By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Evidence sufficient for arson; respondent not
in custody when statement given (99-4-04)
On September 8, 1999, the San Antonio
Court of Appeals held that the defendant was not in custody at the time he gave
his written statement and therefore that defense counsel could not have been
ineffective in failing to file a motion to suppress the statement.
99-4-04. In the Matter of L.E.C., UNPUBLISHED, No. 04-98-00295-CV, 1999 WL
692639, 1999 Tex.App.Lexis ___ (Tex.App.—San Antonio 9/8/99)[Texas Juvenile
Law 272 (4th Edition 1996)].
Facts: A jury adjudicated L.E.C. delinquent for the felony offense of arson.
Appellant complains that the evidence submitted was legally and factually
insufficient to support his conviction and that his trial counsel rendered
ineffective assistance of counsel.
The evidence is undisputed that appellant started a fire that destroyed a
building at the Saddle Brook Apartments on January 4, 1996. The fire started in
the center of one of the apartment complex storage units and spread to at least
four apartments. The appellant was 14 years old. At the time of the fire, Marcos
Davila lived at the Saddlebrook Apartments, along with his mother. Davila
testified that on January 4, 1996 he went to his friend Carlos's house to play
video games. Carlos also lived at the Saddlebrook Apartments. Davila said that
before he arrived at Carlos's house he saw appellant in the storage room where
the fire was later started. Davila testified that, while he was inside Carlos's
house, he saw appellant run by a closed glass door. Davila said he went outside
after appellant ran by and saw a fire. The fire was in the same storage unit
where Davila had seen appellant before arriving at Carlos's house. Davila said
Carlos left after the fire started in order to show the maintenance man where
appellant threw a lighter. Julio Rodriguez, an arson investigator with the San
Antonio Fire Department, helped investigate the fire at the Saddlebrook
Apartments. Rodriguez said his job, among other things, was to determine whether
or not the fire was intentionally or accidentally set. When he arrived at the
scene, Rodriguez said he noticed the lead arson investigator, Jose Salame,
talking to a group of kids. Rodriguez testified the kids were telling Salame
about another kid who they had seen at the fire. Rodriguez said the kids pointed
to the appellant who was walking by so Salame decided he would talk to the
appellant while Rodriguez evaluated the fire scene. Rodriguez said that he took
pictures of the fire scene and searched for any possible evidence of a flammable
substance that may have been used to start the fire. He said the storage unit
contained a lot of flammable household items including plastic, wood, paper and
clothing material. Rodriguez testified that he looked at the electrical panels,
outlets and light fixtures for any accidental sources of ignition. He said these
sources all contained external damage. After eliminating any accidental sources
of ignition, Rodriguez testified that he and Salame gathered the eyewitness
information and determined that the fire had been intentionally set. He said the
origin of the fire was in the center of the storage unit.
On cross examination, Rodriguez testified that children often factor into the
determination of accidental causes. He said that children under the age of ten
are unaware of the consequences of starting a fire. However, he said appellant
was of the age to know exactly what he was doing. Rodriguez testified that he
"eliminated the doubts" when he made the determination that the fire
was intentionally set.
Jose Salame, a San Antonio arson investigator, testified that he responded to
the fire call at the Saddlebrook Apartments on January 4, 1996. Salame was the
lead investigator at the scene. When he arrived at the apartment complex, Salame
testified he approached the fire chief who pointed him to a group of kids.
Salame said he talked to Carlos Espinosa and Marcos Davila who were very
excited. Salame testified that Espinosa and Davila told him that they saw the
appellant at the scene of the fire. Salame said they told him that they had seen
appellant running away from the scene of the fire in a hurried fashion. Salame
said Espinosa told him that he saw appellant throw something into the bushes as
appellant was running away from the fire. Salame said that Espinosa told him he
looked into the bushes to see what appellant had thrown and found a cigarette
lighter. Salame testified that Espinosa and Davila later pointed out the
appellant at the scene as he was walking by with a woman.
At this point, Salame said he approached the appellant and asked the lady with
him if she was his mother. She said she was not appellant's mother and left to
get his grandmother instead. Salame then testified that he went to the
maintenance man and retrieved the lighter thrown into the bushes by appellant.
Salame said he inspected the lighter and it had a "pretty big flame."
After the appellant's grandmother was retrieved, Salame testified that he
attempted to speak with the appellant. He said the appellant was sitting inside
of a police car with the doors open and was not handcuffed when he attempted to
talk with him. Salame testified that at some point the appellant admitted that
he started the fire. Salame then testified that he and Rodriguez conducted a
fire scene investigation and that no accidental sources of fire were discovered.
He said there is a difference between an accidental source of a fire and a fire
that is caused by an accident. He said the fire in this case did not come from
an accidental source. According to Salame, in order to overcome accidental
causation one must act with more than mere preparation. He testified one would
have to go out of his way to start a fire and not just accidentally drop
something. Salalme said the storage space was about ten feet high and half-way
full. He said that based upon his interview with the appellant, questioning of
the witnesses and investigation of the fire scene, the fire was intentionally
set.
According to Salame, he made arrangements to have the appellant give a formal
statement instead of arresting him at the scene. Salame testified that on
January 8, 1996 the appellant and his grandmother came to the station to give a
statement. Salame said he told the appellant that he was not under arrest and
that he "just needed to know what happened." In fact, Salame testified
that he told the appellant he was not under arrest and would not be placed under
arrest on that day regardless of what he told them. Salame said appellant was
free to leave and terminate the interview at any time if he wanted. However,
Salame admitted he did not tell the appellant he was free to leave but did say
he could leave after the statement was given. He said the appellant's Miranda
rights were not read because the appellant was never under arrest, nor was he
ever in custody because handcuffs were never placed on him. Salame testified
that the appellant signed a written statement in which he admitted to lighting
the fire but that he "didn't mean to burn the building." On cross
examination, Salame reiterated that he spoke with the boys at the scene and they
pointed out the appellant as the one they saw leaving the fire. He testified the
boys told him the fire was "just starting" and "was not very
big" when they first saw it. He said it would be possible for a child to
light a piece of paper and have it accidentally burn his fingers causing him to
release it into a combustible room. However, Salame said the appellant never
told him anything like that when he questioned him. Salame testified that he
added words to the appellant's statement to make it understandable. Further, he
said he let the appellant and his grandmother read it before they signed it.
On re-direct, Salame testified that the appellant never mentioned anything about
his fingers being burnt when Salame questioned him. He said the appellant and
his grandmother were told they could change anything that was incorrect or
inaccurate about the statement but that they chose not to. On re- cross
examination, Salame testified that, in his opinion, the appellant wanted to
start a fire but did not realize it would get so big. He said the appellant
probably did not mean to destroy the whole building. He said the appellant had
to have known the fire would cause some damage. He said the appellant intended
to start a fire. On re-direct, Salame testified that the inspection of the fire
scene showed a general plan or intent to burn the storage space more than the
entire building. Carolyn McKenzie was a resident of the Saddlebrook Apartments
during the time of the fire. She testified that she knew the appellant because
appellant would occasionally come over to play with her son. McKenzie said she
was at home watching television at the time the fire started. She said she saw
the appellant standing in the door-way of the storage unit where the fire later
started. She said the door to the storage unit was open and she could see that
it was full of "clothes and junk." McKenzie testified that one would
not be able to walk into the middle of the storage unit without stepping over
everything inside. She said she asked appellant what he was doing, and appellant
said, "Nothing." McKenzie said she then walked off, telling the
appellant to behave as she left. McKenzie did not see the appellant again until
he was with his grandmother after the fire had been contained. McKenzie
testified that she saw no one else around the storage area on the day of the
fire. Michelle Chase is the appellant's mother. On cross examination, Chase
testified that, at the time of the fire, the appellant had several medical
problems. She said appellant had been diagnosed with attention deficit disorder
after the fire and often spent time with younger children. She said, as a
fourteen year old, her son had the learning capacity of an eleven year old.
Taking into account appellant's medical capabilities, Chase said she did not
think appellant had the ability to know that setting a fire in the storage unit
would burn the whole building down.
The state recalled Julio Rodriguez who testified that a separate determination
is made regarding accidental sources of a fire, and whether or not a fire was
accidentally or intentionally set. He said that, in this case, the fire came
from a non-accidental source. He said the storage unit measured approximately
"9 to 10 by 5 foot wide." He said that someone would have to climb
over three or four feet of materials in order to reach the center of the storage
unit. At this point, the state rested.
The defense began its case by contending that the appellant did not have the
requisite intent to destroy or damage the building. Michelle Chase, the
appellant's mother, testified that the appellant had been placed in special
education in January of 1996. Appellant took the stand and disputed the
testimony of the arson investigators who contended that he intentionally set the
fire. He said he was visiting with his grandmother the day of the fire and was
bored. He said he went over to visit a friend. Appellant's friend was not home
so he went to visit another friend who was also not home. At this point,
appellant said he began walking around and found a lighter. He said he started
playing with it and it worked. Appellant said he then went to the open storage
room and looked around inside for no particular purpose. He said it was full.
Appellant then picked up a piece of paper and lit it because he thought the
flame was "neat." He said the flame burned his hand so he threw it and
it quickly caught the other things on fire. Appellant said he then tried to put
the fire out by "stomping and patting" it. He said he could not stop
the fire from spreading so he ran to his grandmother's. Appellant admits to
later talking with the detective. However, he says the statement he gave to
Julio Salame was reworded by Salame. Nevertheless, appellant says he signed the
statement. At trial, appellant said he did not intend to destroy or damage the
apartment building. On cross-examination, appellant said he knew the storage
space did not belong to him. He said the stuff in the storage unit came up to
his chest. Nevertheless, he said he was looking around at the entrance and lit a
piece of paper he found inside. Appellant said he tried to "stomp" the
fire out with his foot and "pat" it out with his hand. He said he did
not see a doctor about the burn on his hand. The appellant admitted that there
was no mention of his hand being burned, either at the scene or when he made his
written statement. When asked why he threw the paper and did not simply drop it,
the appellant responded, "I don't know." The appellant testified that
he watched the fire burn for awhile before he tried to put it out. He also said
the written statement encompassed "pretty much everything" that
happened.
Held: Affirmed.
Opinion Text: SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant argues the evidence is legally and factually
insufficient to sustain his conviction. Because these require two different
standards, we take each in turn.
1. Legal Sufficiency
Legal sufficiency is the constitutional minimum required by the Due Process
Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson
v. Virginia, 443 U.S. 307, 315-16 (1979). In reviewing the legal sufficiency
challenge, we review the evidence in the light most favorable to the verdict and
determine whether any rational jury could have found the essential elements of
the offense proven beyond a reasonable doubt. In the Matter of A.C., 949 S.W.2d
388, 389 (Tex.App.--San Antonio 1997, no writ). The evidence is examined in the
light most favorable to the jury's verdict. Jackson, 443 U.S. at 320; Johnson v.
State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993). The standard is the same for
both a direct and circumstantial case, and the prosecution need not exclude
every other reasonable hypothesis except the guilt of the accused. Johnson, 871
S.W.2d at 186.
All the evidence is considered by the reviewing court, regardless of whether it
was properly admitted. Id.; Chambers v. State, 805 S.W.2d 459, 460
(Tex.Crim.App.1991); Thomas v. State, 753 S.W.2d 688, 695 (Tex.Crim.App.1988).
The jury is the trier of fact, and is the ultimate authority on the credibility
of witnesses and the weight to be given to their testimony. Penagraph v. State,
623 S.W.2d 341, 343 (Tex.Crim.App. [Panel Op.] 1981). It is for the jury as
trier of fact to resolve any conflicts and inconsistencies in the evidence.
Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982). Even where there is no
conflict, the jury may give no weight to some evidence, and thereby reject part
or all of a witness's testimony. See Beardsley v. State, 738 S.W.2d 681, 684
(Tex.Crim.App.1987); see also Chambers, 805 S.W.2d at 461 (holding jury as judge
of credibility may "believe all, some, or none of the testimony").
Because it is the province of the jury to determine the facts, any
inconsistencies in the testimony should be resolved in favor of the jury's
verdict in a legal sufficiency review. Johnson v. State, 815 S.W.2d 707, 712
(Tex.Crim.App.1991).
Appellant contends that the State presented inadequate evidence to support the
jury's finding that appellant possessed the requisite intent to damage or
destroy a habitation; the evidence merely demonstrated that appellant started
the fire and that the fire caused damage to a habitation. Viewing the entire
body of the evidence in the light most favorable to the verdict, the State's
evidence shows that: the storage unit was full of combustible material when the
appellant was seen loitering there; appellant was seen running away from the
fire after it started; appellant tried to dispose of the lighter which he had
used to start the fire; appellant denied having started the fire when he was
questioned about it on the evening it was started; appellant later gave a
written statement wherein he admitted having started the fire intentionally, but
denied any intent to damage the building; at trial, appellant claimed, for the
first time, that he tossed the burning paper only because it had burned his
hand; appellant admitted that he stood there and watched the fire get bigger for
some period after it started; although the middle of the storage unit was
covered with materials up to four feet high, appellant claimed to have tried to
"stomp" out the fire with his foot; and, arson investigators
determined that the fire was intentionally set. This evidence concerning the
acts, words and conduct of the appellant establishes that the fire was set with
the requisite intent to damage or destroy a habitation. See Romo v. State 593
S.W.2d 690, 690 (Tex.Crim.App.1980) (holding that it is well settled that,
intent can be inferred from the acts, words and conduct of the accused). We hold
that any rational trier of fact could have found the essential elements of arson
beyond a reasonable doubt. Because there is evidence sufficient to find all of
the elements of arson, we overrule the legal sufficiency challenge.
2. Factual Sufficiency
We now turn to whether the evidence was factually sufficient to sustain
appellant's conviction. In reviewing the factual sufficiency challenge, we
consider all of the evidence while being appropriately deferential to the jury's
verdict, and we will set aside the verdict only if the evidence is so contrary
to the overwhelming weight of the evidence as to be clearly wrong and unjust.
See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996); In the Matter of
A.C., 949 S.W.2d at 389-390. The factual sufficiency review process begins with
the assumption that the evidence is legally sufficient under the Jackson
standard. Clewis, 922 S.W.2d at 134. The appellate court then considers all of
the evidence in the record related to appellant's sufficiency challenge, not
just the evidence which supports the verdict. Id. The appellate court reviews
the evidence weighed by the jury which tends to prove the existence of the fact
in dispute, and compares it to the evidence which tends to disprove that fact.
Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). We reverse only
when the verdict is against the great weight of the evidence presented at trial
so as to be clearly wrong and unjust, i.e., when the jury's finding is
"manifestly unjust," "shocks the conscience," or
"clearly demonstrates bias." Clewis, 922 S.W.2d at 135 (citing Meraz
v. State, 785 S.W.2d 146, 149 (Tex.Crim.App.1990)).
In the instant case, appellant complains that the evidence submitted fails to
show he acted with the requisite intent to damage or destroy a habitation.
Considering the state of the record before us today, however, we cannot say this
verdict is manifestly unjust. Thus, we overrule the factual sufficiency
challenge.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue appellant complains that he was denied effective assistance
of counsel at trial guaranteed by the Sixth and Fourteenth Amendments to the
United States Constitution and article I, section 10 of the Texas Constitution.
Appellant contends that his counsel was ineffective for failing to file a motion
to suppress his confession. In Strickland v. Washington, 466 U.S. 668 (1994),
the United States Supreme Court established a two-pronged test in order to
obtain a reversal based on ineffectiveness of counsel under the Sixth Amendment.
Under Strickland, a convicted defendant must establish by a preponderance of
evidence that (1) counsel's representation was deficient, in that counsel made
such serious errors he or she was not functioning effectively as counsel; and
(2) counsel's deficient performance prejudiced the defense to such a degree that
the defendant was deprived of a fair trial. Id. at 687. With this in mind, a
strong presumption exists that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment. Id.
at 689; Banks v. State, 819 S.W.2d 676, 681 (Tex.App.-San Antonio 1991, pet
ref'd). The defendant must overcome the presumption that under the
circumstances, the challenged action "might be considered sound trial
strategy." Strickland, 466 U.S. at 689; Jackson v. State, 877 S.W.2d 768,
771 (Tex.Crim.App.1994). Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the ineffective assistance
claim. Strickland, 466 U.S. at 700. The Strickland standard has been adopted in
Texas for resolving allegations of ineffective assistance of counsel under both
the federal and state constitutions. See Hernandez v. State, 726 S.W.2d 53, 57
(Tex.Crim.App.1986); see also Washington v. State, 771 S.W.2d 537, 545
(Tex.Crim.App.1989).
Allegations of ineffective assistance will be sustained only if they are firmly
founded in the record which affirmatively demonstrates the alleged
ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996);
Banks, 819 S.W.2d at 681. In particular, the Texas Court of Criminal Appeals has
held that in order to prevail on a claim that counsel was ineffective for
failing to file a motion to suppress, an appellant must prove that the motion to
suppress would have been granted. Jackson v. State, 973 S.W.2d 954, 957
(Tex.Crim.App.1998).
At the time of the commission of the instant offense, Section 51.09(b) of the
Texas Family Code provided, in part, that: "The statement of a child is
admissible in evidence in any future proceeding concerning the matter about
which the statement was given if:(1) when the child is in a detention facility
or other place of confinement or in the custody of an officer, the statement
shows that the child has at some time prior to the making thereof received from
a magistrate a warning...." Appellant contends that, among those warnings
that must be given, the magistrate must tell the child his Miranda warnings,
that he has the right to terminate the interview at any time and that he has the
right to have an attorney present. Appellant relies chiefly on In re S.A.R., 931
S.W.2d 585 (Tex.App.--San Antonio 1996, writ denied), in support of his argument
that his motion to suppress would have been granted because he was in custody at
the time he gave his written statement. There, this court determined that the
following circumstances demonstrated S.A.R. was in custody at the time her
statement was given: S.A.R. was taken to the police station in a marked car,
placed in a small office where she was informed she was the primary suspect for
attempted capital murder and capital murder. The record also revealed that S.A.R.
was photographed and fingerprinted while at the station. In re S.A.R., 931
S.W.2d at 587. In the present case, evidence exists which distinguishes this
case from In re S.A.R. and shows that appellant was not in custody at the time
he made the statement in question. Detective Salame testified that appellant was
not under arrest and agreed to go to the police station. Importantly, the record
reflects that Salame made arrangements with the appellant and his grandmother to
have him give a written statement "at their convenience." Appellant's
grandmother voluntarily brought him to the station several days after the fire
to tell Salame about appellant's participation in the fire. If circumstances
show that the individual acts upon the invitation or request of the police and
there are no threats, express or implied, that he will be forcibly taken, then
that person is not in custody at that time. See Chambers v. State, 866 S.W.2d 9,
19 (Tex.Crim.App.1993); Dancy v. State, 728 S.W.2d 772, 778-79
(Tex.Crim.App.1987). Salame testified that appellant was free to leave whenever
he wanted, was free to change any wording on the written statement without fear
of reprisal from the police and was not placed in handcuffs.
Appellant has not established that he was in custody when he made the statement
or that he would have prevailed on a motion to suppress. See In re M.M.R., No.
04-97-00630-CV, slip op. at 3-7 (Tex.App.--San Antonio May 5, 1999, no pet. h.).
We therefore overrule Appellant's final issue and affirm the judgment of the
trial court.