No. 10-01-306-CR.
Opinion delivered and filed July 2, 2003. DO NOT PUBLISH.
From the 249th District Court, Johnson County, Texas, Trial Court # F34390.
Before Chief Justice Davis, Justice Vance, and Justice Gray
TOM GRAY, Justice.
Allen Wayne Anderson was convicted of arson and aggravated assault with a deadly weapon. He was sentenced to ten years in prison with a $10,000 fine for the arson conviction. The term of confinement and fine were suspended, and Anderson was placed on community supervision for ten years. For the aggravated assault, Anderson was sentenced to five years in prison with a $750 fine. On appeal, Anderson contends he was subjected to multiple punishments for the same offense and argues that the evidence was insufficient to support his conviction for arson. We affirm.
Background
Anderson and Thomas Smith met at work. Anderson supplied Smith with marijuana, and Smith tattooed Anderson and Anderson's friends and family. When Smith and his family needed a place to stay, Anderson allowed them to stay at his home. Soon afterwards, Anderson decided to leave his wife, Huana, and their children to have an affair. He left his family virtually penniless. Huana was angry and pawned some of Anderson's belongings. She also gave some of his belongings to Smith. Approximately a week later, Smith and his family found a home of their own and moved out of Anderson's home. Within days, Anderson returned home. He was angry that Smith had some of his belongings. Smith offered to give back the items if Anderson would stop by Smith's home to pick them up. That night, Anderson paged both Smith and his wife. Smith went to Anderson's home. Huana said Anderson was in the back yard waiting for him. Smith drove his Ford pickup to the back yard. As he opened the door of the pickup, he saw a flame. At the same time, he and the interior of his pickup were doused with gasoline and set on fire. Anderson yelled, "I'm killing you, you son of a bitch, I'm sending you straight to hell." While Smith attempted to put out the fire on his body, Anderson ran to the neighbor's house to request a ride away from the scene. When the neighbor refused, Anderson ran away. Ultimately, Smith's legs and left arm were severely burned. The interior of his pickup was also severely burned. By the time of the trial, Smith had already had two skin grafts and required a third. Double Jeopardy
In his first issue, Anderson contends he was denied the constitutional right to protection against the risk of double jeopardy. He argues that because a bodily injury allegation, which was used to increase the punishment level of the arson charge, was the same criminal act used to charge aggravated assault, he was subject to multiple punishments for the same offense. The State, in one of its arguments to this issue, contends that Anderson did not preserve this issue for appeal. Assuming without deciding that Anderson did not need to preserve this complaint, we find that Anderson was not subject to multiple punishments for the same offense. Law
The Double Jeopardy Clause of the United States Constitution embodies three protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); Ex parte Broxton, 888 S.W.2d 23, 25 (Tex.Crim.App. 1994). When a defendant is convicted of two or more crimes in a single trial, only the last of these protections is implicated. Hawkins v. State, No. 07-01-0151-CR, 2003 Tex. App. Lexis 2515, *8 (Amarillo March 26, 2003, no pet. h.) (citing Ex parte Herron, 790 S.W.2d 623, 624 (Tex.Crim.App. 1990)). When the same act or transaction violates two distinct penal statutes, the test to be applied to determine if the two offenses are the same for double jeopardy purposes is whether each offense requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Mallett v. State, 65 S.W.3d 59, 68 (Tex.Crim.App. 2001). But Blockburger is not the sole test for determining whether the offenses are the same. Ex parte Ervin, 991 S.W.2d 804, 814 (Tex.Crim.App. 1999). Other factors may lead to the conclusion that the Legislature did not intend to permit multiple punishments when the same conduct violates both statutes. Id.; Hawkins, 2003 Tex. App. Lexis 2515, *8. A nonexclusive list of these factors include: (1) whether the offenses provisions are contained within the same statutory section, (2) whether the offenses are phrased in the alternative, (3) whether the offenses are named similarly, (4) whether the offenses have common punishment ranges, (5) whether the offenses have a common focus and whether that common focus tends to indicate a single instance of conduct, (6) whether the elements that differ between the offenses can be considered the "same" under an imputed theory of liability which would result in the offenses being considered the same under Blockburger, and (7) whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double jeopardy purposes. Ervin, 991 S.W.2d at 814. Application
An element of arson is starting a fire. Tex. Pen. Code Ann. § 28.02(a) (Vernon 2003). Starting a fire is not an element of aggravated assault. To prove aggravated assault in this case, the State was required to prove that Anderson used or exhibited a deadly weapon. Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon 2003). Using or exhibiting a deadly weapon is not an element of arson. Thus, the offenses for which Anderson was convicted each had an element that the other did not have and were not the "same offense" under the Blockburger analysis. The question remains whether other factors lead us to the conclusion that the Legislature did not intend to permit multiple punishments when the same conduct violates both statutes. They do not. Aggravated assault is an offense against a person and arson is an offense against property. They are not phrased in the alternative, are not named similarly, and do not have a common focus. Aggravated assault is a second degree felony while arson, as alleged by the State, is a first degree felony. Anderson does not assert an imputed theory of liability that would result in treating the differing elements as essentially the same under Blockburger and does not provide any legislative history indicating an intent to treat arson and aggravated assault as the same or different for double jeopardy purposes. Thus, the other factors do not trump our conclusion that the offenses are not the same for double jeopardy purposes, and Anderson was not subjected to multiple punishments for the same offense. His first issue is overruled. Legal Sufficiency of the Evidence
In his second issue, Anderson contends the evidence is legally insufficient to support his conviction for arson. Specifically, he argues the evidence was insufficient to prove that he intended to damage or destroy Smith's pickup. Anderson believes that while the testimony may have established that he intended to burn Smith, it was insufficient to establish that he intended to damage or destroy the pickup. Law
A legal-sufficiency review calls upon the reviewing court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000) (citing Cardenas v. State, 30 S.W.3d 384, 389 (Tex.Crim.App. 2000)). See also Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979) (emphasis in original); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). The review is the same for either direct or circumstantial evidence. Geesa v. State, 820 S.W.2d 154, 158 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). Also, it does not involve any weighing of favorable and non-favorable evidence. Margraves, 34 S.W.3d at 917. An essential element of the crime of arson is the intentional burning of property, without which the crime has not been committed. Massey v. State, 226 S.W.2d 856, 859 (Tex.Crim.App. 1950); Wheeler v. State, 35 S.W.3d 126, 134 (Tex.App.-Texarkana 2000, pet. ref'd). Mere proof that property burned is not sufficient to establish that fact. Massey, 226 S.W.2d at 859. There must be some proof, direct or circumstantial, showing the intentional burning of property by someone and the criminal connection of the accused with that burning. Id. Evidence
Anderson admitted that he threw gasoline from a pitcher in the direction of the pickup even though he did not realize, at first, Smith was in the pickup. He admitted that he took out his lighter from his pocket. Although Anderson did not admit that he caused the ignition of the gasoline, Smith testified that he saw a flicker of a flame before he and the interior of his pickup were doused with gasoline and subsequently set on fire. At the scene, investigators located a stiff, wadded up shop towel which contained gasoline and had charred edges. Smith further testified that the gasoline was thrown upward once he opened his door to ensure his pickup was doused as well. Investigator Steve Shaw corroborated Smith's testimony. He stated that the burn patterns from the interior of the pickup indicated gasoline was aggressively thrown in an upward motion from the driver's side floorboard to the passenger dash. He also stated that only a small amount of gasoline would not have caused that much damage to the interior from side to side. Pictures of Smith's pickup showed the interior to be substantially burned. Application
Anderson placed himself at the scene with the tools necessary to start the fire. Burn patterns indicated the pickup was also an intended target of the gasoline and the ignition. Thus a rational trier of fact could have found beyond a reasonable doubt that Anderson intended to burn the pickup. Anderson's second issue is overruled. Conclusion
Having overruled Anderson's two issues, the judgment of the trial court is affirmed. Affirmed