Opinion
No. 05-04-00537-CR
Opinion filed July 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-03-237. Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
OPINION
On a plea of not guilty, a jury convicted Joey Autry Thompson of arson. See Tex. Pen. Code Ann. § 28.02 (Vernon 2003). He was sentenced to eleven years' confinement. In eight issues, appellant contends: (1) the evidence fails to meet the corroboration requirement of section 38.14 of the code of criminal procedure, see Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); (2) the evidence is legally and factually insufficient to prove certain elements of the offense; (3) the trial court abused its discretion in admitting evidence of extraneous offenses; and (4) the trial court erred in instructing the jury on transferred intent. For the reasons below, we resolve appellant's issues against him and affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The indictment alleged that appellant, on or about September 26, 2002, intentionally or knowingly, with the intent to damage or destroy a building, located at 967 Sids Road, started a fire or caused an explosion by attempting to cut into a safe with a cutting torch and setting the contents of the safe on fire, thus causing the fire to spread, knowing the building was within the limits of Rockwall, Texas, an incorporated city or town. Todd Becker testified. He said he acted with appellant in the burglary of several businesses in Florida and Texas. Becker testified he intended to burglarize an "out of the way" place, and appellant suggested Potter Concrete. Becker said he was advised by appellant that appellant had been a sales representative for an equipment company and had called on Potter Concrete, located at 967 Sids Road, Rockwall, in the summer of 2002. Appellant told Becker he saw a safe there and thought it might have money in it. Appellant knew it was a gun safe and thought there might be ammunition in it. Becker and appellant "scouted the place out" one afternoon in the fall of 2002. About one week later, Becker and appellant drove to Potter Concrete at night, in a minivan that appellant had rented, which was used to hold equipment. When they arrived, according to Becker, they cut the telephone and alarm lines, and waited about thirty minutes to see if there would be a police response. Becker then pried open one of the back doors, but quickly determined he had broken into the adjoining business by mistake. After breaking into Potter Concrete, he located the safe. Because the safe was too big to remove, they used an acetylene torch to cut into it in an attempt to open the safe. However, they had only made holes in the safe door when they saw that some of the papers in the bottom of the safe had caught fire. They threw a glass of water inside, but because they heard sounds like ammunition exploding, they left. Becker testified, over appellant's objections and subject to a limiting instruction, that appellant was involved in burglarizing the safes of several businesses in Florida in June 2002, and the safe of a check cashing business in Midland, Texas, in October 2002. According to Becker, in those burglaries, he and appellant rented a van, disabled telephone lines and surveillance cameras, waited thirty minutes to assure the burglar alarms had not engaged, entered the buildings, removed the safes, opened them at other locations, and took the contents. Becker testified that appellant bought an acetylene torch in June 2002, after they returned from Florida, and Becker reimbursed him for it. As to the Midland burglary, Becker testified that they used a cutting torch to remove the safe from the floor and left burn marks on the floor. Mike Potter, president of Potter Concrete, testified that appellant made a business call at Potter Concrete in the summer of 2002. According to Potter, the gun safe could be seen from the reception area. Potter testified Potter Concrete was in the Rockwall city limits, but was located in a "pretty undeveloped" area. Ariana Adair, assistant fire marshal for the city of Rockwall, testified that she was called to the scene of a fire at Potter Concrete about 2:30 a.m. on September 26, 2002. The interior of the building was destroyed. Telephone communication wires into the building had been cut, and two rear entry doors had been pried open. Adair determined that the fire started in a safe. Tests showed that no combustible or flammable liquids were used, which was consistent with the use of a torch. In addition, Adair testified that the "cutting on the safe" was consistent with the use of a torch. The State presented a rental record from Dollar Rent A Car in Dallas showing that appellant rented a minivan on September 18, 2002, and returned it on September 26, 2002, at 11:30 p.m. The State also presented appellant's credit card account from Lowe's showing that he bought "torch kits and access[ories]" on June 19, 2002. The State presented other witnesses who testified to the Florida and Midland burglaries, also over appellant's objections and subject to a limiting instruction. Appellant did not testify. The jury charge included instructions that Becker was an accomplice and the law of transferred intent, tracking section 6.04(b) of the penal code. The application part of the charge included two paragraphs, one which authorized conviction for arson if the jury found that appellantintentionally or knowingly, with the intent to damage or destroy a building, located at 967 Sids Road, start[ed] a fire, or cause[d] an explosion, by attempting to cut into a safe with a cutting torch and setting [the] contents of [the] safe on fire, thus causing the fire to spread, knowing the said building was within the limits of an incorporated city or town, namely Rockwall, Texas,. . . .The other paragraph authorized conviction for arson if the jury found that appellant
intending to cut into a safe with a cutting torch, caused a fire which damaged or destroyed a building . . ., knowing that said building was within the limits of an incorporated city or town, namely Rockwall, Texas,. . . .
II. CORROBORATION OF ACCOMPLICE'S TESTIMONY
In issues one and two, appellant contends that the testimony of the accomplice, Becker, was not corroborated by evidence tending to connect appellant with the indicted offense. Specifically, appellant argues that evidence presented by the State's other witnesses was either too weak and tenuous to connect appellant to the crime or tended to connect appellant only to other, extraneous offenses.A. Applicable Law
"A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient it if merely shows the commission of the offense." Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). The test for weighing the sufficiency of corroborative evidence is to eliminate from consideration the testimony of the accomplice witness and then examine the testimony of other witnesses to ascertain if there is evidence which tends to connect the accused with the commission of the offense. Reed v. State, 744 S.W.2d 112, 125 (Tex.Crim.App. 1988). It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App. 1999). If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled. Id. (citing Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App. 1991)). Each case must be considered on its own facts and circumstances. Reed, 744 S.W.2d at 126.B. Discussion
The facts show: (1) appellant visited Potter Concrete on business in the summer of 2002, shortly before the alleged offense, and was thus aware of its "out of the way" location in an undeveloped area and that a safe was present; (2) appellant bought an acetylene torch on June 19, 2002, within a short time before the alleged offense on September 26, 2002; and (3) appellant rented a minivan, returning it at to a Dallas rental car agency at 11:30 p.m. on September 26, 2002, within twenty-four hours of the alleged offense. These facts tend to connect appellant to the commission of the alleged offense when explained in the context of the time, place, and nature of the alleged offense, and, as such, corroborate Becker's testimony that Potter Concrete was in an "out of the way place" and that an acetylene torch and a minivan, which could carry equipment and a safe, if necessary, were used to commit the alleged offense. On the facts and circumstances of this case, we conclude there is some non-accomplice testimony which tends to connect appellant to the commission of the alleged offense. See Cathey, 992 S.W.2d at 462; Reed, 744 S.W.2d at 125. Accordingly, we conclude that the requirement of article 38.14 has been met, and we resolve appellant's first and second issues against him.III. SUFFICIENCY OF THE EVIDENCE
In issues three through six, appellant challenges the legal and factual sufficiency of the evidence supporting specific elements of the offense.A. Standard of Review and Applicable Law
In assessing the legal sufficiency of the evidence to support a conviction, we consider all the record evidence in the light most favorable to the jury's verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of all of the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003). The legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). This hypothetical charge would set out the law, be authorized by the indictment, not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describe the particular offense for which the defendant was tried. Id. In determining the factual sufficiency of the evidence, we view all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). To make this determination, we consider whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, that is, the verdict is clearly wrong and manifestly unjust, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85; Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). Our evaluation of the sufficiency of the evidence must not substantially intrude upon the jury's role as the sole judge of the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). When, as in this case, the trial court's charge authorized the jury to convict on different theories, we uphold the verdict of guilty if the evidence is sufficient on any one of the theories. Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex.Crim.App. 1992). A person commits the second degree offense of arson if the person starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with intent to destroy or damage any building, knowing that it is within the limits of an incorporated city or town. Tex. Pen. Code Ann. § 28.02(a)(2)(A), (d) (Vernon 2003). A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Id. § 6.03(a) (Vernon 2003). A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. Id. § 6.03(b) (Vernon 2003). A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that a different offense was committed. Id. § 6.04(b)(1) (Vernon 2003).B. Discussion 1. Knowledge of the Location of the Offense
In issues three and four, appellant contends the evidence is insufficient to prove that he knew that the location of the offense was within the incorporated limits of the city of Rockwall. There was evidence that a large sign next to the entrance of Potter Cement gave the address as "967 Sids Road, Rockwall Tx." (Emphasis added). Moreover, there was testimony that Potter Concrete was a customer of appellant's employer, appellant called on Potter Concrete purposefully to discuss business, and appellant's business associate, Russell Kelly, knew that Potter Concrete was located within the Rockwall city limits. It is a reasonable inference from this evidence that appellant, in his business pursuits, knew that the building was located within the Rockwall city limits. Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found that appellant knew that the location of the offense was within the incorporated limits of the city of Rockwall. See Jackson, 443 U.S. at 318-19. We resolve appellant's third issue against him. Appellant argues that there was evidence that the building was located in an undeveloped area and there were no signs in the vicinity that one was entering the "City of Rockwall." However, the jury is the sole judge of the weight and credibility of the evidence. See Johnson, 23 S.W.3d at 7. Considering all the evidence in a neutral light, we conclude that the evidence is not too weak to support the finding of guilt beyond a reasonable doubt, nor is the contrary evidence strong enough that the State could not have met its burden of proof. See Zuniga, 144 S.W.3d at 484-85. We resolve appellant's fourth issue against him.2. Intent to Damage or Destroy the Building
In issues five and six, appellant contends the evidence is insufficient to prove that he had the intent to damage or destroy the building. He contends that section 28.02(a)(2)'s requirement of specific intent to damage or destroy a building, see, e.g., Beltran v. State, 593 S.W.2d 688, 689 (Tex.Crim.App. 1980), precludes a conviction for arson based upon an accident. Moreover, appellant contends that the only evidence as to intent was (1) Becker's testimony that he and appellant did not intend to damage or destroy the building, and (2) Adair's opinion that the destruction of the building was an accident. In his eighth issue, appellant contends that the trial court erred in instructing the jury on transferred intent, thus allowing the jury to find him guilty without proof that he had the specific intent to damage or destroy the building as alleged in the indictment and required by the arson statute. He argues that the evidence did not support the allegation that he had the specific intent to damage or destroy the building and there can be no "transferred intent" when the arson statute requires the "specific intent" to destroy or damage a building. Because appellant's arguments under these three issues overlap, although presented in terms of sufficiency and charge error, we consider them together.A. Applicable Law
As explained in Loredo v. State, 130 S.W.3d 275, 282 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd), although section 6.04(b) is titled transferred intent,it is somewhat of a misnomer because the concept does not address intent or any other mens rea. Rather, it depicts an effort by the legislature to criminalize an act that resulted in a different offense than the accused intended to commit. See Castillo v. State, 71 S.W.3d 812, 815 (Tex.App.-Amarillo 2002, pet. ref'd). Section 6.04(b) transfers the mens rea of a contemplated, but incomplete, offense to the offense actually committed by mistake or accident. Price v. State, 861 S.W.2d 913, 916 (Tex.Crim.App. 1993). The rationale is that public policy demands that persons engaged in criminal activity not be exonerated "merely because they accidentally commit a different offense than originally contemplated." Sargent v. State, 518 S.W.2d 807, 810 (Tex.Crim.App. 1975). Therefore, the intent to commit the contemplated offense transfers to the offense in fact committed. Ex parte Easter, 615 S.W.2d 719, 720 (Tex.Crim.App. 1981); Honea v. State, 585 S.W.2d 681, 685 (Tex.Crim.App. 1979).The principle of transferred intent under section 6.04(b)(1) may be applied in the jury charge when the evidence warrants, although not alleged in the indictment. See Garcia v. State, 791 S.W.2d 279, 282 (Tex.App.-Corpus Christi 1990, pet. ref'd) (discussing application of section 6.04(b)(2) in murder case).
B. Discussion
Here, there was evidence that appellant entered the building housing Potter Concrete with the intent to burglarize the safe. Appellant used the torch to attempt to open the safe, igniting the papers in the safe. The fire spread to the rest of the building, destroying it. Thus, while appellant entered the building with the intent to commit one offense, burglary, he committed another offense, arson. "[T]he intent to commit the contemplated offense transfers to the offense in fact committed." Loredo, 130 S.W.3d at 282. The only difference between what appellant intended and what occurred was that a different offense was committed. See id. Appellant argues that "transferred intent" conflicts with arson's "specific intent" requirement. He contends that because the offense of arson explicitly requires the specific intent to damage or destroy a building, there can be no transferred intent in an arson case. However, because section 6.04 does not state an intent requirement, it cannot "conflict" with the intent requirement of the arson statute. The pertinent question is whether appellant intended to commit the "contemplated offense," burglary, but committed a different offense by mistake or accident, arson, and there is evidence that he did. See id. Accordingly, the trial court did not err in instructing the jury on transferred intent. See Garcia, 791 S.W.2d at 282. We resolve appellant's eighth issue against him. Turning to appellant's sufficiency issues, we note that the jury charge authorized conviction of appellant for arson if the jury found from the evidence beyond a reasonable doubt that appellant, "intending to cut into a safe with a cutting torch, caused a fire which damaged or destroyed a building. . . ." Under this theory of transferred intent, whether appellant had the specific intent to damage or destroy the building is not at issue. As noted above, the evidence is undisputed that appellant intended to cut into a safe with a cutting torch and caused a fire which damaged or destroyed the building housing Potter Concrete. The evidence that appellant accidentally caused a fire is relevant to this theory and supports appellant's conviction under this theory. Applying the appropriate standards of review, we conclude that the evidence is legally and factually sufficient to support appellant's conviction for arson under this transferred intent theory. Therefore, we need not consider whether the evidence is sufficient to support appellant's conviction under the alternative paragraph which tracks the arson statute. See Rabbani, 847 S.W.2d at 558-59. We resolve appellant's fifth and sixth issues against him.IV. EVIDENTIARY RULINGS
In his seventh issue, appellant contends that the trial court abused its discretion in admitting extraneous offense evidence, specifically, evidence regarding a traffic ticket issued in Arlington, Texas, on September 20, 2002 for failure to wear a seat belt and the Florida and Midland burglaries. Citing rules of evidence 403 and 404(b), appellant contends that this evidence was inadmissible because it did not tend to connect him with the indicted offense. In addition, appellant argues that the extraneous offenses were not proved beyond a reasonable doubt.A. Standard of Review
The admission of evidence is a matter within the discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 378 (Tex.Crim.App. 1990). As long as the trial court's ruling was within the "zone of reasonable disagreement" there is no abuse of discretion, and we must uphold the trial court's ruling. Id. at 391 (op. on reh'g).B. Discussion 1. Arlington ticket
The record shows that police officer Becki Brandenburg testified regarding the traffic ticket without any objection. Accordingly, appellant failed to preserve any complaint on appeal as to the admissibility of this evidence. See Tex.R.App.P. 33.1 (to preserve error, appellant must present to trial court timely request, motion, or objection, state specific grounds, and obtain ruling). Accordingly, we do not consider this evidence further.2. Florida and Midland burglaries
The record shows that appellant's counsel asked Becker, on cross examination, who worked with him in committing burglaries in Florida. Becker included appellant in his response. When the State attempted to elicit testimony on redirect regarding appellant's involvement with Becker in Florida, appellant's counsel approached the bench, and a hearing was held outside the presence of the jury. The State argued that appellant opened the door, and, pursuant to rule of evidence 404(b), the evidence was relevant to "method, plan, and operation." The State also said that it needed to "corroborate that," referring to Becker's testimony, "because accomplice testimony is not enough." Appellant's counsel requested a limiting instruction and filed one with the trial court. However, appellant's limiting instruction leaves blank a space for the "purpose for which extraneous matters were admitted." There was discussion of the wording of the instruction. As to the Midland burglaries, appellant objected under rules 401, 402, 403, and 404(b). The judge said he would give a limiting instruction "regarding intent, preparation, plan, and knowledge." Before the jury, Becker testified that he was in Florida on a family vacation, and appellant flew to Florida the first week of June, 2002, rented a minivan, and stayed in a motel. Becker described how they burglarized the safes of a gas station, a souvenir shop, a liquor store, and a currency exchange. The State introduced a motel receipt showing appellant rented a room from June 4 through 8, 2002, in Kissimmee, Florida, and a van rental agreement from Orlando, Florida, from June 4 through 8, 2002. The jury also heard testimony from two Orange County, Florida law enforcement officers who investigated the June 6 burglary of the liquor store and from the owner of the liquor store. Becker also testified that he and appellant drove from Dallas to Midland in October 2002, and burglarized a convenience store there. He testified that they successfully used an acetylene torch to cut the bolts holding the safe to the floor. The State introduced car rental records showing appellant rented a van in Dallas on October 14 and returned it on October 24, 2002. The State also introduced a motel receipt showing appellant stayed in Midland from October 14 through October 16, 2002. Midland law enforcement officers testified that they investigated an October 17 convenience store burglary, and that there were burn marks on the floor. The trial court instructed the jury that if there was any testimony regarding appellant having committed offenses other than the offense alleged in the indictment,you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that [appellant] committed such other offenses, if any were committed, and even then, you may only consider the same in determining the intent, plan, preparation, or knowledge of [appellant], if any, in connection with the offense, if any, alleged against him in the indictment in this case and for no other purpose.Appellant objected to the limiting instruction as given and requested the court give appellant's instruction. The trial court overruled appellant's instruction "to the extent that mine differs at all from yours." On appeal, appellant argues that the evidence is inadmissible pursuant to rules 404(b) and 403 because this evidence fails to connect him to the indicted offense. Although he argues on appeal that these offenses "were not relevant nor pertinent to any issue in this case," he agreed to a limiting instruction pursuant to rule 404(b) as to "intent, plan, preparation, or knowledge" which he does not challenge on appeal. Instead, appellant relies on authorities applying article 38.14 relating to the corroboration of accomplice testimony. See, e.g., Walker v. State, 615 S.W.2d 728, 731 (Tex.Crim.App. [Panel Op.] 1981) ("And evidence corroborating what the accomplice witness said he and others did and not tending to connect the appellant with the crime charged cannot be considered."). However, the corroboration requirement of article 38.14 is not a rule of admissibility of evidence. See Murdock v. State, 840 S.W.2d 558, 566 (Tex.App.-Texarkana 1992), vacated for remand reconsideration on other grounds, 845 S.W.2d 915 (Tex.Crim.App. 1993), adopted incorporated on remand, 856 S.W.2d 262, 264 (Tex.App.-Texarkana 1993, pet. ref'd). In addition, extraneous offense evidence is admissible under rule 404(b) for the purpose of corroboration under article 38.14. Lawton v. State, 913 S.W.2d 542, 564 n. 9 (Tex.Crim.App. 1995), disavowed on other grounds by Moseley v. State, 983 S.W.2d 249, 263 n. 18 (Tex.Crim.App. 1998). Accordingly, we reject appellant's argument that evidence of extraneous offenses is inadmissible pursuant to rule 404(b). Likewise, appellant's argument pursuant to rule of evidence 403 consists of statements that this evidence does not tend to connect appellant with the indicted offense and citations to cases applying article 38.14. However, like rule 404(b), we conclude that this complaint does not relate to the admissibility of this evidence under rule 403. See Murdock, 840 S.W.2d at 566. Moreover, although this evidence was argued by appellant to be highly prejudicial, he does not argue specifically how it had an undue tendency to suggest that a decision be made on an improper basis such as an emotional one and was thus unfairly prejudicial. See Tex. R. Evid. 403. Although appellant cites factors included in a rule 403 balancing test, he does not apply them to these facts. See Montgomery, 210 S.W.2d at 389-90 (op. on reh'g). To the extent that appellant is arguing that Becker's testimony regarding the extraneous offenses was not corroborated, we disagree. Even assuming that the terms of section 38.14 are applicable to extraneous offenses as well as to primary offenses, see Bustamante v. State, 653 S.W.2d 846, 849 (Tex.App.-Corpus Christi 1982), pet. dism'd improvidently granted, 702 S.W.2d 193 (Tex.Crim.App. 1985) (per curiam), as noted above, the State introduced van and hotel rental records which placed appellant at or near the scene of the crimes about the time of their commission, thus tending to connect appellant to the extraneous offenses and corroborating Becker's testimony. See Tex. Code Crim. Proc. Ann. art. 38.14; Reed, 744 S.W.2d at 127; Walker, 615 S.W.2d at 732. Appellant's argument that no physical evidence ties him to the extraneous offenses is without merit because appellant's connection to the extraneous offenses need not be proved to a certainty; the corroborating evidence need only "tend to connect" appellant with the extraneous offenses. See Tex. Code Crim. Proc. Ann., art. 38.14. Lastly, appellant argues that the extraneous offenses were not proved beyond a reasonable doubt and therefore should not have been considered by the jury. Prior to the admissibility of any extraneous offense, the trial court must be satisfied "that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense." Harrell v. State, 884 S.W.2d 154, 160 (Tex.Crim.App. 1994); see Tex. R. Evid. 104(b). Even assuming appellant preserved this complaint for review by properly objecting below, we reject appellant's argument because the State's uncontradicted evidence, including Becker's corroborated testimony, shows appellant committed the extraneous offenses. Having rejected appellant's arguments that the trial court abused its discretion in admitting evidence of extraneous offenses, we resolve his seventh issue against him.