Bogan v. State

837 S.W.2d 422, 1992 Tex. App. LEXIS 2685, 1992 WL 289603
CourtCourt of Appeals of Texas
DecidedSeptember 16, 1992
Docket09-91-227 CR
StatusPublished
Cited by4 cases

This text of 837 S.W.2d 422 (Bogan v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bogan v. State, 837 S.W.2d 422, 1992 Tex. App. LEXIS 2685, 1992 WL 289603 (Tex. Ct. App. 1992).

Opinion

OPINION

WALKER, Chief Justice.

This is an appeal from a conviction for the felony offense of Arson. The trial took place August 28-29, 1991. Following the guilty verdict by the jury, the trial court assessed appellant’s punishment at ten (10) years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Imposition of the sentence was suspended by the trial court and appellant was placed on probation for ten (10) years. The trial court also imposed a fine of $2500. On appeal, this Court is presented with four points of error, viz:

Point of Error One: The evidence was insufficient to support the conviction in that the evidence failed to establish that appellant set the fire.
Point of Error Two: The trial court erred in admitting evidence of an extraneous offense, to wit: Assault.
Point of Error Three: The trial court erred in admitting evidence of the results of investigations in other arson cases. Point of Error Four: Reversible error occurred when the prosecutor made an improper argument before the jury.

Appellant’s initial point complains of insufficient evidence to sustain the conviction, therefore a recitation of the facts presented to the jury is in order. On April 25, 1990, a fire completely destroyed the home of appellant and his wife, Janet Dor-ene Bogan. Because of marital difficulties, Mrs. Bogan had moved out of the house on April 15, 1990. On that date, Mrs. Bogan moved in with her daughter by a previous marriage, Terri Petitt. Mrs. Bogan returned to her house the next day to gather some personal belongings. She testified that a great many items belonging to her were left in the house. Mrs. Bogan further testified that these items were her separate personal property acquired prior to her marriage to appellant. These items were totally lost in the fire.

During the day of April 25, 1990, Mrs. Bogan had several telephone conversations with appellant. During these conversations, appellant attempted to get Mrs. Bo-gan to move back home with appellant. Appellant also wanted Mrs. Bogan to go out to dinner with him that evening. For whatever reason, appellant and Mrs. Bogan did not make connections for dinner on the evening of April 25. At approximately 9:00 p.m. that evening, Mrs. Bogan returned to her daughter’s house after having had dinner with a lady-friend. As Mrs. Bogan started to exit her vehicle, appellant approached, opened the driver’s door and pulled Mrs. Bogan out. Appellant demanded to know if Mrs. Bogan was going home with him. Mrs. Bogan told appellant that she was not going home with him. Appellant replied, “Well, then your (sic) a dead motherfucker.” Appellant then began to strike Mrs. Bogan about the head and upper body and attempted to drag Mrs. Bo-gan down the driveway to appellant’s truck.

Mrs. Bogan testified that at one point during this violent encounter, appellant stated, “You’re dead. You may as well stop fighting. You’re not going to — You either come home or you are not going to have one to come home to.” Mrs. Bogan further testified that appellant stated that he was “going to bum the damned house down_” As appellant shoved Mrs. Bo-gan into his truck, Mrs. Bogan managed to engage the truck’s horn. The sound of the horn caused Mrs. Bogan’s daughter, Terri, to ran out of the house and rescue Mrs. Bogan. Mrs. Bogan was then able to run into her daughter’s house.

*424 On cross-examination, Mrs. Bogan testified that at the time of the fire, the house was paid for, and that there was no insurance coverage on the house. She further stated that no insurance benefits had been paid to her or appellant to her knowledge. Furthermore, the house was not located within the city limits of any city; and the land upon which the house was situated was owned by appellant and Mrs. Bogan.

Terri Petitt testified that when she heard the horn, she looked out the door and observed appellant’s truck parked behind her mother’s car. Ms. Petitt stated that she ran out of her house and saw appellant hitting her mother with his fist. Ms. Petitt managed to pull appellant off her mother and got her mother out of the truck. Ms. Petitt described appellant as “out of control. He was out of breath. He had blood on him.” And although Ms. Petitt did smell alcohol on appellant’s breath, appellant did not appear intoxicated to her. Ms. Petitt stayed outside with appellant while her mother went into the house. Ms. Petitt talked to appellant in an attempt to calm him down. During the course of their conversation, appellant gave Ms. Petitt a message to give to Mrs. Bogan: “He had told me to tell her if she wasn’t home in 24 hours she was dead and that he said that he was going to bum the house down. And when I asked him why he wanted to say something like that he said, [‘] leave her penniless and on the streets.[’]” Appellant then left Ms. Petitt’s house at approximately 9:40 p.m. Ms. Petitt testified that the drive from her house located on Mapes Street in Beaumont, to appellant’s house on Walden Road was less than a ten minute drive.

Appellant’s brother-in-law, Eugene Lee, testified that he and his wife, the sister of appellant, live approximately a third of a mile from appellant’s house on Walden Road. On the night of April 25, Mr. Lee and his wife reported the fire to the China Fire Department at approximately 10:05 p.m. The Lees also walked over to the scene of the fire as they were concerned that appellant may have been in the house at the time of the fire. The firefighters did not find anyone in the charred remains of the house. Mr. Lee testified that he did not see appellant until around 9:00-10:00 a.m. the next morning when appellant came by to get keys to a pickup truck. Mr. Lee could not remember if appellant responded in any way regarding the fire. The Lees did inform appellant that the authorities were looking for him (appellant).

Through their next witness, Glenn Hamm, a former Investigator for the Jefferson County Sheriff’s Office, the State introduced into evidence a statement by appellant given to Sheriff’s Deputies the afternoon of April 26, 1990 at the Sheriff’s Office. The statement is essentially exculpatory in nature with the following portions being applicable to the instant discussion:

Upon returning to the residence I backed my Ford pickup truck into the garage because I had some equipment in the back that I didn't want to get wet.
As I opened the back door of my house which leads into the wash room, I saw that the house was on fire. Flame (sic) leaped out at me and I turned and ran. The fire had burned some of my hair on my face and arms. From there I ran over to my stepfather’s house, which is next door to my residence to call the Fire Department. My stepfather is in a nursing home and no one lives there. I attempted to call the Fire Department to let them know that my house was on fire but the phone would not work. I don’t know how long the phone has been out. At that time I passed out. I had been drinking whiskey since about 6:00 p.m. when I went home to change clothes. I had probably drank about 5 or 6 drinks. I woke up the next morning approximately 10:00 a.m. and went by my house. I looked around and surveyed the damage. I then got on my stepdads (sic) tractor and drove to my sister’s house, which is located just a short distance from my house, and got the keys to my stepfather’s truck. I then drove to Autolet (sic) Tractor and purchased a part.

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Bluebook (online)
837 S.W.2d 422, 1992 Tex. App. LEXIS 2685, 1992 WL 289603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bogan-v-state-texapp-1992.