Carter v. State

753 S.W.2d 432, 1988 Tex. App. LEXIS 1295, 1988 WL 54564
CourtCourt of Appeals of Texas
DecidedMay 31, 1988
DocketNo. 13-87-131-CR
StatusPublished
Cited by7 cases

This text of 753 S.W.2d 432 (Carter 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
Carter v. State, 753 S.W.2d 432, 1988 Tex. App. LEXIS 1295, 1988 WL 54564 (Tex. Ct. App. 1988).

Opinion

OPINION

NYE, Chief Justice.

Appellant was charged with attempted murder and aggravated assault. The jury found appellant guilty of aggravated assault. The court assessed punishment at ten years confinement and restitution of $134,499.20. Appellant contends the trial court should have granted a new trial on the basis of jury misconduct and insufficient evidence to sustain the conviction.

By his second point of error, appellant contends that the evidence was insufficient to support the conviction. The standard for review of the sufficiency of the evidence, whether circumstantial or direct, is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 673 S.W.2d 190, 195 (Tex. Crim.App.1984); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983). In determining the sufficiency of the evidence to sustain a criminal conviction, we consider all of the evidence and view the facts of the case in the light most favorable to the verdict. Castillo v. State, 739 S.W.2d 280, 288 (Tex.Crim.App.1987). Inadmissible hearsay admitted without objection possesses probative value and is considered in determining sufficiency of the evidence. Chambers v. State, 711 S.W.2d 240, 245-247 (Tex.Crim.App.1986); Gayle v. State, 713 S.W.2d 425, 427 (Tex.App.—Houston [1st Dist.] 1986, no pet.).

The record reflects that appellant and the victim, Hunt, were working alone in a mechanic shop late one evening. While Hunt was underneath a truck, he was [434]*434doused with gasoline and ignited. He suffered second and third degree burns over 52% of his body.

A person commits the offense of aggravated assault if he intentionally, knowingly, or recklessly causes serious bodily injury to another. Tex.Penal Code Ann. §§ 22.01, 22.02 (Vernon 1974). The jury charge only contained the intentional and knowing mental states. Appellant contends the evidence is insufficient to prove he intentionally and knowingly caused serious bodily injury to the victim because he did not admit he intentionally caused bodily injury and the victim did not testify that he saw appellant throw the gasoline.

For purposes of proving guilt beyond a reasonable doubt, direct and circumstantial evidence are equally probative. Hankins v. State, 646 S.W.2d 191, 199 (Tex.Crim.App.1981). Intent may be inferred from acts, words, and conduct of the accused and may be determined by the trier of fact from all the facts and circumstances. Romo v. State, 593 S.W.2d 690, 693 (Tex.Crim.App.1980); Markham v. State, 635 S.W.2d 153, 156 (Tex.App.—San Antonio 1982, no pet.).

Hunt testified he was working underneath a truck when he heard appellant behind him, “Then, I turned around to look, and when I turned around to look, I got doused with gasoline and a lighter threw at me, and it was too late to move.” Hunt testified that he did not actually see appellant throw the gasoline, but he could see appellant’s feet and part of his body, and “[t]hen that gasoline hit me and I heard that lighter flick and I knew I was in trouble.” After the flick of the lighter, there was an explosion and he was on fire from his waist up to his ear.

As Hunt tried to get out from underneath the truck, he sought appellant’s help but appellant “was just laughing.” Hunt went to the restroom to try to put out the fire and heard appellant threatening him. He saw appellant running to the front of the shop. He followed him. He saw appellant running to the front of the shop. He followed him. At this point, Hunt realized he needed to get help for himself, so he got into his auto and headed towards town. He came upon a stopped police car with flashing lights. The police assisted him and called for emergency assistance.

Winkle, a detective investigator, talked to Hunt while he was awaiting the arrival of the emergency ambulance. Hunt told him that appellant had burned him. Winkle went to the premises of the fire and saw a cigarette lighter on the burned area.

A chemist’s report was admitted into evidence which said trace amounts of flammable petroleum residues consistent with gasoline were found in the victim’s shirt and the victim’s underwear.

Burney, appellant’s estranged wife and Hunt’s girlfriend, testified that she, Hunt, and appellant had eaten dinner the evening of the incident. She said appellant asked Hunt to work with him on his truck that evening and Hunt agreed. In the past she would often go to the shop with them, but on that evening she did not go because appellant asked her to find something else to do. Burney testified that on one occasion appellant had said that Hunt “had burned him several occasions and he’d never get to do that again and that he would bum him one of these days.”

Two witnesses testified appellant had made threats about harming Hunt. One witness remembered that appellant had said, “before Hunt burned him he would bum Hunt.”

Appellant admitted that he splashed Hunt with gasoline. However, he contended that he was walking with a cup of gasoline in his hand and as he turned around, he stumbled over his feet and fell flat on the floor, spilling the gasoline from the cup. He saw the fire start, he became frightened, and he ran out of the shop. He denied igniting the lighter and pouring gasoline on anyone. He said, “I did it, but as an accident.”

The jury, being the judges of the fact and credibility of the witnesses, can choose to believe or not believe witnesses or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986); Barros v. State, 661 S.W.2d 337, 340 (Tex. [435]*435App.—Corpus Christi 1983, no pet.). We find that the evidence was sufficient that appellant’s act was intentionally and knowingly committed. See Klein v. State, 662 S.W.2d 166 (Tex.App.—Corpus Christi 1983, no pet.). Viewing the evidence in the light most favorable to the verdict, we conclude the cumulative force of all the facts and circumstances is sufficient to allow a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Appellant’s second point of error is overruled.

The most serious problem in this case is pointed out in appellant’s first point of error. Here, he contends a new trial should have been granted because after retiring to deliberate, the jury conducted an experiment and considered other evidence not introduced during the trial. Tex. R.App.P. 30(b)(7). When the jury has performed an experiment, a new trial is required if there is a showing that a new fact, detrimental to the defendant was discovered by the experiment which influenced the jury. Douthit v. State,

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Bluebook (online)
753 S.W.2d 432, 1988 Tex. App. LEXIS 1295, 1988 WL 54564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-state-texapp-1988.