Opinion
06-19-00245-CR
07-22-2020
BRIAN SCOTT KENNEDY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court Gregg County, Texas
Trial Court No. 48,162-A Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
After a bench trial in Gregg County, the trial court found Brian Scott Kennedy guilty of aggravated assault with a deadly weapon and arson. The trial court sentenced him to fifteen years in prison for aggravated assault and eighteen years for arson. On appeal, Kennedy argues that (1) the trial court erred by failing to conduct a second competency inquiry and (2) there was legally insufficient evidence to convict him of arson. We affirm the trial court's judgment because (1) Kennedy failed to show a material change in his mental state or condition and (2) there was legally sufficient evidence that Kennedy knew he was within the Longview city limits when he started the fire and that he started the fire with the intent to damage or destroy a building.
I. Factual and Procedural Background
Longview, Texas, Police Officer Zachery Atkinson testified that, on September 29, 2018, he was dispatched to the Palace Inn in Longview, Texas, where an arson was reportedly in progress. Atkinson testified that, upon his arrival, the Inn's maintenance man, Jerry Smith, was pointing at Kennedy and saying, "It was him, it was him." Atkinson detained Kennedy, secured him in the patrol car, and with the aid of another officer, extinguished a fire in a second-floor room that was mainly used for storage. Atkinson noticed that there were "a lot of holes in the wall, damage to the drywall[,]" in the room where the fire took place. He testified that the holes could have been caused by the table leg that was found "right next to [Kennedy]" when Atkinson detained him.
Longview Fire Marshal Lieutenant Bert Scott testified that, by the time he arrived at the scene, the officers had already extinguished the fire. He determined that a couch in one of the Inn's rooms was the source of the fire. He also located a blue cigarette lighter in an adjoining room that he believed was related to the fire and was later admitted into evidence as State's Exhibit 6.
Scott interviewed Kennedy and testified that, during the interview, Kennedy confessed to starting the fire with a blue lighter. Over Kennedy's objections, portions of the recorded interview were admitted into evidence. During the recorded interview, Scott asked Kennedy twice if he started the fire, and Kennedy replied, "Yes," to both questions. When asked how he started the fire, Kennedy said, "With a lighter," and when asked what color the lighter was, he said, "Blue."
Smith also testified for the State. Smith testified that he lived in a first-floor room at the Inn. On September 29, 2018, he heard "some banging" from one of the rooms upstairs. He left his room and walked toward the sound when Kennedy walked out of one of the upstairs rooms and said he was there "trying to chase somebody" and "to rescue somebody." Smith testified that, when he told Kennedy that he needed to leave and that the upstairs rooms were only used for storage, Kennedy told Smith that he owned the place and that Smith needed to leave. Smith testified, "[T]hat's when he come [sic] downstairs with that table leg, backing me up back across the parking lot . . . before he stopped coming at me." As he was retreating from Kennedy, Smith had his brother call the police. While Kennedy was walking toward Smith, Kennedy told him that he was "going to get [him]" and that he was "going to kill [him]." At trial, Kennedy laughed when Smith testified that he believed Kennedy's threat.
Smith testified that the table leg admitted into evidence as State's Exhibit 5 was the same one Kennedy was holding that night. Detective Dustin Seay, an investigator with the Longview Police Department's Physical Evidence Section, testified that, based on his training and experience, the wooden table leg could be used as a deadly weapon.
Kennedy was charged with arson and aggravated assault with a deadly weapon. Prior to trial, Kennedy's counsel moved for a competency evaluation, maintaining that Kennedy was incompetent to stand trial because he suffered from various mental defects, lacked the ability to consult with his counsel, and lacked a rational or factual understanding of the proceedings. The trial court granted the motion and ordered a competency evaluation by Dr. Tom Allen. After examining Kennedy, Allen filed a competency evaluation with the trial court. The evaluation stated (1) that Kennedy knew he was represented by counsel, he remembered his counsel's name, and he made numerous complaints about his counsel; (2) that Kennedy's "capacity to understand his charges [was] not impaired by mental illness or cognitive limitations"; (3) that he was aware of pleas and possible sentences and could "appraise likely outcomes and participate rationally in plea bargaining"; (4) that he understood the role of his counsel, the trial court, and State's counsel; and (5) that he was able to provide "his version of events without difficulty." The report noted, "[Kennedy] insists he is competent." Based on his evaluation of Kennedy, Allen found that Kennedy was able to understand the charges against him; disclose pertinent facts, events, and states of mind to his counsel; "engage in reasoned choice regarding legal strategies and options"; understand the adversarial nature of the proceedings; exhibit appropriate courtroom behavior; and testify on his own behalf. Based on the evaluation and his findings, he concluded that Kennedy was competent to stand trial. The trial court entered an order finding Kennedy competent to stand trial.
At the conclusion of the guilt/innocence phase of trial, the court found Kennedy guilty of both aggravated assault with a deadly weapon and arson. The trial on punishment was held on November 1, 2019. Kennedy's wife, Mandy Kennedy, testified that she had known him for twenty-two years, and she agreed that he had "some mental issues." Kennedy interrupted her testimony, denying the existence of any mental problems. Mandy testified that he had been diagnosed as bipolar and schizophrenic, that he had been "committed" twice, and that his mental disorders had contributed to the conduct for which he was convicted. At that point, Kennedy interjected that his previous mental evaluations determined that "there was nothing wrong at all" and that he had not even been placed on medication. Similar outbursts from Kennedy prevented his counsel from completing his examination of Mandy. At the conclusion of the sentencing hearing, the trial court sentenced Kennedy to eighteen years in prison for arson and fifteen years in prison for aggravated assault with a deadly weapon, with the sentences to run concurrently.
II. Kennedy Failed to Show a Material Change in His Mental Status
In his first point of error, Kennedy contends that the trial court erred by failing to conduct a second competency inquiry.
A. Standard of Review
Whether to conduct a competency inquiry or order a formal competency examination is left to the discretion of the trial court. Bigby v. State, 892 S.W.2d 864, 885 (Tex. Crim. App. 1994); see Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute on other grounds by Turner v. State, 422 S.W.3d 670, 692 (Tex. Crim. App. 2013). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).
"A defendant is presumed competent to stand trial . . . unless proved incompetent by a preponderance of the evidence." TEX. CODE CRIM. PROC. ANN. art. 46B.003(b). "A person is incompetent to stand trial if the person does not have . . . sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or a rational as well as factual understanding of the proceedings." TEX. CODE CRIM. PROC. ANN. art. 46B.003(a)(1), (2). A defendant can be competent to stand trial even if highly medicated or suffering from a severe mental disease or defect. See Ex parte LaHood, 401 S.W.3d 45, 56 (Tex. Crim. App. 2013) (orig. proceeding). "Either party may suggest by motion, or the trial court may suggest on its own motion, that the defendant may be incompetent to stand trial." TEX. CODE CRIM. PROC. ANN. art. 46B.004(a). Once the issue of competency to stand trial has been sufficiently raised, the court must determine by "informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial." TEX. CODE CRIM. PROC. ANN. art. 46B.004(b), (c); Turner, 422 S.W.3d at 691-93. During the informal inquiry, the trial court is not required to follow any specific procedure or process of inquiry when questioning the defendant and/or defendant's counsel. George v. State, 446 S.W.3d 490, 501 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd).
After or in lieu of an informal inquiry, the trial court may appoint one or more disinterested experts to formally examine the defendant, report on the defendant's competency or incompetency, and testify on the issue at any trial or hearing involving that issue. TEX. CODE CRIM. PROC. ANN. art. 46B.021. During the competency examination, the expert shall consider, in addition to other issues determined relevant by the expert, the various factors set out in the statute. TEX. CODE CRIM. PROC. ANN. art. 46B.024.
Unless there is a material change of circumstances suggesting that a defendant's mental state has deteriorated since the competency evaluation, the trial court is not required to revisit the issue. Turner, 422 S.W.3d at 693. Thus, "[t]o justify a second competency hearing, defense counsel must offer new evidence of a change in defendant's mental condition since the first competency hearing and evaluation." Ashley v. State, 404 S.W.3d 672, 678 (Tex. App.—El Paso 2013, no pet.) (citing Learning v. State, 227 S.W.3d 245, 250 (Tex. App.—San Antonio 2007, no pet.)).
B. Analysis
The record reflects that Kennedy was formally examined by Allen and found competent to stand trial. Therefore, we will find an abuse of discretion only if there was evidence suggesting that Kennedy's mental status or mental condition had deteriorated after the initial competency evaluation. See Turner, 422 S.W.3d at 693; Ashley, 404 S.W.3d at 678.
Prior to trial and again prior to sentencing, Kennedy's counsel argued that he had been unable to effectively communicate with Kennedy and that, despite Dr. Allen's conclusion, he believed Kennedy was incompetent to stand trial. When the trial court advised Kennedy to listen to his attorney's advice, Kennedy said that he was innocent, but that he "[could] talk crazy" if he wanted to do so. Kennedy then questioned the credibility of the State's body camera and witness evidence, complained about some of his counsel's actions, and stated that, because he was previously found competent by another doctor, the current questions about his competency "should be out the window." He discussed the State's plea bargain offer of fifteen years and made it clear that he declined the offer because he "didn't do this."
Testifying on his own behalf, Kennedy affirmed that he knew where he lived, the judge's name, that he was in the "188th District courtroom, Gregg County, Texas" and that he understood why he was there "more than anybody." At that point, Kennedy invoked his Fifth Amendment right against self-incrimination and refused to testify further.
During the trial, Kennedy frequently interrupted the proceedings to question the State's witnesses and evidence, arguing, for instance, that the State's body camera and dash camera evidence were "fraudulent" because they had "no car number, no officer number, anything" and that the testifying officers' testimony was also "completely fraudulent" because they did not know him and he had never seen them before. He complained that his counsel refused to object to evidence or testimony when asked to do so. Kennedy frequently laughed during other witnesses' testimony, during evidentiary arguments between his counsel and the State, and during the publication of the State's recorded evidence. However, Kennedy also made several nonsensical statements. For example, during the punishment phase of the trial, Kennedy engaged in the following exchange with the trial court:
THE DEFENDANT: . . . . I was going to point out Brad Steele over there at the end, that end picture over there. You are friends with Bradley Steele, right?
THE COURT: Oh, you mean Judge Brabham?
THE DEFENDANT: No. I mean, I guess if that's what you call it. I mean, if Dylan Scott Jones (phonetic) come in here as John Novy, how would that -- how would that turn out? Like if Alvin Charles Kelly come in here as John Novy. And there is just being monitored, ten days for appeal is all I would like to say for you.
I told you I would come in here and I was going to give you time back. I didn't do this, we honored that, I mean. I mean, that's fine. Go ahead, do whatever you want to. I'm going home. Give me whatever you want to, Al.
THE COURT: Okay. Anything else, [Defense Counsel]?
THE DEFENDANT: 124th.
. . . .
THE DEFENDANT: I had a set of bands of the side of the road, setting in the road.
. . . .
THE DEFENDANT: . . . . Look in the right of that man's picture right there." . . . . That camera right there has got me in the right eye of that f[-------] picture.
Kennedy contends that the trial court should have ordered and conducted, either sua sponte or at his counsel's continued suggestion of incompetency, a second inquiry into Kennedy's competency. However, there was no evidence of a material change in Kennedy's mental status or condition since Allen's competency evaluation. See Ashley, 404 S.W.3d at 678; see also Hobbs v. State, 359 S.W.3d 919, 925 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (defense counsel's opinion, alone, is insufficient to suggest incompetence). In some of his outbursts, Kennedy maintained that he was both competent and innocent of the charges, sentiments that were previously noted in the competency evaluation. Kennedy's criticism of the State's evidence against him, knowledge of the State's plea-bargain offer, complaints about his counsel, invocation of his Fifth Amendment right against self-incrimination, and insistence that he was innocent all indicate that he was aware of the nature of the proceedings and the role of his counsel, the State, and the court. Because Allen's report found Kennedy competent and Kennedy said he could "talk crazy" if he wanted to, the trial court could have reasonably believed that Kennedy was merely acting out his threat when he made nonsensical statements later in the trial. None of Kennedy's statements indicated that he did not understand the proceedings or that he was unable to consult with his attorney. See Anthony v. State, 531 S.W.3d 739, 741 (Tex. App.—Texarkana 2016, no pet.). Therefore, the trial court was within its discretion not to further inquire as to Kennedy's competency to stand trial, and we overrule this point of error.
III. Legally Sufficient Evidence Supported the Court's Finding of Guilt
In his final point of error, Kennedy contends that there was legally insufficient evidence to support his conviction for arson.
A. Standard of Review
"In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.—Texarkana 2019 pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd)). "Our rigorous legal sufficiency review focuses on the quality of the evidence presented." Id. (citing Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring)). "We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts."' Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).
"Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge." Id. at 298 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The 'hypothetically correct' jury charge is 'one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240).
B. Analysis
A person commits the offense of arson "if the person starts a fire, regardless of whether the fire continues after ignition . . . with intent to destroy or damage . . . any building, habitation, or vehicle . . . knowing that it is within the limits of an incorporated city or town." TEX. PENAL CODE ANN. § 28.02(a)(2)(A). The State's indictment alleged that Kennedy started a fire with the intent to damage or destroy a building—the Inn—knowing that the building was within the city limits of Longview. Kennedy argues that the evidence was legally insufficient to establish that he knew that the Inn was located in the Longview city limits and that he intended to damage or destroy the Inn. Because Kennedy does not challenge the remaining elements of the offense, we need not address them.
1. Knowledge of Location
The first issue is whether there is sufficient evidence from which a reasonable fact-finder could infer that Kennedy knew that the Inn was located within the Longview city limits. See TEX. PENAL CODE ANN. § 28.02(a)(2)(A). Victor Patel, the Inn's owner, testified that the Inn is located at "2107 East Marshall Avenue in Longview, Texas, 75601," and when Patel was testifying to the same information on cross-examination, Kennedy interrupted and asked Patel if it was "east of Eastman Road, right?" and Patel answered, "Yes," Kennedy did not specifically testify that he knew the Inn was inside the Longview city limits, but when asked if he was "at [the] Palace Inn," he responded that he was "at a property -- three properties east of Eastman Road on Highway 80 in Longview, Texas." Because of the question-and-answer nature of Kennedy's response, the trial court could have reasonably inferred that Kennedy was describing the Inn's location, and because Kennedy said he was in Longview, even referring to nearby street landmarks, the trial court could have further inferred that Kennedy knew that he was within the city limits of Longview. Having found sufficient evidence that Kennedy knew he was in the Longview city limits at the time he started the fire, we next address whether there was legally sufficient evidence that Kennedy intended to damage the Inn.
2. Intent to Damage the Inn
The offense of arson is complete when the actor starts a fire with the requisite culpable mental state, even if no damage actually occurs. Romo v. State, 593 S.W.2d 690, 693 (Tex. Crim. App. [Panel Op.] 1980), overruled on other grounds by Wagner v. State, 687 S.W.2d 303, 313 n.7 (Tex. Crim. App. [Panel Op.] 1984) (op. on reh'g); Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. [Panel Op.] 1980). Intent is almost always inferred from circumstantial evidence of the person's acts, words, and conduct because "[o]ne's acts are generally reliable circumstantial evidence of one's intent." Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009) (quoting Rodriguez v. State, 646 S.W.2d 524, 527 (Tex. App.—Houston [1st Dist.] 1982, no pet.)); see also Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Kennedy contends that there was insufficient evidence that he intended to destroy or damage the Inn.
During his interview with Scott, Kennedy admitted that he started the fire with a blue lighter; therefore, there was direct evidence that he started the fire intentionally. Because it was undisputed that the fire was started with the burning of a couch, it is unlikely that the fire was started with the intent to cook or create warmth. There is no evidence that Kennedy made any efforts to extinguish the fire or alert others to its presence. Furthermore, there was evidence that Kennedy intended to damage the hotel that night because Smith heard a banging noise and saw Kennedy carrying a table leg as he descended from the second floor rooms, and Atkinson testified that there were numerous holes in the walls of the room where the fire was located and that the table leg that Smith saw Kennedy carrying that night was capable of causing the wall damage. Viewing the evidence in the light most favorable to the verdict, we find that the trial court could have reasonably inferred that Kennedy started the fire with the intent to damage or destroy the Inn.
Having found sufficient evidence that Kennedy had the requisite intent and knowledge of his location, we overrule this point of error and affirm the trial court's judgment.
III. Conclusion
For the foregoing reasons, we affirm the trial court's judgment and sentence.
Ralph K. Burgess
Justice Date Submitted: July 2, 2020
Date Decided: July 22, 2020 Do Not Publish