No. 05-09-01037-CR
Opinion Filed January 21, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-50663-P.
Before Justices BRIDGES, FRANCIS, and LANG.
Opinion By Justice LANG.
Jerry Wayne King appeals the trial court's judgment convicting him of arson. The jury found King guilty of arson. King pleaded true to the two enhancements and the trial court assessed his punishment at forty years of imprisonment. King raises nine issues on appeal that argue the following four points: (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred when it denied his motion to suppress his written statement and failed to instruct the jury on the voluntariness of that statement; (3) he was denied the effective assistance of counsel at trial and the trial court abused its discretion when it denied his amended motion for new trial; and (4) the judgment should be reformed to reflect the correct statute under which he was charged and convicted. We conclude the evidence is sufficient to support King's conviction. Also, we conclude the trial court did not err when it denied King's motion to suppress his written statement and failed to sua sponte instruct the jury on the voluntariness of that statement. We conclude that King was not denied effective assistance of counsel and the trial court did not abuse its discretion when it denied King's amended motion for new trial. Finally, the trial court's judgment is modified to reflect the correct statute for the offense. The trial court's judgment is affirmed, as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
Arthur Forest lived at 3829 Loving Good Drive, Dallas, Texas with his mother, cousin, and aunt. Forest did some mechanic work in the garage and had it set up so he could sleep there. King had been to Forest's house and knew where Forest slept. King lived with his sister, Eugenia Calacut, on Loving Good Drive, down the street from Forest. Calacut stated that there was a gas canister sitting in the front of the house she shared with King. On January 12, 2008, at about 10:30 p.m., Calacut saw King leave their house and return 20 to 30 minutes later. Sometime between 10 p.m. and midnight, Carla Polk drove her mother home to her house on Loving Good Drive. When Polk pulled into her mother's driveway, they smelled and saw smoke coming from the house next door. Polk watched a man, later identified as King, walk from around the bushes carrying a gas canister. Polk heard sirens, but left. Meanwhile, Forest went into his garage and saw that a quilt hanging on the inside of the garage door was on fire. He put the fire out with a fire extinguisher. Then, he opened the garage door and saw a gas canister on the ground. He also saw a single bullet on top of the car parked in the driveway. The next day, Calacut noticed that the gas canister that had been sitting in the front of the house where she and King reside had been removed. Captain Paul Martinez and Captain Linda Osbourne Henry of the Dallas Fire and Rescue Department investigated the fire. They observed that an ignitable liquid appeared to have been poured along the edges of the garage and some paper at the end of the garage door caught fire; they concluded the fire was intentionally set. Also, they found a red, plastic gasoline canister containing an ignitable liquid, which had the consistency of gasoline, near the scene of the fire. In addition, they found a bullet placed upright on the roof of the car parked in the driveway. Captain Sam Stephenson continued the investigation started by Martinez and Henry. A few days after the fire, he went to King's house. King, holding a partially full bottle of beer, answered the door and said, "I've been waiting on you-all to come get me," and put his hands out. Stephenson asked King what he was talking about and King replied that he wanted Stephenson to handcuff him. Stephenson told King that he just wanted to speak with him. After speaking to King for a while, Stephenson asked King to come to his office. King agreed. Once at his office, Stephenson offered King food and beverages. After approximately an hour and a half of general chatting, Stephenson began to question King. During their conversation, King admitted he set the fire. At that point, Stephenson advised King of his Miranda rights and asked King if he was willing to provide a written statement. King stated that his handwriting was not good, so he gave his statement orally and Stephenson wrote it down as follows: I am giving Captain Stephenson permission to write this statement for me. Under the influence of alcohol, I was feeling lost and alone. Trying to bring attention to the drug activity at 3829 Loving [Good] Drive. No one paid attention to me and out of my frustration, I did something stupid. I started a small fire in the front yard. I felt that I wanted to go to jail. I was waiting for the police to come get me. I have also called 911 several times about that address. I would call 911 from a pay phone. Because of my erratic behavior[,] the drug traffic at 3829 Loving [Good] Dr[.] has slowed down. If I had to do it all over again, I wouldn't have done nothing because nothing has changed. I also remember setting a bullet on the top of the car.
King was indicted for arson, enhanced by two prior convictions for arson. The jury found him guilty. King pleaded true to the two enhancements and the trial court assessed his punishment at forty years of imprisonment. II. SUFFICIENCY OF THE EVIDENCE
In issues one and two, King argues the evidence is legally and factually insufficient to support his conviction for arson. He argues that, at most, the evidence shows only that he started a fire in Forest's front yard, not to the garage door as alleged in the indictment. The State responds that the cumulative evidence shows King was seen near the bushes in the front yard, he stated that he set a small fire in the front yard, the garage door is in the front of the house, and there are bushes in the front area next to the garage door. After the briefs were filed and the Court heard oral argument in this case, the Texas Court of Criminal Appeals issued its opinion in Brooks overruling Clewis and holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply when determining whether the evidence is sufficient to support each element of a criminal offense that the State has to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.), overruling Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). In accordance with Brooks, we review issues one and two under the Jackson v. Virginia standard to determine whether there is sufficient evidence to support the verdict against King. See Jackson v. Virginia, 443 U.S. 307 (1979). A. Standard of Review
Under the proper sufficiency standard of review, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19; Brooks, 323 S.W.3d at 899. Appellate courts are required to determine whether any rational juror could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n. 19. An appellate court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 319, 326; Brooks, 323 S.W.3d at 899. All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel v. Brown, 130 S. Ct. 665, 672 (2010); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319. B. Applicable Law
A person commits arson if he starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with intent to destroy or damage any building or habitation, knowing that it is within the limits of an incorporated city or town. Tex. Pen. Code Ann. § 28.02(a)(2)(A) (West Supp. 2009). C. Application of the Law to the Facts
The indictment alleged that King "with intent to damage and destroy a habitation, start[ed] a fire and cause[d] an explosion, by using a combustible liquid to set fire to the garage door, knowing that said habitation was within the limits of an incorporated city and town, namely, Dallas, Texas." King concedes that a fire started in Forest's garage, he lived in the neighborhood where the fire occurred, and he may have been seen near the location of the fire. However, King claims the evidence is insufficient because at most, the evidence shows only that he started a fire in Forest's front yard. In his written statement, King stated, "I started a small fire in the front yard" and "I also remember setting a bullet on the top of the car." Also, when Stephenson went to King's house, King said "I've been waiting on you-all to come get me," put his hands out, and stated that he wanted Stephenson to handcuff him. Martinez and Henry found a gas canister at the scene of the fire and a bullet sitting on top of the car parked in the driveway. Also, they observed that an ignitable liquid appeared to have been poured along the edges of the garage and some paper at the end of the garage door appeared to have caught fire. The photographs of Forest's house, which were admitted into evidence during the trial, show that there were bushes beside the garage door. Polk saw smoke coming from the house next door to her mother's house, said "It's coming from by the bushes," and saw a man, who she later identified as King, carrying a gas canister come from around the bushes. Calacut said that she lived with King, knew a gas canister was sitting in the front of their house, and the day after the fire, saw that the gas canister was gone. We conclude the evidence is sufficient to show that King started a fire to the garage door as alleged in the indictment. Issues one and two are decided against King. III. VOLUNTARINESS OF KING'S STATEMENT
In issues three and four, King argues the trial court erred when it denied his motion to suppress his written statement and failed to instruct the jury on the voluntariness of that statement. A. Motion to Suppress
In issue three, King argues that his written statement was not voluntarily and knowingly given because he was intoxicated when he gave his statement to the police. The State responds that King does not argue his statement was involuntary because his Miranda rights were violated. Instead, he claims only that his written statement was involuntary due to his alleged intoxication. 1. Applicable Law
The determination of whether a statement is voluntary is based on an examination of the totality of the circumstances surrounding its acquisition. See Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007), cert. denied, 128 S.Ct. 1128 (2008); Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000); Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). A confession may be involuntary under the Due Process Clause only when there is police overreaching. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). Even if a confession is not the product of a meaningful choice, it is "voluntary" within the meaning of the Due Process Clause absent some coercive police activity. Id. at 169-70. Accordingly, due-process and Miranda claims of involuntariness generally do not require inquiries into the state of mind of a defendant who has confessed. Id. at 171. They involve an objective assessment of police behavior. Id. However, claims of involuntariness under article 38.22 of the Texas Code of Criminal Procedure can be predicated on police overreaching and involve sweeping inquiries into the state of mind of a defendant who has confessed. Id. at 172. Under articles 38.21 and 38.22, a state-law claim of involuntariness may include that the defendant was intoxicated. See id. at 172-73. Intoxication is usually not enough to render a statement inadmissible under article 38.22. Id. at 173. 2. Application of the Law to the Facts
On appeal, King argues "the State has the burden under the Fifth and Fourteenth Amendments of proving by a preponderance of the evidence that [his] confession was voluntary." Also, he argues the error that violated his "constitutional rights" was harmful. King does not argue or cite article 38.22 of the Texas Code of Criminal Procedure. Nor does he cite or discuss the Texas Court of Criminal Appeals's opinion in Oursbourn. The two cases cited by King, holding that courts must ask whether the defendant's intoxication rendered him incapable of making an independent, informed decision to confess, were decided before the Texas Court of Criminal Appeals issued its opinion in Oursbourn. See Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996); Simpson v. State, 67 S.W.3d 327, 332 (Tex. App.-Texarkana 2001, no pet.). Pursuant to Oursbourn, neither the Due Process Clause nor Miranda apply to King's complaint that his confession was involuntary because of his intoxication. Although King claimed intoxication, he asserted only that his "Fifth and Fourteen Amendment rights" were violated. On appeal, he does not assert article 38.22 as a basis for his claims. Accordingly, under the authority of Oursbourn, we conclude the trial court did not err when it denied King's motion to suppress on the basis that King's constitutional rights were violated. However, even if King had preserved the point based on article 38.22, we would conclude on this record that the trial court did not abuse its discretion when it denied King's motion to suppress. A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. This standard requires an appellate court to give almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). A trial court is the sole trier of fact, and the judge of witness credibility and the weight to be given to their testimony. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). In this case, the trial court heard the evidence, including the facts and circumstances surrounding and leading up to the confession, and had the opportunity to observe King both in the video-recorded confession and in the trial court. The trial court found that "Captain Stephenson believed that [King] was intoxicated at that time, . . . and offered [King] coffee and water in order to sober him up. . . . And Captain Stephenson spoke with [King] for approximately an hour to an hour and a half before even confronting him about the alleged offense." Also, the trial court found that "although [King's] behavior was somewhat bizarre, . . . [King] was coherent at the time that he was read his Miranda warnings by Captain Stepehenson." See Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). After reviewing the record in accordance with the applicable standard, we conclude the trial court did not abuse its discretion because the evidence supports the trial court's findings. Issue three is decided against King. B. Jury Instruction on Voluntariness
In issue four, King argues the trial court erred when it failed to instruct the jury on the voluntariness of his statement. He concedes that he did not request an instruction on the voluntariness of his statement. However, he argues that (1) the trial court was obligated to provide a jury instruction on voluntariness because the voluntariness of his statement was a "central issue in [the] case" and he raised the issue during his jury argument; and (2) he suffered egregious harm because the only direct link between King and the fire was his written statement. The State responds that the trial court was not required to provide a jury instruction on voluntariness because the evidence of King's intoxication does not raise a question of involuntariness per se and defense counsel's argument is not evidence. Also, the State argues that King did not suffer egregious harm because King's written statement was only marginally inculpatory and the primary evidence came from other sources. 1. Applicable Law
Article 38.22, section 6, of the Texas Code of Criminal Procedure governs the admissibility of a defendant's custodial and non-custodial statements and provides that only voluntary statements may be admitted. Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West); see Oursbourn, 259 S.W.3d at 171. When there is a question regarding whether the defendant's statement was voluntary, the sequence of events contemplated by section 6 is as follows: (1) a party notifies the trial court that there is an issue regarding the voluntariness of the defendant's statement or the trial court raises the issue on its own; (2) the trial court conducts a hearing outside the presence of the jury; (3) the trial court decides whether the defendant's statement was voluntary; (4) if the trial court decides the defendant's statement was voluntary, it will be admitted, but the defendant may offer evidence before the jury suggesting that his statement was not voluntary; and (5) if the defendant offers evidence before the jury that his statement was not voluntary, the trial court shall give the jury a voluntariness instruction. Oursbourn, 259 S.W.3d at 175. A trial court has an absolute sua sponte duty to prepare a jury charge that accurately sets out the law applicable to the specific offense charged. Oursbourn, 259 S.W.3d at 179; see Tex.Crim. Proc. Ann. art. 36.14 (West 2007). If the parties raise and litigate a general voluntariness issue before the jury, then an article 38.22, section 6, instruction becomes the law applicable to the case. Oursbourn, 259 S.W.3d at 176, 180. When the evidence raises the issue of the voluntariness of a defendant's statement under article 38.22, section 6, the trial court must give a general voluntariness instruction, regardless of whether it was specifically requested. Oursbourn, 259 S.W.3d 165, 175-76. However, under article 38.22, section 6, there is no error in refusing to include a jury instruction when there is no evidence before the jury to raise that issue. Vasquez v. State, 225 S.W.3d 541, 545 (Tex. Crim. App. 2007). Some evidence must have been presented to the jury that the defendant's statement was not given voluntarily. Alvarado v. State, 912 S.W.2d 199, n. 9 (Tex. Crim. App. 1995). However, evidence presented by the State in anticipation of an attack on the voluntariness of a defendant's statement does not put voluntariness at issue. See Brooks v. State, 567 S.W.2d 2, 3 (Tex. Crim. App. 1978). Further, where the majority of the defendant's "evidence" of involuntariness consists of leading questions propounded to police officers that imply his statement was not voluntary, the issue of voluntariness was not raised. See Muniz v. State, 851 S.W.2d 238, 255 (Tex. Crim. App. 1993). Conversely, when a defendant is entitled to a section 6 instruction, but did not request such an instruction, the effect of the instruction's omission is reviewed under Almanza's egregious harm standard. See id. at 182 n. 89. 2. Application of the Law to the Facts
King argues that the issue of voluntariness was raised and litigated because "the voluntariness of [his] written statement clearly was a central issue in this case." King does not discuss or provide citation to any evidence before the jury showing that the issue of voluntariness was actually litigated. See Tex. R. App. P. 38.1(i). However he does claim that once his written statement was admitted into evidence, his trial counsel "tried to mitigate the damage during jury argument by arguing that Captain Stephenson should have waited to question him because he was intoxicated and pressured him to write a statement, and his intoxication rendered his statement involuntary." Accordingly, based on the record and argument before us, we conclude that a question of voluntariness was not raised by the parties that would have triggered the trial court's duty to sua sponte give a general voluntariness instruction under article 38.22, section 6, on the basis that it was the law applicable to the case. Issue four is decided against King. IV. EFFECTIVE ASSISTANCE OF COUNSEL
In issues five, six, seven, and eight, King argues he was denied the effective assistance of counsel at trial and the trial court abused its discretion when it denied his amended motion for new trial alleging that he received ineffective assistance of counsel. King claims his trial counsel's performance fell below an objective standard of reasonableness because he (1) failed to more thoroughly explore King's theory that the arson charge was retaliation for reporting Forest's drug dealing activities to the police and failed to investigate King's mental condition; (2) offered into evidence the video recording of King's police interview and statement; and (3) failed to request an instruction in the jury charge on the voluntariness of his written statement. The State responds that the evidence presented during the hearing on King's amended motion for new trial showed King's trial counsel investigated defensive theories and made sound trial strategies. Also, the State argues that there is direct evidence showing that King was at the scene of the fire at the time of the fire and the gas can that was recovered from the scene of the fire belonged to King's house. Further, the State argues there is circumstantial evidence showing that King moved the gas can on the night of the fire in order to set the fire and left the gas can at the scene of the fire. A. Standard of Review
When an appellant presents his ineffective assistance claim to the trial court in a motion for new trial, an appellate court analyzes his ineffective assistance of counsel issue as a challenge to the denial of his motion for new trial. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (holding appropriate standard of review for ineffective assistance claim brought forth in motion for new trial is abuse of discretion), superceded by statute on other grounds as stated in Herndon v. State, 215 S.W.3d 901 (Tex. Crim. App. 2001); see also Sanchez v. State, 243 S.W.3d 57, 63 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd); Schoenbauer v. State, 85 S.W.3d 400, 402 (Tex. App.-Tyler 2002, no pet.). In such circumstances, an appellate court reviews the Strickland test through an abuse of discretion standard. Charles, 146 S.W.3d at 208. An appellate court must decide whether the trial court's resolution of the ineffective assistance of counsel claim and the denial of the motion for new trial were clearly wrong and outside the zone of reasonable disagreement. See Sanchez, 243 S.W.3d at 63. An appellate court will reverse only if the trial court's decision was arbitrary or unreasonable, viewing the evidence in the light most favorable to the ruling. Biagas v. State, 177 S.W.3d 161, 170 (Tex.App.-Houston [1 Dist.], 2005, pet. denied). B. Applicable Law
To prevail on a claim of ineffective assistance of counsel, an appellant must show the following: (1) counsel's performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101. C. Application of the Law to the Facts
Even if trial counsel's performance fell below an objective standard of reasonableness, King must show a reasonable probability exists that, but for trial counsel's errors, the result would have been different. In his brief, King states that "there is a reasonable probability that, but for trial counsel's unprofessional errors, the result of the proceeding would have been different," and "[i]f it were not for [trial counsel's] acts and omissions, there is a probability that the jury would have found [King] not guilty of the offense charged." King also argues that "if the jury was uncertain about whether [he] committed an offense before watching the [video recording of his interview and statement to the police], the [video recording] likely persuaded them to convict [him] simply based on his behavior displayed on the [video recording]." King does not provide further argument or references to the record to support these conclusory assertions. Accordingly, we conclude King has not shown he received ineffective assistance of counsel because he has not shown that but for trial counsel's errors, the result would have been different. Also, we conclude the trial court did not abuse its discretion when it denied King's amended motion for new trial. Issues five, six, seven, and eight are decided against King. V. REFORMATION OF THE JUDGMENT
In issue nine, King argues the judgment should be reformed to reflect the correct statute under which he was charged and convicted. The State agrees with King that the judgment should be modified to reflect that he was convicted of arson pursuant to Texas Penal Code section 28.02. We have the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information before us to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly we modify the portion of the trial court's judgment which reads "Statute for Offense: 28.01 Penal Code" and replace it with "Statute for Offense: 28.02 Penal Code." Issue nine is decided in King's favor. VI. CONCLUSIONS
The evidence is sufficient to support King's conviction. The trial court did not err when it denied King's motion to suppress his written statement and failed to sua sponte instruct the jury on the voluntariness of that statement. King was not denied effective assistance of counsel and the trial court did not abuse its discretion when it denied King's amended motion for new trial. The trial court's judgment is modified to reflect the correct statute for the offense. The trial court's judgment is affirmed, as modified.