed. I have never, and would never, enter into any arrangement to take a human life and the same would be in contradiction to my sworn duties as a law enforcement officer. No agreement, arrangement or understanding has ever existed by which I solicited or offered anything of value to Joe Poole to murder C. L. Carroll. The alleged "murder for hire" arrangement claimed in the Plaintiff's suit did not occur.       After the hearing on Sessions' motion for summary judgment, the court granted Sessions' motion for leave to file the affidavit of Joe Pool. By affidavit, Pool stated: I hereby state and testify under oath, that I never entered into any agreement with Sheriff Sessions to kill or frighten C. L. Carroll. Sheriff Sessions never solicited me to kill or frighten C. L. Carroll. Sheriff Sessions and I never discussed, planned or considered the murder of, harassment of, or any injury to C. L. Carroll. Sheriff Sessions never paid or agreed to pay me $5,000.00 for any reason. C. L. Carroll made it known to me that he had a grudge against Sheriff Sessions for quite some time. He was always trying to get something on Sheriff Sessions. He tried to get me to make statements as to matters, whether true or not, against Sheriff Sessions in the past. To please C. L. Carroll, and obtain money and other things from C. L. Carroll, I went along with C L. Carroll's desires as long as I was taken care of by C. L. Carroll. There never was and never has been an agreement between Sonny Sessions and myself to in any way harm C. L. Carroll; nor was any such agreement or plan ever discussed or contemplated. Furthermore, I know, and knew at the time, that Sonny Sessions would never enter into such an agreement. No agreement, understanding, solicitation, or other approval for any injury, killing, frightening, or harassment of C. L. Carroll or his family ever existed between Sonny Sessions and myself, and I never discussed any such matter with Sonny Sessions.       The summary judgment rule permits the granting of a summary judgment on the basis of uncontroverted testimonial evidence of an interested witness if that evidence "is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted."       After Carroll filed several affidavits and deposition excerpts as controverting summary judgment evidence, Sessions objected that the controverting portions of the evidence were hearsay and not based on personal knowledge. Because the court sustained Sessions' objections to Carroll's controverting evidence, Sessions' affidavit and Pool's affidavit remain uncontroverted.       Carroll also argues that the testimonial evidence of Sessions and Pool is not "positive and direct." However, after carefully reviewing Sessions' affidavit, we find that it is "clear, positive and direct, otherwise credible and free from contradictions and inconsistencies."       Finally, Carroll argues that the testimonial evidence of Sessions and Pool could not have been "readily controverted" because only Sessions and Pool would have knowledge of an agreement made in secret. However, "could have been readily controverted" does not simply mean that the movant's summary judgment proof could have been easily and conveniently rebutted. Instead, it means that testimony at issue is of a nature that can be effectively countered by opposing evidence. The question of Sessions' intent is not in issue here. Session's motion for summary judgment was based on his denial that any agreement with Pool existed. That question is one involving matters susceptible of objective proof or disproof, such as whether Sessions paid Pool $5000 or whether Pool took any action to carry out the alleged agreement. If Carroll cannot secure such evidence during the discovery process, he is unlikely to produce it at trial. Carroll's single point of error is overruled.       We affirm the summary judgment.                                                                                   BOBBY L. CUMMINGS                                                                                  Justice Before Chief Justice Thomas,           Justice Cummings, and           Justice Vance Affirmed Opinion delivered and filed June 24, 1992 Do not publish "Palatino","serif"'> at 1254-55 (“the possession of the image begins when the image is cached and ends when the file is deleted and overwritten by other data”).[6]            “[T]he Legislature intended in cases like this to make possession of each item of child pornography an ‘allowable unit of prosecution.’” Vineyard v. State, 958 S.W.2d 834, 838 (Tex. Crim. App. 1998); see Witt v. State, 237 S.W.3d 394, 397 (Tex. App.—Waco 2007, pet. ref’d); Roise v. State, 7 S.W.3d 225, 232 (Tex. App.—Austin 1999, pet. ref’d).[7] Thus, Lancaster’s maintaining of possession of the video recording from March 2004 until January 2007 was a single prosecutable offense. Id.  He could not be prosecuted separately for each day, week, month or year he maintained possession of the recording.            The savings clause unambiguously provides that the former statute applies if any element of the offense was committed before September 1, 2005. See Dickens v. State, 981 S.W.2d 186, 188 (Tex. Crim. App. 1998) (addressing similar savings clause). Lancaster acquired the video recording in March 2004, more than a year before the 2005 amendments to section 3.03 took effect. In fact, every element of the offense was committed before September 1, 2005, and thus the former statute applies. See Williams v. State, 71 S.W.3d 862, 864 (Tex. App.—Texarkana 2002), rev’d on other grounds, 114 S.W.3d 920 (Tex. Crim. App. 2003); Harvill v. State, 13 S.W.3d 478, 481 (Tex. App.—Corpus Christi 2000, no pet.).[8] Therefore, the court erred by ordering Lancaster’s sentence under count 17 in trial court cause no. 07-01488-CRF-272 (appellate cause no. 10-08-00025-CR) to run consecutively.            The proper remedy for such error is to modify the judgment to delete the unlawful cumulation order. Beedy v. State, 250 S.W.3d 107, 113-14 (Tex. Crim. App. 2008). In applying this remedy, Lancaster further argues that, because the prior version of section 3.03(b) applies to count 17, it necessarily applies to all counts for which he was convicted. We disagree.            Lancaster first refers to section 3.03 and to the savings clause and observes that both speak with reference to an “offense” as opposed to “offenses.” We initially note that, assuming for the moment that he was not charged with or convicted of count 17, Lancaster does not dispute that the current version of section 3.03 would otherwise apply. Section 3.03(b) permits consecutive sentences if “each sentence is for a conviction of [an offense under section 43.26].” Tex. Pen. Code Ann. § 3.03(b)(3)(A). As the Texarkana Court has explained: The statute does not reflect that the Legislature intended to prevent the State from seeking to have sentences running consecutively if they fell within subsection (b) of the act even if other charges arising from the same criminal episode were also prosecuted as a part of the single criminal action. The purpose of subsection (b) is to allow sentences to run concurrently or consecutively for the types of crimes specifically set out without changing the rule for other crimes that are part of the criminal episode but do not fall within these categories.  Kuhn v. State, 45 S.W.3d 207, 209-10 (Tex. App.—Texarkana 2001, pet. ref’d).            There is nothing that prohibits the State from prosecuting in a single trial offenses arising out of the same criminal episode even if some of the offenses were committed under one version of the law and others were committed under a different version.            Our research has disclosed several cases in which an appellate court approved judgments requiring some, but not all, of a defendant’s sentences to run consecutively where the law permitted cumulation of sentence for only some of the offenses for which the defendant was tried. See Yvanez v. State, 991 S.W.2d 280, 282-83 (Tex. Crim. App. 1999); Garza v. State, 687 S.W.2d 325, 329-30 (Tex. Crim. App. 1985); DeLeon v. State, 294 S.W.3d 742, 746-48 (Tex. App.—Amarillo 2009, pet. ref’d); Kuhn, 45 S.W.3d at 209-10.       Therefore, we will modify the judgment to reflect that Lancaster’s sentence under count 17 does not run consecutively but his other sentences do.[9] We sustain Lancaster’s second point in part.            In light of our disposition of Lancaster’s second issue, we need not address his third point which complains of an ex post facto violation.[10] See Tex. R. App. P. 47.1. We modify the judgments in trial court cause no. 07-01488-CRF-272 (appellate cause no. 10-08-00025-CR) by deleting the unlawful cumulation order in count 17 and modifying the cumulation order in count 18, and we affirm those judgments as modified.  We affirm the remaining judgments.  FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis (Chief Justice Gray concurring and dissenting with note)* Affirmed as modified Opinion delivered and filed May 26, 2010 Publish [CRPM]  *          (Chief Justice Gray would affirm the trial court’s judgments without modification. He does not join any part of the opinion and concurs in the judgment except to the extent that it reduces the sentence by running some concurrent with others, noting that all elements of the offense occurred after the date the statute was modified to allow stacking of the sentences and the date of acquisition is not an element of the offense. A separate opinion will not issue.)  [1]              As with the victim’s status as a 9-year-old in Barajas, “sexual molestation of young children” is not a fact of consequence that tends to prove or disprove Lancaster’s guilt for possession of child pornography, except that the State had to prove that the images in question depicted a child engaging in sexual conduct. See Tex. Pen. Code Ann. § 43.26(a)(1) (Vernon 2003); Barajas v. State, 93 S.W.3d 36, 39 (Tex. Crim. App. 2002).  [2]              Relying on Judge Meyers’s dissent in Barajas, one commentator has observed that “it is now difficult for parties to distinguish between proper and improper commitment questions, because the modified Standefer test now requires that commitment questions lie somewhere between fact-specific and vague.  However, the majority in Barajas never says, with absolute certainty, where the proper medium lies.” Esperanza Guzman, Comment, Standefer v. State: The Creation of the Criminal Defendant’s Diminished Right to a Trial by a Fair and Impartial Jury, 37 St. Mary’s L.J. 477, 507-08 (2006). The question at issue in this case appears situated “where the proper medium lies.” See id.  [3]              Article I, section 10 provides in pertinent part, “In all criminal prosecutions the accused . . . shall have the right of being heard by himself or counsel, or both.” Tex. Const. art. I, § 10. [4]              Section 3.03(a) provides:                 When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced.  Except as provided by Subsection (b), the sentences shall run concurrently.  Section 3.03(a) has remained unchanged since 1995. See Act of May 26, 1995, 74th Leg., R.S., ch. 596, § 1, 1995 Tex. Gen. Laws 597, 597 (current version at Tex. Pen. Code Ann. § 3.03(a) (Vernon Supp. 2009)). [5]                             When a computer user deletes a file, it is not simultaneously removed from her computer.  The physical location on the hard disk where the deleted file resides is marked by the computer as unallocated file space, which allows it to be overwritten.  The file is not actually removed from the computer until another file overwrites it.  While the file is marked for deletion (but not yet overwritten), it exists in unallocated file space.  Forensic software allows an investigator to search and view the contents of the unallocated file space.  Ty E. Howard, Don’t Cache Out Your Case: Prosecuting Child Pornography Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227, 1234 n.22 (2004).  [6]              “Significantly, the time period of possession does not end when a user deletes the image because the image is only marked for deletion—it still physically exists on the computer, albeit in a different format.” Id. at 1255 n.157.  [7]              The “allowable unit of prosecution” is a double jeopardy concept. See Ex parte Hawkins, 6 S.W.3d 554, 556-57 (Tex. Crim. App. 1999).  The Double Jeopardy Clause is offended if a defendant is successively prosecuted for the same offense. The legislature defines whether offenses are the same. It does so by prescribing the “allowable unit of prosecution,” which is “a distinguishable discrete act that is a separate violation of the statute.”  Id. at 556 (quoting Sanabria v. United States, 437 U.S. 54, 69-70 & n.24, 98 S. Ct. 2170, 2181-82 & n.24, 57 L. Ed. 2d 43 (1978)).  [8]              The defendants in Williams and Harvill were convicted of criminal non-support based on their failure to pay child support both before and after the penalty for the offense was changed. See Williams v. State, 71 S.W.3d 862, 864 (Tex. App.—Texarkana 2002), rev’d on other grounds, 114 S.W.3d 920 (Tex. Crim. App. 2003); Harvill v. State, 13 S.W.3d 478, 481 (Tex. App.—Corpus Christi 2000, no pet.). The trial court in both instances applied the new punishment range. See Williams, 71 S.W.3d at 864; Harvill, 13 S.W.3d at 482. Both intermediate courts of appeal found this to be error because an element of the offense in each instance had occurred before the effective date of the statutory amendment. See Williams, 71 S.W.3d at 864-65; Harvill, 13 S.W.3d at 481-82. The Court of Criminal Appeals reversed in Williams because the defendant had stipulated that his offense occurred after the amendment took effect. See Williams v. State, 114 S.W.3d 920, 921-22 (Tex. Crim. App. 2003). [9]              The trial court entered a separate judgment for each of the 100 counts for which Lancaster was convicted. The court ordered his 20 sentences in trial court cause no. 07-01488-CRF-272 (appellate cause no. 10-08-00025-CR) to run sequentially. Thus, his sentence under count 17 was to begin to run after his sentence under count 16 had ceased to operate. Accordingly, we will modify these judgments by: (1) deleting the cumulation order for count 17 so that the sentence under count 17 commences on the date of imposition of sentence, December 13, 2007; and (2) modifying the cumulation order for count 18 so that the sentence under count 18 begins to run after the sentence under count 16 ceases to operate.  [10]            Lancaster generally contends in his third point that the application of the current version of section 3.03(b) to offenses committed before September 1, 2005 constitutes the imposition of an ex post facto law. Although he implies that many of the offenses for which he was convicted occurred before this date, the only offense that he specifically identifies as having occurred before this date is the one under count 17.