Cacy v. State, 08-93-00085-CR

• Decision Date: 11 May 1995
• Docket Number: No. 08-93-00085-CR,08-93-00085-CR
• Citation: 901 S.W.2d 691
• Parties: Sonia CACY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 691

901 S.W.2d 691

Sonia CACY, Appellant, v. The STATE of Texas, Appellee.

No. 08-93-00085-CR.

Court of Appeals of Texas El Paso.

May 11, 1995.

Discretionary Review Refused Sept. 13, 1995.

Robert V. Garcia, Jr., Odessa, for appellant.

Albert G. Valadez, Dist. Atty., Fort Stockton, for State/appellee.

Before BARAJAS, C.J., and KOEHLER and LARSON, JJ.

OPINION

BARAJAS, Chief Justice.

We withdraw our opinion and judgment of March 9, 1995, and substitute the following therefor.

Sonia Cacy appeals her conviction for the offense of murder. On April 16, 1992, a Pecos County grand jury indicted Appellant for the murder of William R. Richardson. On February 26, 1993, a jury found Appellant guilty and assessed punishment at 55 years' confinement in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000, whereupon the trial court entered judgment in accordance with the jury's findings. We affirm the judgment of the trial court in part, reverse in part, and remand the cause for new sentencing proceedings.

I. SUMMARY OF THE EVIDENCE

On October 1, 1991, Appellant moved into the Fort Stockton, Texas residence of Richardson, her uncle and stepfather. Sometime in October, a fire broke out on the back porch to the residence. Although both Appellant and Richardson knew of the fire, neither immediately reported it to the fire department. The record contains no evidence about the extent of the damage caused by this initial fire.

On November 2, 1991, at 3:18 a.m. the police and fire authorities responded to a second fire at the Richardson's home. The fire occurred in the room used by Richardson as his office and was extinguished by Fort Stockton Police Officer Armando Villesca with the use of a garden hose. Officer Villesca doused the fire through an open window that opened with a crank mechanism which could only be operated from inside the office. After the fire was extinguished, Fire Chief Jimmy Jackson investigated its cause and identified a box containing electrical equipment as the cause of the blaze. Jackson theorized that the box ignited adjacent curtains which fell from their brackets, thereby largely eliminating the blaze. Jackson initially suspected an intruder had set the fire but eliminated that hypothesis after finding the back door undisturbed and after seeing cash and firearms in plain view inside the office.

At 6:20 a.m. on the same date, authorities responded to a third fire at the Richardson home. Although more severe than the second fire, the third fire occurred in a detached garage building used as a storage room. Present that morning during the investigation of the third fire was Fire Marshall Frank Salvato, who took the opportunity to question Richardson about the second fire. Richardson told Salvato that he had attempted to extinguish it with a fire extinguisher that hung in the office. Salvato then confirmed that the office was coated with a white powder residue from materials commonly used in fire extinguishers.

The fourth and fatal fire occurred eight days later on November 10, 1991, at 6:15 a.m. Ms. Dois Clawson, Richardson's next door neighbor, was awakened by Appellant knocking at her door. She came to the door to see Appellant in the yard waving her hands, "walking in circles, and just not hollering, but making--not knowing what to do." Appellant informed Clawson that the house was on fire and that Richardson was inside. As the two approached the dwelling, Clawson could see flames through the living room window. Clawson then asked Appellant if fire fighters had been summoned and Appellant responded in the negative. Clawson returned to her house to call the fire department, then returned to the blaze to see that Appellant had broken two window panes, from which escaped little smoke, in an apparent effort to enter the house. Because she was concerned the broken windows would better ventilate the fire and thereby intensify the blaze, Clawson pulled Appellant away from the windows.

Clawson next attempted to open the front door but found it locked. Upon inquiry, Appellant related that she had not escaped through the front door, but from her bedroom window. The two women walked to the open, crank-operated window to Appellant's room whereupon Appellant began to enter the room through the window. Before she was entirely beyond the plane of the window, however, Appellant abandoned her effort, citing difficulty breathing because of smoke. Clawson saw neither flames in the bedroom nor smoke coming through the window. Appellant told Clawson that Richardson woke her, informed her of the fire, instructed her to escape through the window, and indicated he would exit after fetching his dogs. Richardson's badly burned body was later discovered in the living room.

Clawson accompanied an emotionally upset Appellant to Clawson's house when Fort Stockton Police Officer Robert Curtis arrived. Appellant thereafter went back outside over Clawson's objections and attempts to restrain her. Officer Curtis, meanwhile, had kicked down the locked front door, allowing thick black smoke to escape through the opening and causing the flames to grow in size. As Officer Curtis tried to crawl through the door and under the smoke, Appellant attempted to crawl over him in an apparent effort to enter the house. Officer Curtis first pulled her away from the structure, then briefly struggled with Appellant to prevent her return to the building. Shortly thereafter, Officer Curtis repeated his actions, again pulling Appellant away from the house.

Soon thereafter, Officer Villesca and Fort Stockton Police Corporal Rick Carreon arrived on the scene. Officer Villesca immediately asked Appellant if anyone was in the house and she responded that someone was in the living room. Officers Villesca and Carreon then made their way through thick smoke and intense heat to the living room, where they discovered a motionless body lying on the floor. They did not see the body at a distance and only discovered it by crawling along the floor and using a flashlight. Before they could rescue the body, however, the men were forced from the house by the smoke.

At some point, Appellant was placed in the backseat of a police vehicle in an effort to prevent her from endangering herself and others by entering the burning house. Although she was not suspected of wrongdoing at the time, she appeared angry to be confined to the car. After emerging from the burning house, Officer Villesca walked toward Appellant, whom Officer Curtis was restraining, in time to hear her shout, "let me go, you son of a bitch." Officer Villesca and Betsy Spencer, a Victim Assistance Coordinator, returned Appellant to Clawson's home. Appellant continued to try to leave the house, claiming that she wanted to see Richardson. As Officer Villesca took Appellant to Clawson's home, Appellant told him to let her loose, calling him a "mother fucker". Spencer later had to summon Officer Villesca back to Clawson's house to restrain Appellant, who again became belligerent, telling him, "you can kiss my ass," and repeating the above expletive. On this occasion, Officer Villesca noticed the strong odor of alcohol about Appellant. Spencer and Officer Carreon also smelled alcohol about Appellant. Further, Spencer noticed that some of Appellant's hair was singed, as though it had come into direct contact with flame. Spencer also noted that Appellant had black marks under her nose and about her lips.

As the fire was brought under control, Appellant was taken to the local hospital by Spencer and Clawson in Spencer's personal vehicle. While en route, Appellant repeated her story that Richardson had awakened her and instructed her to exit through her window. Some thirty minutes after arriving at the hospital, however, Appellant claimed she did not know if Richardson had actually done this or if Appellant only imagined the drama. Spencer, who had been instructed to have Appellant sedated, was contacted by Officer Carreon, via radio, and instructed not to have her sedated because investigators wished to obtain a statement from Appellant. Appellant overheard this conversation, which occurred on the way to the hospital and before Appellant mused that she may have imagined the events she earlier claimed to recall.

Medical personnel at the hospital confirmed others' observations that Appellant's hair was singed, that she had soot-like marks about her nose and lips, further, that she smelled of alcohol. When Officer Carreon arrived at the hospital in search of a statement from Appellant, he asked Spencer to be present while he spoke to Appellant. Appellant was quite clear that she was not "giving them a fucking thing" until she spoke to her attorney. While at the hospital, Officer Carreon for the first time observed scratches on Appellant's legs and blood around her toe, which observation he reported to his superiors. Sometime after 1:00 p.m., the District Attorney's office contacted Officer Carreon at the hospital and instructed him to seek a blood sample from Appellant. Appellant refused this request. At approximately 2:00 p.m. Appellant provided Spencer and Officer Carreon with a written statement. Between 7:00 p.m. and 9:00 p.m., an evidentiary search warrant was issued to obtain 10 ccs of blood and fingernail scrapings from Appellant. By the time Officer Carreon delivered the warrant to Appellant in her unguarded hospital room her fingernails had been bitten off down to the quick. Investigators nevertheless obtained the samples they sought without any resistance.

On the following day, fire investigators searched the burned house for evidence. They found in Appellant's bedroom a holographic will signed by B.R. Richardson, which named Appellant as sole heir.

II. DISCUSSION

Appellant attacks her conviction in fifteen points of error. In Points of Error Nos. One and Two, Appellant challenges the sufficiency of the evidence to support the conclusion...