Boyington v. State, 01-85-0114-CR

• Decision Date: 14 November 1985
• Docket Number: No. 01-85-0114-CR,01-85-0114-CR
• Citation: 738 S.W.2d 704
• Parties: Barron Lee BOYINGTON, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 704

738 S.W.2d 704

Barron Lee BOYINGTON, Appellant, v. The STATE of Texas, Appellee.

No. 01-85-0114-CR.

Court of Appeals of Texas Houston (1st Dist.).

Nov. 14, 1985.

Randy Schaffer, Houston, for relator-appellant.

John B. Holmes, Jr., Harris County Dist. Atty., Richard Anderson, Harris County Asst. Dist. Atty., Houston, for appellee.

Before WARREN, SAM BASS and DUNN, JJ., concur.

OPINION

WARREN, Justice.

Appellant was tried before a jury and convicted on an indictment of arson causing bodily injury. After finding a single enhancement paragraph true, the jury assessed the appellant's punishment at confinement in the Texas Department of Corrections for 50 years. Appellant brings four grounds of error alleging insufficiency of the evidence, fundamental error in the indictment, the submission of a special issue to the jury not alleged in the indictment, and ineffective assistance of counsel.

On August 24, 1984, appellant was indicted in Harris County for the offense of first degree arson with an enhancement paragraph. Tex.Penal Code Ann. sec. 28.02(c) and sec. 12.42(c) (Vernon Supp.1985). Appellant's subsequent motion to suppress a written confession was denied by the court.

At trial, the State introduced evidence showing that on August 12, 1984, at approximately 3:00 a.m., someone threw an incendiary firebomb, commonly called a "Molotov Cocktail," into the apartment dwelling of Robert Anderson and his family. The explosion set the apartment on fire and burned the legs of Anthony Anderson as he watched television and burned the hair, neck, and chest of Lee Anna Anderson as she was fleeing the burning apartment.

The testimony of Lee Anna Anderson showed that once she was outside her apartment, she saw a cross burning in the grass and three people driving away in a blue car. An arson investigator testified that he found the remains of a "Molotov Cocktail" about ten feet outside the apartment and smelled the odor of gasoline. He also found a charred white hood outside the front door and a cross burned into the grass.

An acquaintance of the appellant, Carol Legan, testified that at approximately 10:00 p.m. of August 12, 1984, the appellant admitted to her that he threw the firebomb into the Anderson apartment and made the cross on the grass. Appellant's written statement, signed by him on August 13, 1984, reflected that the appellant and two accomplices purchased gasoline at a convenience store, poured it into four wine bottles, put wicks in the tops of three bottles, and poured gasoline in the shape of a cross in front of the Anderson apartment. The appellant and his accomplices each lit a bottle, threw them into the apartment and then ran away.

Appellant's second ground of error claims that the evidence was insufficient to show that appellant intentionally, knowingly, or recklessly caused bodily injury to the complainants because the State introduced and failed to disprove appellant's exculpatory written statement reflecting only an intent to scare.

Appellant contends that the State is required to prove that he intentionally, knowingly, or recklessly caused bodily injury during the act of arson before the case can be elevated to a first degree felony. He further contends that since the only evidence showing appellant's state of mind was his unrefuted, exculpatory statement alleging that he only meant to scare the parties, that the State has failed in its proof.

First, an intention to cause bodily injury to persons is not a requisite to elevating an arson case to a first degree felony. Although, there are apparently no cases directly considering the elevation of an arson case from a second to first degree felony by reason of the victims sustaining bodily injury, the State cites comparable cases involving other crimes where it has been held that a culpable mental state as to the aggravating circumstance of injury was not necessary to elevate the offense.

Tex.Penal Code, sec. 28.02 provides:

(a) A person commits an offense if he starts a fire or causes an explosion with intent to destroy or damage any building, habitation, or vehicle:

(1) knowing that it is within the limits of an incorporated city or town;

(2) knowing that it is insured against damage or destruction;

(3) knowing that it is subject to a mortgage or other security interest (4) knowing that it is located on property belonging to another;

(5) knowing that it has located within it property belonging to another, or

(6) when he is reckless about whether the burning or explosion will endanger the life of some individual or the safety of the property of another.

A plain reading of the statute reveals no express or implied requirement of a culpable mental state.

Like statutes providing for the elevation of an offense to a higher degree when certain aggravating circumstances occur, have been held not to require a culpable mental state as to the aggravating circumstance.

Tex.Penal Code sec. 29.03 (Vernon 1974) provides that a person commits aggravated robbery if he commits robbery as defined in sec. 29.02 and in addition uses or exhibits a deadly weapon or causes serious bodily injury to another. The additional act of causing serious bodily injury or exhibiting a deadly weapon elevates the offense from a second degree felony to a first degree felony. In Bilbrey v. State, 594 S.W.2d 754 (Tex.Crim.App.1980) the court held that it was unnecessary to allege that the defendant intentionally and knowingly exhibited a deadly weapon in order to elevate the case from second to a first degree felony.

The Court of Criminal Appeals has also held that there is no necessity to allege a culpable mental state to raise the penalty for the offense of carrying a handgun on any premises licensed for the sale or service of liquor; and that allegation of the intent to carry a handgun is sufficient. Uribe v. State, 573 S.W.2d 819 (Tex.Crim.App.1978); Tex.Penal Code Ann. sec. 46.02(c) (Vernon 1974). In Taylor v. State, 632 S.W.2d 697 (Tex.App.--Ft. Worth 1982, pet. ref'd), appeal dism'd, 459 U.S. 1081, 103 S.Ct. 562, 74 L.Ed.2d 927 (1982), the court held that to establish the offense of first degree burglary, the State was only required to prove culpable mental state in the commission of the burglary, and was not required to prove culpable mental state in the commission of injury to another.

We hold that the State was not required to plead or prove a culpable mental state regarding appellant's injury to Anna Anderson.

This ground of error is overruled.

In his fourth ground of error appellant claims that he was denied effective assistance of counsel at trial and describes seven areas of the trial which equate with ineffective assistance of counsel.

The standard of "reasonably effective assistance of counsel" is used to test the adequacy of representation afforded an accused by appointed as well as retained counsel when the performance is to be judged by the sixth amendment right to assistance of counsel made applicable to the states by the fourteenth amendment and by the "right to be heard" provision of article I, section 10, Bill of Rights, Constitution of Texas. Ex parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980). In applying the standard of reasonably effective assistance, the adequacy of counsel's service must be gauged by the totality of the representation. Ex parte Raborn, 658 S.W.2d 602 (Tex.Crim.App.1983); Archie v. State, 615 S.W.2d 762 (Tex.Crim.App.1981). The constitutional right to counsel does not mean errorless counsel. Ex parte Robinson, 639 S.W.2d 953 (Tex.Crim.App.1982); Mercado v. State, 615 S.W.2d 225 (Tex.Crim.App.1981).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the Supreme Court outlined a two part approach to determine whether trial counsel rendered reasonably effective assistance. The appellant must first show that the trial counsel's performance was deficient. Second, the appellant must show that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial, a trial with a reliable result. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. 104 S.Ct. at 2068. Even if a defendant shows that particular errors of counsel were unreasonable, the defendant must go further and affirmatively show that they actually had an adverse effect on the defense. Id. at 2068.

In his attempt to show ineffective assistance of counsel, appellant contends that the trial counsel failed to object to the admission of appellant's written confession on the ground that it was the fruit of an unlawful warrantless arrest. Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982). The trial counsel did file a motion to suppress the appellant's written confession on the basis that the confession was involuntary. After listening to the testimony presented at the pre-trial hearing, the trial judge denied the motion to suppress. Now the appellant forcefully argues that the confession should have been excluded because it was the fruit of an unlawful arrest. It is clear that under the fourth amendment to the United States Constitution, a warrantless arrest of a person in his own home is per se unreasonable absent exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Texas, the authority to conduct a warrantless arrest is controlled exclusively by statute. Lott v. State, 686 S.W.2d 304 (Tex.App.--Houston [1st Dist] 1985, no pet.); Tex.Code Crim.P.Ann. art. 14.04 (Vernon 1977). Had the trial counsel raised in his motion to suppress that the defendant's warrantless arrest violated art. 14.04 of the Texas Code of Criminal Procedure, the state would have had to establish first, a showing of probable cause that a person has...