Faulk v. State

• Decision Date: 22 October 1980
• Docket Number: No. 56402,56402
• Citation: 608 S.W.2d 625
• Parties: Robert FAULK, M. R. Ferguson & Allen Lawless, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 625

608 S.W.2d 625

Robert FAULK, M. R. Ferguson & Allen Lawless, Appellants, v. The STATE of Texas, Appellee.

No. 56402.

Court of Criminal Appeals of Texas, En Banc.

Oct. 22, 1980.

Rehearing Denied Dec. 10, 1980.

Joseph C. Hawthorn, Beaumont, for appellant.

James S. McGrath, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeals are taken from convictions for riot. V.T.C.A.Penal Code, Sec. 42.02. After finding appellants Faulk and Ferguson guilty of riot by arson, the jury assessed punishment at five years for Faulk and three years for Ferguson. After finding appellant Lawless guilty of riot by criminal mischief, the jury assessed punishment at five years, probated.

In their second ground of error, appellants Faulk and Ferguson challenge the sufficiency of the evidence. Specifically, they maintain that the evidence is insufficient to prove that a fire was intentionally set. They further contend that the evidence is insufficient to prove that they set a fire or acted together in some manner with those who actually set a fire.

John Wallace testified that he was Finance Secretary for Carpenter's Local 610 in Port Arthur. Wallace stated that on the morning of January 17, 1975, he noticed approximately 500 people gathered on Highway 73 in Port Arthur. Wallace related that the purpose of the group was to protest substandard wages, bad working conditions, and "people from out of that area not working." These complaints were directed at officials of Cross Construction Company. The company had contracted to perform work at the Alligator Pump Station. The construction site was approximately three miles from the location where the protestors had gathered.

William McVay was the carpenter foreman for Cross Construction at the job site. McVay related that while working, he noticed three or four pickup trucks drive up to the job site. Approximately 50 men were riding in and on the trucks. McVay related that as soon as the trucks stopped, the men formed into several groups and began destroying property at the job site. McVay stated that the intruders were armed with two-by-four sections of lumber, pipes, bottles, and rocks. Several Cross employees were attacked and beaten by members of the group. McVay testified that all of the men appeared to be participating in the disturbance. As he left for the hospital, McVay saw approximately 20 men attempting to turn over a 30 foot trailer which was used as an office at the job site by Cross. McVay stated that there were no kerosene lamps or heating devices in the office.

A. A. Cross, President of Cross Construction Company, testified the office trailer at the job site was totally destroyed by fire. Cross stated that there was nothing of a combustible nature in the trailer. He testified that he observed members of the mob dousing gasoline on the trailer, but, but did not actually see the trailer set on fire. Cross stated that all of the men who departed from the pickup trucks were participating in the disturbance. Cross identified appellants Faulk and Ferguson as members of the group. He stated that Ferguson was armed with a section of lumber which had been fashioned into a club.

Paul Scott testified that he was a construction engineer for Cross Construction. He related that he was physically attacked by members of the group. Scott identified appellant Faulk as one of the individuals who invaded the job site.

Claude Leflett testified that he was a heavy equipment operator at the job site. Leflett stated that when he attempted to gain access to the job site via Highway 73, his truck was stopped by the protestors and he was told he would not be allowed to go to work. Leflett eventually gained access to the job site by another route. He stated that when he saw the men arrive in the pickup trucks, he attempted to leave. Before he could leave the site, Leflett was hit in the face by appellant Faulk and asked if he (Leflett) did not remember that he was told not to come to work that day.

Officer Thomas Treadway, of the Port Arthur Police Department, testified that he arrived at the job site after learning that a demonstration was being held to protest the use of "scab labor" by Cross. He related that when he arrived, the job site was destroyed and it looked as though "a battle had taken place." Treadway stated that a trailer at the site was burning.

In support of his contention that the evidence is insufficient to show that the fire was intentionally set, appellant relies on Bussey v. State, 474 S.W.2d 708 (Tex.Cr.App.). In that case, the Court found the evidence insufficient to support an arson conviction when no one saw the defendant start the fire and the State made no effort to negate the possibility that the fire started from some cause other than being designedly set. Likewise, in Adrian v. State, 587 S.W.2d 733 (Tex.Cr.App.), we found the evidence insufficient to support the arson conviction when apart from the defendant's confession, there was no evidence that the fire was intentionally set. Thus, the mere fact that a building is destroyed by fire does not show that the crime of arson was committed by anyone, in that there must be evidence that the fire was of an incendiary origin. Zepeda v. State, 139 Tex.Cr.R. 258, 139 S.W.2d 820.

In the instant case, McVay testified that there were no kerosene lamps or heating devices in the trailer. Cross related that although there were no combustible materials in the trailer, it was gutted by fire after he saw members of the mob dousing it with gasoline. We find the evidence sufficient to prove that the fire which destroyed the trailer was of an incendiary origin.

Appellants further contend that the evidence is insufficient to prove that they, or any member of the group, set the trailer on fire. Cross testified that the intruders arrived at the site shortly before 7:00 A.M. While the men were destroying the property, he saw gasoline being thrown onto the trailer. Officer Treadway testified that he arrived at the job site about 7:09 A.M. When he arrived, Treadway noticed that the trailer was on fire. Treadway stated that when he arrived at the job site, many of the men fled in their vehicles and others attempted to conceal their identity.

The State could discharge its burden by showing that anyone engaged in the riot set the trailer on fire. See, Sec. 42.02(f). In the absence of direct evidence that a participant was seen starting the fire, the State necessarily relied on circumstantial evidence.

A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of guilt of the defendant. Schershel v. State, 575 S.W.2d 548 (Tex.Cr.App.); Bryant v. State, 574 S.W.2d 109 (Tex.Cr.App.). Thus, proof which amounts only to a strong suspicion or mere probability is insufficient. Ford v. State, 571 S.W.2d 924 (Tex.Cr.App.). However, every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence to support the conviction. Earnhart v. State, 575 S.W.2d 551 (Tex.Cr.App.).

In Romo v. State, 593 S.W.2d 690 (Tex.Cr.App.), the appellant challenged the sufficiency of the evidence to prove that he set a fire. This Court found the evidence sufficient to support the arson conviction. Although no one saw the defendant start a fire, it was shown that shortly after he entered his individual jail cell, a flaming wad of toilet paper was hurled from the cell into the hallway. Likewise, in Miller v. State, 566 S.W.2d 614 (Tex.Cr.App.), we found the evidence sufficient to prove that the defendant started a fire. In that case, the defendant was shown to have been present shortly before the fire was seen. He was trying to notify potential customers and his employees that the restaurant would be closed that day. He left the scene in a hurried manner and he tried to cover up his prior presence on the day of the fire.

In the instant case, the evidence established that members of the group that invaded Cross' job site, doused gasoline onto the trailer. Shortly thereafter, the trailer was seen burning. Members of the group hurriedly left the site when law enforcement officials arrived. We find the evidence sufficient to exclude every other reasonable hypothesis except that of a group member's guilt in intentionally setting the trailer on fire. Appellants' second ground of error is overruled.

In their fourth ground of error, appellants Faulk and Ferguson contend that the trial court erred in failing to submit their specially requested charge relative to the law of circumstantial evidence. They maintain that in the absence of direct evidence that a member of the invading group started a fire, such a charge was required.

A charge on circumstantial evidence is required only when the evidence of the main fact essential to guilt is purely and entirely circumstantial. Ransonette v. State, 550 S.W.2d 36 (Tex.Cr.App.). However, when the facts are in such close relationship to the main fact to be proved as to be the equivalent of direct testimony, a charge on circumstantial evidence is not required. Newton v. State, 509 S.W.2d 610 (Tex.Cr.App.); Oltiveros v. State, 474 S.W.2d 221 (Tex.Cr.App.).

In Ales v. State, 587 S.W.2d 686 (Tex.Cr.App.), we concluded that the facts proven were in such close relationship as to be the equivalent of direct evidence of the main fact to be proved. In that case, no one saw the appellant inflict the injuries which brought about the death of his child. However, the appellant's wife testified that she was told to leave a room in order for the appellant to punish the child with a paddle. The next morning the witness observed that the child had severe head injuries. It was also proven that the...