COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-476-CR
LESTER
JAY HENDERSON A/K/A APPELLANT
LESTER
J. HENDERSON
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 372ND DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
I. Introduction
A
jury convicted Appellant Lester Jay Henderson of the offense of arson and
assessed punishment at twenty-six years’ confinement. In three points,
Henderson challenges the legal and factual sufficiency of the evidence and the
admission into evidence of a typed, formal confession at the punishment
phase. We will affirm.
II. Factual
History
On
the morning of October 23, 2002, multiple witnesses employed at the Meadowbrook
United Methodist Church observed an individual, later identified as Henderson,
standing in a church doorway. Henderson was holding two metal drip pans filled
with gasoline. A bucket on the ground beside him contained gasoline and
fuel oil soaked sand, eleven aerosol cans, and a container of gasoline with a
piece of cloth protruding from it that had been soaked in gasoline as
well. Upon noticing Henderson and smelling the strong odor of gasoline,
witnesses asked him what he was doing, informed him that he did not belong
there, and told him to leave immediately. Henderson responded by saying
that he was going to start a fire and that he wanted to talk to the media.
Witnesses again urged Henderson to leave, and he once again exclaimed his intent
to start a fire. He then lit the metal drip pan containing gasoline by
using a lighter, and a fire resulted.
Witnesses
responded to the fire by calling 911 and by evacuating numerous children located
in the room connected to the doorway where Henderson had been standing.
Henderson fled the church, and police subsequently apprehended him.
Investigators later determined that the combination of items in Henderson’s
possession constituted an incendiary device.
Henderson
pleaded not guilty to the charge of arson. A jury subsequently convicted
him, and this appeal followed.
III. Legal and
Factual Sufficiency of the Evidence
In
his first and second points, Henderson challenges the legal and factual
sufficiency of the evidence, arguing that the evidence before the jury was
insufficient to support his conviction for arson.
A.
Standards of Review
In
reviewing the legal sufficiency of the evidence to support a conviction, we view
all the evidence in the light most favorable to the verdict in order to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Burden v. State, 55
S.W.3d 608, 612 (Tex. Crim. App. 2001). This standard gives full play to
the responsibility of the trier of fact to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
When performing a legal sufficiency review, we may not sit as a thirteenth
juror, re-evaluating the weight and credibility of the evidence and, thus,
substituting our judgment for that of the fact finder. Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529
U.S. 1131 (2000).
In
contrast, in reviewing the factual sufficiency of the evidence to support a
conviction, we are to view all the evidence in a neutral light, favoring neither
party. See Zuniga v. State, No. 539-02, 2004 WL 840786, at *4 (Tex.
Crim. App. Apr. 21, 2004). The only question to be answered in a factual
sufficiency review is whether, considering the evidence in a neutral light, the
fact finder was rationally justified in finding guilt beyond a reasonable
doubt. Id. at *7. There are two ways evidence may be
factually insufficient: (1) the evidence supporting the verdict or judgment,
considered by itself, is too weak to support the finding of guilt beyond a
reasonable doubt; or (2) when there is evidence both supporting and
contradicting the verdict or judgment, weighing all of the evidence, the
contrary evidence is so strong that guilt cannot be proven beyond a reasonable
doubt. Id. “This standard acknowledges that evidence of
guilt can ‘preponderate’ in favor of conviction but still be insufficient to
prove the elements of the crime beyond a reasonable doubt.” Id.
In other words, evidence supporting a guilty finding can outweigh the contrary
proof but still be insufficient to prove the elements of an offense beyond a
reasonable doubt. Id.
In
performing a factual sufficiency review, we are to give deference to the fact
finder’s determinations, including determinations involving the credibility
and demeanor of witnesses. Id. at *4; Cain v. State, 958
S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not substitute our judgment
for that of the fact finder’s. Zuniga, 2004 WL 840786, at *4.
A
proper factual sufficiency review requires an examination of all the
evidence. Id. at *7, 9. An opinion addressing factual
sufficiency must include a discussion of the most important and relevant
evidence that supports the appellant’s complaint on appeal. Sims v.
State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
B.
Evidence Is Legally And Factually Sufficient
The
trial court’s charge to the jury instructed them as follows:
A person commits the 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 a building, and the property intended to be damaged or
destroyed by the actor was a place of worship:
(A)
knowing that said building is within the limits of an incorporated city or town;
OR
(B)
knowing that said building is located on property belonging to another; OR
(C)
knowing that said building has located within it property belonging to another;
OR
(D)
when the person is reckless about whether the burning or explosion will endanger
the life of some individual or the safety of the property of another.
See
Tex. Penal Code Ann. § 28.02
(Vernon 2003). Under the current statute, the “offense [is] complete whenever
the actor starts a fire with the requisite culpable mental state, whether or not
damage of any kind actually occurs.” Romo v. State, 593 S.W.2d
690, 693 (Tex. Crim. App. [Panel Op.] 1980), overruled on other grounds by
Wagner v. State, S.W.2d 303, 313 (Tex. Crim. App. 1984).
Three
employees of the Meadowbrook United Methodist Church testified that Henderson
was in the church and that he had in his possession two metal drip pans and a
bucket with various items in them. The bucket contained sand moistened by
gasoline and fuel oil, eleven aerosol cans, and a container of gasoline with a
gasoline-soaked cloth extending out of the container. When approached by
two of the witnesses, Henderson twice proclaimed his intent to start a
fire. He then ignited the gasoline in the metal drip pan with a lighter.
Henderson
was aware of his surroundings and his location. He chose to stand in a
doorway of a church leading to a preschool classroom. The classroom
contained one teacher and six children at the time of the incident. Knowing
this, he nevertheless ignited his concoction, causing a flame to arise and a
strong odor to fill the area. Fort Worth arson investigator E.C. Rodriguez
testified that the combination of items, including the bucket, gas can, and
liquid emitting a strong odor, constituted an incendiary device.
Moreover,
Article 28.02(d) of the Texas Penal Code states that “the offense is a felony
of the first degree if it is shown on the trial of the offense that . . . the
property intended to be damaged or destroyed by the actor was a habitation or a
place of assembly or worship.” Tex. Penal Code Ann. §
28.02(d)(2). The trial court’s language in its charge to the jury
mirrored this portion of the penal code. Here, through the testimony of
multiple witnesses, the State established that Meadowbrook United Methodist
Church is a place of worship, and accordingly, met its burden on this element.
Thus,
viewing the evidence in the light most favorable to the verdict, we hold that a
rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Burden, 55 S.W.3d at 612. Furthermore, viewing all the evidence in
a neutral light, favoring neither party, we also conclude that the evidence
supporting the verdict, taken alone, is not too weak to support the finding of
guilt beyond a reasonable doubt and that the contrary evidence is not so strong
that guilt cannot be proven beyond a reasonable doubt. Accordingly, we
hold that the evidence is both legally and factually sufficient to support
Henderson’s conviction for arson. Zuniga, 2004 WL 840786 at *7; see
also Loredo v. State, 130 S.W.3d 275, 280 (Tex. App.—Houston [14th Dist.]
2004, no pet.); Graham v. State, 96 S.W.3d 658, 661-62 (Tex.
App.—Texarkana 2003, pet. ref’d); Wheeler v. State, 35 S.W.3d 126,
133-36 (Tex. App.—Texarkana 2000, pet. ref’d). We overrule
Henderson’s first and second points.
IV.
Admissibility of Confession
In
his third point, Henderson alleges that the trial court erred by overruling the
motion to suppress his second, typed confession. The State introduced two
written statements at the punishment phase of the trial. Henderson hand
wrote the first statement after having been read his rights. Henderson
made a second, more formal, typed statement within an hour of the first
statement after the interrogating detective asked Henderson if he could
elaborate on a few points in the first statement. The detective typed the
statement as Henderson spoke. The detective did not give Henderson the
warnings found in Code of Criminal Procedure article 38.22, section 2 before
transcribing the second statement.
Henderson
complains that the second statement was improperly admitted because, even though
he received Miranda warnings before he provided the first, hand-written
statement, he did not receive them before he provided the second, typed
statement. Henderson argues, “A second formal statement was taken from
the Defendant in violation of TEX. CODE CRIM. P. ART. 38.22 V.A.T.S. in that the
detective did not give the Defendant his Miranda warnings. The record is
clear that the detective did not bother to read the Defendant his Miranda
warnings in the second, formal typed statement.” Thus, Henderson alleges
a violation of article 38.22, section 2 of the Texas Code of Criminal
Procedure. See Tex. Code
Crim. Proc. Ann. art. 38.22 § 2 (Vernon 1979).2
A.
Standard of Review
When
reviewing a motion to suppress, the evidence must be viewed in the light most
favorable to the trial court’s ruling. See Villarreal v. State, 935
S.W.2d 134, 138 (Tex. Crim. App. 1996). Voluntariness is determined by looking
at the totality of the circumstances. See Griffin v. State, 765
S.W.2d 422, 427 (Tex. Crim. App. 1989). Once a defendant moves to suppress
a statement on the ground of involuntariness, the due process guarantee requires
the trial court to hold a hearing on the admissibility of the statement outside
the presence of the jury. See Jackson v. Denno, 378 U.S. 368, 380,
84 S. Ct. 1774, 1782-83 (1964). At the hearing, the trial court is the
sole judge of the weight and credibility of the evidence, and the trial court's
finding may not be disturbed on appeal absent a clear abuse of discretion.
See Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995).
As such, abuse of discretion is the appropriate standard of review for
challenges to the trial court’s admission of evidence. See Angleton
v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998).
B.
Second Statement Was Admissible
Article
38.22, section 2(a) provides that
(a)
the accused, prior to making the statement, either received from the magistrate
the warning provided in Article 15.17 of this code or received from the person
to whom the statement is made a warning that:
(1)
he has the right to remain silent and not make any statement at all and that any
statement he makes may be used against him at his trial;
(2)
any statement he makes may be used as evidence against him in court;
(3)
he has the right to have a lawyer present to advise him prior to and during any
questioning;
(4)
if he is unable to employ a lawyer, he has the right to have a lawyer appointed
to advise him prior to and during any questioning; and
(5)
he has the right to terminate the interview at any time;
Tex. Code Crim. Proc. Ann. art. 38.22 §
2(a). The State argues that Henderson’s second statement was admissible
because his rights were read to him both at the scene of the crime and by the
interviewing detective prior to the first statement. Furthermore, the
State points out that Henderson’s rights were listed at the top of the second
statement, were initialed by him, and that “there was no constitutional
requirement that the warnings be repeated.”
The
law is settled that a mere pause in police questioning does not require
additional warnings. See Dunn v. State, 721 S.W.2d 325, 338 (Tex.
Crim. App. 1986) (holding “rewarning is not required where the interrogation
is only a continuation about the same offense”), abrogated on other grounds
by Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997); Burruss
v. State, 20 S.W.3d 179, 183-84 (Tex. App.—Texarkana 2000, pet. ref’d)
(holding that pause in interrogation did not require rewarning); Franks v.
State, 712 S.W.2d 858, 861 (Tex. App.—Houston [1st Dist.] 1986, pet.
ref’d) (holding that, following a pause in the interrogation, new warnings
were not required). A rewarning may be necessary when a significant time
lapse occurs between the initial and subsequent questioning, a different subject
matter is discussed in a subsequent interview, and the authorities “acted so
as to dilute the efficacy of the warning” previously given. See
United States v. Hopkins, 433 F.2d 1041, 1045 (5th Cir. 1970), cert.
denied, 401 U.S. 1013 (1971).
Here,
the trial court held a Jackson v. Denno hearing and concluded that
Henderson received his Miranda warnings on October 23, 2002 shortly after
10:00 a.m. as required by article 38.22 and acknowledged receipt of those
warnings by signing the warning sheet. The court further found that
Henderson then provided a hand-written statement, which he completed at 11:00
a.m. Less than an hour later, at 11:53 a.m., Henderson clarified his first
statement by providing a second statement typed by Detective Bruno. After
giving this second statement, Henderson initialed each paragraph of the
statement, initialed below the Miranda warnings, and signed the
statement. The court concluded the second statement was not inadmissible
under article 38.22, stating:
I understand your concern, Mr. St. John [Henderson’s counsel], of the warning
and then hours or days later a statement being taken, but there are two
statements completed within an ongoing period of time, all within barely a
two-hour time limit, and from the evidence before the Court, this is one kind of
continued conversation, and the law doesn’t require you to read someone their
rights every time you speak to them if it’s an ongoing interview.
We
hold that the strict requirements of article 38.22, section 2 did not require
Henderson to be verbally rewarned prior to giving the second statement. See
Tex. Code Crim. Proc. Ann. art.
38.22 § 2. The time elapsed between Henderson’s two statements is
minimal. Moreover, Henderson initialed each paragraph and the warnings
found on the face of the second statement. Henderson signed the statement
and indicated that everything was true and correct in the statement.
Detective Bruno interviewed Henderson before and after the pause in the
interrogation, and the record is devoid of any evidence that he “acted so as
to dilute the efficacy of the warning” previously given by him. See
Hopkins, 433 F.2d at 1045. Henderson’s second statement was made in
the course of an ongoing interview so verbal warnings need not have been
repeated prior to the second statement. See Dunn, 721 S.W.2d at
338; Franks, 712 S.W.2d at 861.
Viewing
the evidence in the light most favorable to the ruling, we hold that the trial
court did not abuse its discretion in admitting Henderson’s second
statement. See Villarreal, 935 S.W.2d at 138; Alvarado, 912
S.W.2d at 211; Griffin, 765 S.W.2d at 427. We overrule
Henderson’s third point.
V. Conclusion
Having
overruled all of Henderson’s points, we affirm the trial court’s judgment.
PER
CURIAM
PANEL
F: WALKER, HOLMAN, and GARDNER, JJ.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
October 7, 2004
NOTES
1.
See Tex. R. App. P. 47.1.
2.
A confession may be deemed “involuntary” under three different theories: (1)
failure to comply with Article 38.22, (2) failure to comply with the dictates of
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), or (3) a
confession in violation of due process or due course of law because it was not
freely given. Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App.
1996).