Paul J. Lamarre v. State ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-11-00618-CR
Paul J. LAMARRE,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2010CR5980
Honorable Maria Teresa Herr, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: March 1, 2013
AFFIRMED AS MODIFIED
A jury found appellant Paul J. Lamarre guilty on 22 counts of possession of child
pornography. The trial court sentenced appellant to ten years confinement on each count. 1 On
appeal, Lamarre complains the trial court erred in: (1) denying his motion to suppress; and (2)
admitting “extraneous victim impact testimony” from two witnesses during the punishment
phase of the trial. The State raises a single cross-point asking this court to reform the judgments
1
The State has raised a cross-point regarding whether the sentences are to run consecutively or concurrently. We
shall address this issue below.
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because the written judgments do not conform with the trial court’s oral pronouncement of
sentence. We affirm the trial court’s judgments as modified.
BACKGROUND
In October 2007, Special Agent Carla Schreiber of the FBI Cyber-Crimes Unit in San
Antonio received information from the FBI in Newark, New Jersey about an email account
registered to Paul Lamarre of San Antonio, Texas. According to the FBI, Lamarre’s email
account contained seven or eight child pornography images.
Based on the information she received from her counterparts in New Jersey, Special
Agent Schreiber attempted to locate Lamarre by enlisting the help of a local law enforcement
task force. The special agent was ultimately assisted by Bexar County Sheriff’s Deputy Shawn
Tobleman, who was assigned to the local task force known as the “Innocent Images Unit,” a unit
that works with the FBI Cyber-Crimes Unit. This unit investigates child pornography and crimes
against children on the Internet. Ultimately, it was discovered that Lamarre was living at the
home of Michael Zureich.
The special agent went to Zureich’s home to speak to Lamarre, who denied any
knowledge of the email account. Special Agent Schreiber asked to search the computers in the
home. Lamarre consented to the search, but explained he did not have a computer and was using
one that belonged to Zureich. There was no child pornography found on the computer belonging
to Zureich. On July 1, 2009, after additional evidence regarding Lamarre failed to surface,
Special Agent Schreiber terminated her investigation. However, Deputy Tobleman continued to
monitor Lamarre and his whereabouts.
On September 4, 2009, Juliette Sanders placed a call to the FBI complaint desk. Sanders
advised she was concerned about her roommate, who she identified as Lamarre. Sanders
believed Lamarre was viewing child pornography on his computer. The agent–on–duty ran a
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background check on Lamarre and discovered an outstanding arrest warrant for a child support
issue. The agent informed the San Antonio Police Department, which sent a marked car to
Sanders’s residence. The San Antonio police arrested Lamarre based on the outstanding child
support warrant.
Special Agent Schreiber and Deputy Tobleman learned about Sanders’s complaint. The
day Lamarre was arrested, Special Agent Schreiber and Deputy Tobleman interviewed Sanders
and her minor son at the Sanders home. Sanders told the investigators she believed Lamarre was
viewing child pornography on his computer. Sanders reported that on several occasions Lamarre
viewed a sexually explicit photo of her son’s girlfriend on her son’s cell phone. She also
informed the investigators that when she went to the community pool with Lamarre, he spent his
time looking at young girls, who appeared to be twelve-years-old and under. Sanders went on to
say that when she and Lamarre went to a friend’s party, Lamarre spent his time with the children
rather than the adults, carrying one of the little girls on his shoulder.
Sanders’s son was fourteen-years-old when Lamarre moved in with them. The son told
Special Agent Schreiber that Lamarre showed him a pornographic video on Lamarre’s computer.
According to the son, the video depicted three adult men having sexual intercourse with an
underage girl. The son also told Special Agent Schreiber that Lamarre said they ought to get the
son’s fourteen–year–old girlfriend drunk and “tag team” her.
Immediately after the interview, Deputy Tobleman began the process to obtain a search
warrant for Lamarre’s computer. However, before he obtained the search warrant, Deputy
Tobleman seized Lamarre’s computer “for safe keeping.” On September 17, 2009, Deputy
Tobleman prepared and filed the affidavit to obtain the search warrant, which was issued the
same day. Thereafter, Deputy Tobleman searched Lamarre’s hard drive and found twenty-two
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videos containing child pornography. Ultimately, Lamarre was charged with possession of child
pornography. After a jury trial, he was found guilty. Lamarre then perfected this appeal.
ANALYSIS
In his first point of error, Lamarre contends the trial court erred in denying his motion to
suppress. In his second and third points of error, Lamarre complains about the admission of
certain testimony during the punishment phase of the trial. The State raises a cross-point relating
to an alleged conflict between the trial court’s oral pronouncement of sentence and the written
judgments. We shall address each issue in turn.
Motion to Suppress
Lamarre argues the trial court erred in denying his motion to suppress because: (1) his
computer was seized without a warrant; and (2) the affidavit supporting the warrant “contained
statements that were deliberate falsehoods or made in reckless disregard of the truth.” We shall
discuss each complaint separately.
Standard of Review
We review a trial court’s ruling on a motion to suppress evidence for abuse of discretion
using a bifurcated standard. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010);
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We give almost total deference
to a trial court’s determination of facts and review the trial court’s application of the law de
novo. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997). A trial court’s application of the law to the facts is
affirmed if the ruling is “reasonably supported by the record and is correct on any theory of law
applicable to the case.” Valtierra, 310 S.W.3d at 447–48. Furthermore, when the trial court
does not issue findings of fact and none are requested, as in this case, we imply findings that
support the trial court’s ruling if the evidence, when viewed in the light most favorable to the
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ruling, supports those findings. Id; Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App.
2006). The trial court is the sole judge of the credibility of the witnesses and their testimony.
Maxwell, 73 S.W.3d at 281.
Warrantless Seizure of Computer
Lamarre first contends the trial court erred in denying his motion to suppress because the
warrantless seizure of his computer on September 4, 2009, was unreasonable and violated his
rights under the Fourth Amendment. We disagree.
When a police officer is in a place where he is lawfully entitled to be, he may seize,
without a warrant, anything he has probable cause to believe constitutes contraband. State v.
Dobbs, 323 S.W.3d 184, 187 (Tex. Crim. App. 2010) (citing Texas v. Brown, 460 U.S. 730, 738
(1983) (plurality opinion); Arizona v. Hicks, 480 U.S. 321, 326–27 (1987)). Probable cause
exists when reasonably trustworthy facts and circumstances within the knowledge of the officer
on the scene would lead a man of reasonable prudence to believe the item to be seized is
contraband. Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006).
In this case, when Deputy Tobleman questioned Sanders and her minor son at Sanders’s
home, Sanders told him she believed Lamarre was viewing child pornography on his computer.
The deputy specifically testified that Sanders “reported that there was child pornography on the
computer.” Sanders’s minor son also told the deputy that Lamarre showed him a pornographic
video on Lamarre’s computer. According to the son, the video depicted three adult men having
sexual intercourse with an underage girl. The deputy questioned the minor son, asking him if he
was sure the female on the video was under the age of eighteen, and the son stated he was sure.
Deputy Tobleman testified Lamarre’s computer was “sitting on a table in the open area of
the living room.” The deputy also testified he knew Lamarre had been taken into police custody
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on a child support warrant, but did not know when Lamarre would get out of jail. The deputy
stated he seized the computer “for safe keeping.”
Thus, Deputy Tobleman, who was legitimately in the Sanders home, had probable cause
to believe that Lamarre’s computer constituted contraband, given the statements by Sanders and
her minor son. It is not necessary that the item seized be instantly recognizable as contraband;
rather, the viewing officer merely needs probable cause to believe the item in plain view is
contraband before he seizes it. Dobbs, 323 S.W.3d at 188. “So long as the probable cause to
believe that items in plain view constitute contraband arises while the police are still lawfully on
the premises, and their ‘further investigation’ into the nature of those items does not entail an
additional and unjustified search of . . . or presence on . . . the premises, [there is] no basis to
declare a Fourth Amendment violation.” Id. at 189. Here, there was no additional search of the
premises, i.e., the Sanders home, and the subsequent search of the computer was conducted
pursuant to a warrant.
The trial court was entitled to believe the deputy’s testimony about what Sanders and her
son told him. See Maxwell, 73 S.W.3d at 281. The court was also entitled to believe the
computer was in plain view in the living room. See id. Because the deputy was in a place where
he was legally entitled to be, and because the trial court could have determined the deputy had
probable cause to believe the computer, which was in plain view, was contraband, we hold the
trial court did not abuse its discretion in overruling the motion to suppress.
Affidavit Supporting Warrant
Lamarre next contends the trial court erred in denying his motion to suppress because
Deputy Tobleman’s affidavit, which supported the search warrant for the computer, contained
deliberate falsehoods or statements made in reckless disregard of the truth. Lamarre challenges
the following statements in the affidavit:
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During the FBI investigation they identified the email address [ ]. The email
address was identified on a seized computer in Newark, N.J. as the email address
used to send email to the seized computer. A subject utilizing the email address
engaged in the distribution of 7 images. These images are in violation of the
Texas Penal code section 43.26, in that they display unclothed girls under the age
of 17, and the children are performing oral sex on male subjects in the images.
Lamarre contends this portion of the affidavit contains material misrepresentations of the
facts because the deputy failed to advise the court in the affidavit that the investigation that
uncovered this information occurred two years before; that during the investigation Lamarre’s
computer was scanned and no pornographic images were found and that the FBI had closed the
case. Lamarre contends the omitted information amounted to misstatements of fact made
intentionally or with reckless disregard to the truth.
Lamarre also contests the portion of the deputy’s affidavit, which states:
[I]t is the belief of affiant that in the suspected place there will be found items
constituting contraband, and the instruments in the commission of a crime under
the Texas Penal Code, to wit: § 43.26. Possession of Promotion of Child
Pornography; in violation of the laws of Texas. Such items will consist of the
following:
5. Computers . . . .
6. Computers, personal computers, computer systems, central processing units,
computer peripherals . . . .
7. Electronic communications stored in computers . . .
The affidavit concludes by requesting a search warrant that would authorize a search of
Sanders’s home “for said personal property and seizure of the same (including the computer
hardware housing it).” Lamarre contends the deputy failed to advise the court that the computer
had already been seized for “safe keeping” on September 4, 2009, thirteen days before the
affidavit was executed. Lamarre further contends the items listed in the warrant were not at the
location stated in the warrant and the deputy knew this because he has already seized the items
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“for safe keeping.” Given that the items had already been seized, and this was known to Deputy
Tobleman, Lamarre contends these statements were deliberate falsehoods or at a minimum, made
in reckless disregard of the truth.
Lamarre argues that if these “falsehoods” or statements “made in reckless disregard of
the truth” are removed from the affidavit, the affidavit is insufficient to support a finding of
probable cause. Therefore, the trial court erred in denying his motion to suppress. Again, we
disagree.
Under Franks v. Delaware, a defendant may challenge the truth of an affidavit used to
obtain a search warrant only if he “makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the truth, was included by
the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding
of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s
request.” 438 U.S. 154, 155–56 (1978); see Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App.
2007). “In the event that at that hearing the allegation of perjury or reckless disregard is
established by the defendant by a preponderance of the evidence, and, with the affidavit’s false
material set to one side, the affidavit’s remaining content is insufficient to establish probable
cause, the search warrant must be voided and the fruits of the search excluded to the same extent
as if probable cause was lacking on the face of the affidavit.” Franks, 438 U.S. at 156. The
Texas Court of Criminal Appeals made it clear that to be entitled to a Franks hearing a defendant
must:
(1) allege deliberate falsehood or reckless disregard for the truth by the affiant,
specifically pointing out the portion of the affidavit claimed to be false;
(2) accompany these allegations with an offer of proof stating the supporting
reasons; and
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(3) show that when the portion of the affidavit alleged to be false is excised from
the affidavit, the remaining content is insufficient to support issuance of the
warrant.
Harris, 227 S.W.3d at 83 (citing Cates v. State, 120 S.W.3d 352, 356 (Tex. Crim. App. 2003),
(quoting Ramsey v. State, 579 S.W.2d 920, 922–23 (Tex. Crim. App. 1979)). In other words, an
attack on the truth of an affidavit supporting a search warrant “must be more than conclusory and
must be supported by more than a mere desire to cross-examine.” Harris, 227 S.W.3d at 85
(quoting Franks, 438 U.S. at 171). The Texas Court of Criminal Appeals has not recognized that
a Franks analysis pertains to omissions as well as false statements. See Brooks v. State, 642
S.W.2d 791, 796–97 (Tex. Crim. App. [Panel Op.] 1982). However, the Fifth Circuit, along with
other Texas appellate courts, has concluded that allegations of material omissions are to be
treated the same as claims of material misstatements. See United States v. Martin, 615 F.2d 318,
328 (5th Cir. 1980); Blake v. State, 125 S.W.3d 717, 724 (Tex. App.—Houston [1st Dist.] 2003,
no pet.); Heitman v. State, 789 S.W.2d 607, 610–11 (Tex. App.—Dallas 1990, pet. ref’d); Melton
v. State, 750 S.W.2d 281, 284 (Tex. App.—Houston [1st Dist.] 1988, no pet.). Accordingly, we
will apply the Franks analysis to Lamarre’s allegations.
Apparently having determined that Lamarre made the initial showing required by Franks
and Harris, the trial court held a hearing on the motion to suppress during the trial, out of the
presence of the jury. During the hearing, Lamarre argued there was no probable cause to issue
the warrant based on the four corners of the affidavit. Lamarre’s trial counsel contended that
falsehoods and material misrepresentations of the facts were made concerning the initial email
that brought Lamarre to the attention of law enforcement. Specifically, the affidavit omitted the
information that the FBI’s investigation of the initial emails was conducted two years before the
affidavit was executed, that the FBI scan of the computer during the initial investigation found
no child pornography, and that the FBI had in fact closed its case. Deputy Tobleman also failed
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to state in the affidavit that the computer in question was already in police custody, having been
seized without a warrant “for safe keeping” thirteen days before the affidavit was completed and
the warrant was issued. Therefore, according to Lamarre, the warrant was based on false
statements or statements made in reckless disregard of facts known to Deputy Tobleman, the
affiant.
The trial court, however, after listening to the evidence and the arguments of counsel,
determined that the omissions and statements complained of by Lamarre—the closed
investigation, the prior seizure of the computer—did not amount to deliberate misrepresentations
or statements made in reckless disregard for the truth. Moreover, the trial court determined that
even if the information concerning the initial investigation was removed, additional information
in the affidavit, specifically the information obtained from Sanders and her son, was sufficient to
establish probable cause for the warrant.
Having reviewed the record, we hold the trial court did not abuse its discretion in finding
Lamarre failed to establish by a preponderance of the evidence that the deputy’s alleged
misstatements and omissions were intentional or made with reckless disregard. We further hold
that it was not an abuse of discretion for the court to determine the alleged misstatements and
omissions amounted to nothing more than negligence on the part of Deputy Tobleman.
“Allegations of negligence or innocent mistake are insufficient” to warrant striking portions of
an affidavit. Franks, 438 U.S. at 173. As recognized by the court of criminal appeals, “a
misstatement in an affidavit that is merely the result of simple negligence or inadvertence, as
opposed to reckless disregard for the truth,” will not render a warrant invalid.” Dancy v. State,
728 S.W.2d 772, 783 (Tex. Crim. App. 1987).
We also hold the trial court did not err in determining that excluding the portions of the
affidavit complained of would not render the affidavit, when read as a whole, insufficient to
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establish probable cause. Deputy Tobleman’s affidavit stated Lamarre rented a room in
Sanders’s home, and her minor child told authorities that Lamarre showed him a pornographic
video on Lamarre’s computer that contained “two guys, they were like swarming—swarming
around this girl and they were like man-handing her a little bit. And then they started like rough-
housing, and then they started having hard-core sex.” Sanders’s son went on to confirm the girl
in the video was a minor. The son further testified he was shown this video on Lamarre’s
computer while in the Sanders’s residence. Based on these statements, we conclude that after
drawing reasonable inferences and considering the totality of the circumstances, a magistrate
could have reasonably found the affidavit sufficient to establish probable cause to search the
computer. Accordingly, we hold the trial court did not err in finding the affidavit was sufficient
to establish probable cause even in the absence of the information complained of by Lamarre.
Therefore, we overrule Lamarre’s first point of error.
Testimony at Punishment Phase
In his second and third points of error, Lamarre contends the trial court erred in
overruling his objections to certain testimony given by two witnesses during the punishment
phase of the trial. More specifically, he argues the trial court should not have admitted the
testimony of witnesses A.M. or M.C. because their testimony was “inadmissible extraneous
[offense] victim impact testimony.”
A.M. and M.C. are Lamarre’s former step-daughters, who resided with Lamarre when he
married their mother. The State called A.M. and M.C. as witnesses during the punishment phase
of the trial. Both witnesses testified about sexual and physical abuse they allegedly suffered at
the hands of Lamarre during the time they resided with him and the impact the abuse had on
them.
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After A.M. and A.C. testified without objection that Lamarre has sexually and physically
abused them, the State asked each woman how the abuse affected her life. A.M. stated, “It’s
pretty much ruined my life.” At that point, Lamarre objected, arguing the testimony was
inadmissible because it was “victim impact and that’s inappropriate prior to sentencing.” The
objection was overruled. A.M. then stated she suffered from severe depression and panic
attacks, and was unable to maintain a stable relationship with a man.
When A.C. testified, the State asked her the same question about the effect of Lamarre’s
abuse. Lamarre raised the same objection, which was overruled. A.C. then testified she has had
extensive counseling, suffers from severe anxiety and depression, and makes “bad choices as far
as men.”
Standard of Review
This court reviews a trial court’s evidentiary rulings under an abuse of discretion
standard. Hines v. State, 383 S.W.3d 615, 624 (Tex. App.—San Antonio 2012, pet. ref’d) (citing
Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012); Martinez v. State, 327 S.W.3d
727, 736 (Tex. Crim. App. 2010)). A trial court abuses its discretion only when its decision is
outside the zone of reasonable disagreement. Hines, 383 S.W.3d at 625 (citing Tienda, 358
S.W.3d at 638).
Application
During the punishment phase of a trial, “evidence may be offered . . . as to any matter the
court deems relevant.” TEX. CODE CRIM. PROC. art. 37.07 § 3(a)(1) (West Supp. 2012). Such
evidence may include extraneous offenses, even those that are unadjudicated. Id. Such evidence
is relevant, and therefore admissible, if it will assist the trier of fact in assessing an appropriate
sentence. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). Thus, the testimony of
A.M. and A.C. regarding Lamarre’s abuse was admissible during the punishment phase as
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extraneous offense evidence. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1). This is
uncontested by Lamarre.
“‘Victim impact’ evidence is evidence of the effect of an offense on people other than the
victim.” Roberts v. State, 220 S.W.3d 521, 531 (Tex. Crim. App. 2007) (emphasis in original).
In Roberts, the court held that testimony during the punishment phase of the trial by a victim of
an extraneous robbery about the impact the robbery had on her was admissible. Id. The court
held her testimony was not inadmissible victim impact testimony because she was the victim of
the extraneous robbery. Id. (emphasis added).
The Roberts holding is directly on point. Here, A.M. and A.C. were victims of prior
extraneous offenses committed by Lamarre. During the punishment phase, these victims
testified about the impact the offenses had on their lives. Their testimony is not victim impact
evidence because they were the victims of the sexual and physical abuse. See id.
Lamarre relies on two cases from the court of criminal appeals, Haley and Cantu. See
Haley v. State, 173 S.W.3d 510 (Tex. Crim. App. 2005); Cantu v. State, 939 S.W.2d 627 (Tex.
Crim. App. 1997). These cases are distinguishable. In the cases relied upon by Lamarre, the
court of criminal appeals held testimony from the mother of the murdered victim, who was not a
victim named in the indictment, was inadmissible. Haley, 173 S.W.3d at 518; Cantu, 939
S.W.2d at 637. The court of criminal appeals reasoned such victim impact testimony was
irrelevant, and therefore inadmissible. Id. In contrast, the evidence in Roberts, as here,
concerned extraneous offense evidence from the actual victim, and therefore the evidence was
not, by definition, victim impact evidence:
The evidence presented here was evidence of the effect of a different offense on
the victim (of the extraneous offense), and thus is distinguishable from the
situation presented in Cantu. The evidence was admissible.
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Roberts, 220 S.W.3d at 531 (emphasis in the original). In sum, where the person testifying is
also a victim of the defendant, the evidence presented is not victim impact evidence, and
therefore not inadmissible under Cantu and Haley. See id.
Because the testimony from A.M. and A.C. was not victim impact testimony—it was not
evidence of the effect of an offense on someone other than A.M. and A.C.—we hold the trial
court did not abuse its discretion in overruling Lamarre’s objections to the admission of the
testimony. Accordingly, we overrule points of error two and three.
State’s Cross-Point
In a single cross-point, the State contends we must reform the judgment to reflect that
Lamarre’s sentences are to run consecutively. We agree.
The written judgments in each of appellant’s convictions state that “THIS SENTENCE
SHALL RUN CONCURRENTLY UNLESS OTHERWISE SPECIFIED.” However, when the
trial judge pronounced sentence in open court, it specifically stated, “I will assess the 10 years on
each count and stack them,” indicating the sentences were to run consecutively.
The Texas Code of Criminal Procedure requires that in a felony case, the sentence must
be pronounced in the presence of the defendant. State v. Davis, 349 S.W.3d 535, 538 (Tex.
Crim. App. 2011) (citing TEX. CODE CRIM. PROC. ANN. art. 42.03 § 1(a) (West Supp. 2012)).
“When the oral pronouncement of the sentence and the written judgment vary, the oral
pronouncement controls” because “the written sentence or order simply memorializes” the oral
pronouncement. Davis, 349 S.W.3d at 538–39 (quoting Ex parte Madding, 70 S.W.3d 131, 135
(Tex. Crim. App. 2002)). The rationale for this rule is that “the imposition of sentence is the
crucial moment when all of the parties are physically present at the sentencing hearing and able
to hear and respond to the imposition of sentence.” Once he leaves the courtroom, the defendant
begins serving the sentence imposed. Madding, 70 S.W.3d at 135.
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Here, it is undisputed that when it orally pronounced the sentence, the court ordered
Lamarre’s sentences to run consecutively, and it is this pronouncement that controls. See Davis,
349 S.W.3d at 538–38. Accordingly, we sustain the State’s cross-point and reform each of the
trial court’s judgments to indicate that the sentences are to run consecutively.
CONCLUSION
Based on the foregoing, we overrule Lamarre’s points of error and sustain the State’s
cross-point. We reform the trial court’s judgments to indicate that Lamarre’s sentences are to
run consecutively. As modified, we affirm the trial court’s judgments.
Marialyn Barnard, Justice
Do Not Publish
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