IN THE

TENTH COURT OF APPEALS

No. 10-00-010-CR

No. 10-00-410-CR

No. 10-00-411-CR

No. 10-00-412-CR

No. 10-00-413-CR

No. 10-00-414-CR

No. 10-00-415-CR

     JASON LEE DICKINSON,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 66th District Court

Hill County, Texas

Trial Court Nos. 30,285; 30,286;

30,287; 30,291; 30,332; 30,333; 30,334

O P I N I O N

      Jason Lee Dickinson was charged with seven offenses, three offenses of deadly conduct and four offenses of aggravated assault. He pled guilty and received deferred adjudication for six of the offenses and was sentenced to boot camp for one offense. No appeal was taken from those decisions by the trial court. Later, Dickinson was placed on community supervision for the boot camp offense. Four years after his initial plea, Dickinson pled true to violations of his community supervision. He was adjudicated and sentenced in the six deferred offenses and revoked and sentenced in the one boot camp/community supervision offense. He received a total of 60 years in prison. Dickinson now appeals each of those seven sentences. We affirm.

Consecutive Sentences

      On appeal, Dickinson’s only issue is that the trial court improperly ordered his sentences to run consecutively or “stacked.” He contends that the offenses arose out of the same criminal episode and were prosecuted in a single criminal action. Thus, he contends section 3.03 of the Texas Penal Code controls, and the sentences should run concurrently.

      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. . . . [T]he sentences shall run concurrently.

Tex. Pen. Code Ann. § 3.03(a) (Vernon Supp. 2001).

      The crux of the dispute is whether the seven offenses were prosecuted in a single criminal action. A defendant is prosecuted in a “single criminal action” when allegations and evidence of more than one offense arising out of the same criminal episode are presented in a single trial or plea proceeding. Ex parte Pharr, 897 S.W.2d 795, 796 (Tex. Crim. App. 1995); La Porte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992). When deciding what constitutes a single criminal action, we look to the trial itself or to the proceeding where the defendant’s guilt is adjudicated and sentence is pronounced. Rollins v. State, 994 S.W.2d 429, 433 (Tex. App.—Beaumont 1999, no pet.).

      The State relies on McJunkins v. State to argue that Dickinson waived his right to concurrent sentences because he pled guilty and was sentenced in accordance with a plea agreement. See McJunkins v. State, 954 S.W.2d 39, 41 (Tex. Crim. App. 1997). However, the record before us does not indicate the parties ever agreed to a plea bargain. McJunkins does not apply.

      Dickinson argues that in 1995 when he was initially given deferred adjudication and boot camp, all seven causes were called and heard together in an intertwined manner. However, the trial court found guilt and pronounced sentence in only one cause. In that cause, Dickinson was sentenced to ten years in prison and given boot camp. His guilt was not determined at that time on any of the six other offenses. Thus, the prison sentence could not have been stacked with any other sentence at that time. In 1999, when the State requested adjudication on six offenses and revocation on the seventh, it is clear from the record that each cause was pled and heard separately. While each cause was dealt with on the same date, the trial court heard one case at a time. When necessary, the court recessed a case before proceeding with the next case.

Conclusion

      We hold the seven causes were not prosecuted in a single criminal action, and section 3.03 does not apply. The sentences were correctly stacked. Dickinson’s issue is overruled, and the trial court’s judgments are affirmed.

                                                             TOM GRAY

                                                             Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed July 18, 2001

Do not publish

False Imprisonment

The County argues that DeRouens false imprisonment claim falls within the intentional-tort exception to the waiver of sovereign immunity, which provides that the Tort Claims Act does not apply to claims arising out of assault, battery, false imprisonment, or any other intentional tort. Tex. Civ. Prac. & Rem. Code Ann. 101.057(2) (Vernon 2005); see State Dept of Pub. Safety v. Petta, 44 S.W.3d 575, 580-81 (Tex. 2001); see also Delaney v. Univ. of Houston, 835 S.W.2d 56, 59 (Tex. 1992); Watson v. Dallas Indep. Sch. Dist., 135 S.W.3d 208, 220 (Tex. App.Waco 2004, no pet.). DeRouens false/unlawful imprisonment claim falls squarely within this exception. See Tex. Civ. Prac. & Rem. Code Ann. 101.057(2); see also Morris v. Copeland, 944 S.W.2d 696, 697, 698-99 (Tex. App.Corpus Christi 1997, no writ) (sovereign immunity barred claims for false imprisonment, false arrest, and others). The trial court properly granted the Countys plea to the jurisdiction as to DeRouens false imprisonment claim.

Use of Tangible Personal Property

DeRouen contends that she was handcuffed too tightly, causing her to suffer injury and constituting misuse of tangible personal property. To the extent that she alleges intentional misuse of the handcuffs, such as through excessive use of force or an assault, DeRouens suit is barred by section 101.057. See Tex. Civ. Prac. & Rem. Code Ann. 101.057(2). However, DeRouen further alleges that the officers conduct was negligent. She alleges that she suffered injury, not that the officer intended to injure her. See Durbin v. City of Winnsboro, 135 S.W.3d 317, 324-25 (Tex. App.Texarkana 2004, pet. denied). Intent to injure cannot necessarily be inferred from the act of improperly handcuffing DeRouen. See id. at 325. By alleging that she suffered injury as a result of the officers negligent use of the handcuffs, DeRouen pleaded a cause of action for use of tangible personal property under the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code 101.021(2); see also Harrison v. Texas Dept of Criminal Justice-Institutional Div., 915 S.W.2d 882, 889-90 (Tex. App.Houston [1st Dist.] 1995, no writ) (inmates allegation that he suffered injuries when TDCJ employeesnegligently restrained him utilizing security devices stated a claim against the TDCJ under the Tort Claims Act).

Because the trial court possessed subject matter jurisdiction over DeRouens claim regarding negligent use of tangible personal property, it erred by granting the Countys plea to the jurisdiction as to this claim.

SUMMARY JUDGMENT

In its no-evidence motion for summary judgment, the County argued that it could not be liable for a section 1983 claim because DeRouen failed to present any evidence of harm caused by a policy or custom of the County. DeRouen argues that her affidavit was sufficient to withstand summary judgment and that the trial court erred by determining that she failed to present evidence of a policy or custom.

Standard of Review

A no-evidence summary judgment is reviewed under the same standard as a directed verdict. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id. at 582. A no-evidence summary judgment will be defeated if the non-movant produces some evidence raising an issue of material fact on the elements challenged by the movant. Id.

Analysis

Section 1983 offers no respondeat superior liability. Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002), cert. denied, 537 U.S. 1110, 123 S. Ct. 892, 154 L. Ed. 2d 782 (2003). Municipalities face 1983 liability when execution of a governments policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury. Id. (quoting Monell v. Dept of Social Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037, 56 L. Ed. 2d 611 (1978)). Proof of municipal liability sufficient to satisfy Monell requires: (1) an official policy (or custom), of which (2) a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose moving force is that policy (or custom). Id.

DeRouen presented no evidence of a policy or custom, either in her affidavit or by any other means. The record contains no documents or testimony establishing a custom or policy regarding use of force, similar incidents of force, or a routine use of force. See Hallmark v. City of Fredericksburg, 94 S.W.3d 703, 708 (Tex. App.San Antonio 2002, pet. denied). Because DeRouen failed to present any evidence that her constitutional rights were violated as the result of a custom or policy of the County, the trial court properly granted the Countys no-evidence motion for summary judgment on DeRouens section 1983 claim. See Tex. R. Civ. P. 166a(i); see also Pineda, 291 F.3d at 328.

CONCLUSION

Because the trial court erred by granting the Countys plea to the jurisdiction as to DeRouens claim for negligent use of tangible personal property, we reverse the judgment as to that claim and remand this cause to the trial court for further proceedings consistent with this opinion. We affirm the judgment in all other respects.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring and dissenting with a note)*

Affirmed in part; reversed and remanded in part

Opinion delivered and filed July 23, 2008

[CV06]

* (Chief Justice Gray concurs in the judgment to the extent that it affirms the trial courts judgment and dissents to the judgment of this Court to the extent that it does not affirm the trial courts judgment. A separate opinion will not issue.)