Lane v. State

621 S.W.2d 172, 1981 Tex. Crim. App. LEXIS 1143

• Court: Court of Criminal Appeals of Texas
• Decided: September 23, 1981
• Docket: 63199
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

In the early morning hours of October 28, 1978, Edward Hamilton was awakened by the odor of smoke and discovered flames arising from the garage area of his house. An investigation of the incident revealed that the fire started in Hamilton’s boat which was parked adjacent to the garage. Evidence recovered following the fire indicated that the boat had been ignited by a road flare. The appellant, who had told friends that he had thrown a flare into Hamilton’s boat intending to burn out the seats, was indicted for the offense of criminal mischief over $10,000. The indictment charged that the appellant did:

“knowingly and intentionally damage and destroy tangible property, namely: one boat, one house and furnishings, without the effective consent of Edward E. Hamilton, the owner; the said damage and destruction amounting to a pecuniary loss of over $10,000.”

The appellant was found guilty of the charged offense and sentenced to thirteen years’ confinement in the Texas Department of Corrections.

By his first ground of error the appellant contends that the trial court erred when it overruled his motion to quash the indictment. Specifically the appellant asserts that the indictment’s description of the damaged house was insufficient because the State failed to allege the property’s general location within the county. Article 21.09, V.A.C.C.P. requires the State to describe real estate alleged in an indictment by identifying the owner, occupant or claimant of the property and its general locality in the county. See Green v. State, 578 S.W.2d 411 (Tex.Cr.App.1979). In the instant case the State failed to comply with the latter requirement. This defect in the description of the alleged real estate was properly raised by the appellant’s motion to quash. In the face of this motion the indictment was insufficient. Haworth v. State, 74 Tex.Cr. 488, 168 S.W. 859 (1914) (motion to quash should have been sustained because indictment failed to describe the alleged real estate by showing in what part of the county the property could be found). The appellant’s ground of error is sustained.

The appellant also contends that the evidence was insufficient to support the jury’s finding of guilt. Even though we have found reversible trial error we must still address this challenge to the sufficiency of the evidence because such a ground would bar a retrial. Rains v. State, 604 S.W.2d 118 (Tex.Cr.App.1980); Swabado v. State, 597 S.W.2d 361 (Tex.Cr.App.1980).

The appellant contends that independent of his extrajudicial admission

* the evidence adduced at trial was insufficient to prove that the alleged property was designedly set on fire. It is well established that in a prosecution for arson the State must prove that the fire involved was of an incendiary origin, and an extrajudicial confession alone is insufficient to establish this requisite element of the offense. The appellant asserts that these “rules governing arson also govern criminal mischief prosecutions” when the damage or destruction was caused by fire. We find no support for the appellant’s assertion. But even if the instant prosecution was governed by the “rules of arson,” we hold that the evidence was sufficient to support the jury’s verdict. A white residue composed of a mixture of several chemicals was recovered from the boat where the fire originated. Dr. Stone, chief of the Physical Evidence Section at the Institute of Forensic Sciences, testified that these chemicals were not consistent with the residue left by burned wood, petroleum or fiberglass but were virtually identical to the chemical residue left by a burned road flare. Dr. Stone further testified that the chemicals he examined were normally found in road flares and that he did not know of any other objects or devices that would contain these same compounds. This evidence, combined with the appellant’s extrajudicial admission, was sufficient to prove that the fire was of an incendiary origin. The appellant’s ground of error is overruled.

The judgment is reversed and the cause is remanded.

Before the court en banc.

STATE’S MOTION FOR REHEARING WITHOUT WRITTEN OPINION

Steven Willingham testified that he had the following conversation with the appellant a month after the offense:

“A. I said, ‘How did you do it? Did you torch the roof?’ And he goes, ‘Well, I threw a flare into the boat ... and then it caught the house on fire.’ ”