Fitts v. State

• Citation: 982 S.W.2d 175
• Decision Date: 06 August 1998
• Docket Number: 01-96-00332-CR,Nos. 01-96-00331-C,s. 01-96-00331-C
• Parties: Charles Edward FITTS, Jr., Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Court of Appeals of Texas

Page 175

982 S.W.2d 175

Charles Edward FITTS, Jr., Appellant, v. The STATE of Texas, Appellee.

Nos. 01-96-00331-CR, 01-96-00332-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Aug. 6, 1998.

As Corrected Oct. 5, 1998.

Discretionary Review Refused

Feb. 24, 1999.

Dick DeGuerin, Houston, Bennie Ray, Austin, for Appellant.

Travis J. Koehn, Daniel W. Leedy, Cynthia M. Ruiz, Bellville, for Appellee.

Before MIRABAL, WILSON and TAFT, JJ.

OPINION

TAFT, Justice.

A jury convicted appellant of (1) capital murder by arson, (2) capital murder for remuneration, and (3) arson. ¹ The trial court assessed punishment at three life sentences to be served concurrently. We address two issues of first impression in Texas: (1) the proper remedy for error in twice convicting and sentencing appellant for capital murder of the same decedent; and (2) the admissibility of "alerts" made by trained hydrocarbon-sniffing dogs utilized at appellant's home. We also decide (1) whether misspelling "remuneration" rendered the indictment fundamentally defective; and (2) whether the evidence supporting appellant's convictions was legally and factually sufficient to prove that appellant (a) intentionally set the fire, (b) caused his wife to inhale soot until she asphyxiated, and (c) caused his wife's death for remuneration. We affirm the arson judgment, and, as reformed, affirm the capital murder judgment.

Facts

In 1986, appellant told his friend of 12 years, Merlin Cryer, that if he could ever figure out a way to kill his wife, he would.

In 1989, appellant began an affair with Tracy Munns, the daughter of a wealthy English businessman. Appellant traveled to England with Tracy in 1990 and 1992 and stayed for three-week visits. David Munns, Tracy's father, did not know appellant was married at that time, and discussed appellant's intention to marry Tracy after she graduated from college. After Tracy moved to the Phillippines, appellant continued to call her.

In 1990, appellant obtained a $300,000 life insurance policy on his wife, naming himself as beneficiary. In 1992, appellant asked his insurance agent, without his wife present, to increase the insurance renewal policy on his home. Also, appellant was the beneficiary of his wife's $64,843 in retirement benefits, and a life insurance benefit through her employment, valued at $222,000.

Nine days before the fire, appellant placed an advertisement in the newspaper to sell his Mercedes-Benz vehicle, which read "Must sell. Leaving country."

Around 2:30 a.m. on June 8, 1994, a fire started at appellant's home. Appellant claimed he was asleep on the couch and awoke to find the living room filled with smoke and intense heat. Appellant said he ran outside through the front door and began breaking windows, and then broke in the back door trying to get his wife out.

Kenneth Manus, on his way home from work, noticed smoke coming from appellant's home and stopped to investigate. Manus encountered appellant driving out of the driveway. According to Manus, appellant seemed confused, and asked for his help. Manus asked appellant where the nearest phone was, and told appellant he was going to get help. Upon further questioning by Manus, appellant stated that his wife was still in the house. Manus observed that appellant was smeared with soot, but was not burned, and that appellant did not act as he would have if his wife were in a burning house. Appellant went to a neighbor's house and asked her to call the fire department, which she did. Appellant then proceeded to another neighbor's house to ask for help.

EMS attendants and other personnel at the scene observed that appellant was not burned and did not suffer from soot inhalation. Appellant was taken to the hospital, and a nurse who saw him that evening stated that appellant had no injuries except for a scratch on the forehead. While appellant's medical records show that he did have burns on his body, the nurse who prepared those records did not testify at trial.

At trial, the State called numerous experts who stated that the fire was intentionally set, and that other possible causes, such as faulty electrical wiring, had been ruled out. Their conclusions were based on a "pour pattern" found in two rooms of the house indicating that gasoline was used as an accelerant, certain "alerts" made by hydrocarbon-sniffing dogs that were called to the scene after the fire, and the results of scientific testing that showed a trace of gasoline in one of the samples collected at the scene. The defense called its own experts who stated that gasoline was not used to start the fire and that the fire was accidental in origin.

Multiple Capital Murder Convictions/Sentences

In his second point of error, appellant contends that the trial court violated the protections against double jeopardy in the United States and Texas constitutions by twice convicting and sentencing him for capital murder arising out of the same criminal episode involving the same decedent. The capital murder indictment alleged alternative theories in two paragraphs: (1) murder for "renumeration "; ² and (2) murder by arson. Appellant was also charged, by separate indictment, with the offense of arson. The trial court's charge submitted both theories of capital murder to the jury without disjunctive language and provided verdict forms allowing the jury to find appellant twice guilty of capital murder, as well as arson. Appellant did not object to the jury charge at trial, nor does he challenge it on appeal. In addition to finding appellant guilty of arson, the jury found appellant guilty of both capital murder by arson and capital murder for remuneration. The trial court's judgment reflects that appellant was convicted of "Capital Murder/Arson, Capital Murder/Remuneration and Arson Bodily Injury or Death." The judgment sentenced appellant to three concurrent life sentences.

When a statute sets out several ways an offense can be committed, each of which embraces the same definition, is punishable in the same manner, and is not repugnant to any other, the various methods of commission are not distinct offenses, and may be charged in the same indictment. See Jurek v. State, 522 S.W.2d 934, 941 (Tex.Crim.App.1975). The State need not elect between the various theories alleged; rather, the jury may consider all theories and return a general verdict of guilty. See Sperling v. State, 924 S.W.2d 722, 727 (Tex.App.--Amarillo 1996, pet. ref'd).

In this case, the State concedes that the jury returned two verdicts convicting appellant for what should have been a single charge of capital murder, and that the trial court sentenced appellant under both theories of capital murder instead of rendering a general verdict of guilty. Appellant correctly argues that such dual convictions and punishments for the same offense are barred by constitutional protections against double jeopardy. See U.S. CONST. amend. V; TEX. CONST. art. I, § 14. The only disputed issue is the appropriate appellate remedy.

To assist us in fashioning a remedy, both appellant and the State refer us to cases which involved convictions for multiple offenses, as opposed to multiple theories for the same offense, charged in the same indictment. See Ex parte Drake, 883 S.W.2d 213, 216 (Tex.Crim.App.1994); Johnson v. State, 784 S.W.2d 47, 49-50 (Tex.Crim.App.1990). These cases hold that an indictment may not charge more than one offense, and that any conviction in excess of one per indictment is void. See Drake, 883 S.W.2d at 216; Johnson, 784 S.W.2d at 49. In Drake and Johnson, the court determined the appropriate remedy for multiple offenses improperly charged in the same indictment was to uphold the offense for which the defendant was first convicted, to vacate the remaining convictions, and to reform the judgment accordingly. See Drake, 883 S.W.2d at 216; Johnson, 784 S.W.2d at 50. By way of analogy to this line of cases, appellant and the State request that we reform the judgment of the court below, albeit in different respects. Appellant contends that, because of the constitutional magnitude of the multiple capital murder convictions, we should vacate and reverse both convictions and reform the judgment accordingly. In the alternative, appellant requests that we vacate and reverse the conviction and sentence for capital murder for remuneration. The State requests that we reform the judgment to show one general verdict that does not distinguish between the theories charged in the indictment.

This Court has the power to modify and correct a judgment as the law and nature of the case may require. TEX. R. APP. P. 43.2, 43.6. In this case, it is clear from the record that the jury, by unanimous decision, found appellant guilty of both capital murder by arson and capital murder for remuneration. It is equally clear that the trial judge sentenced appellant to life for each conviction. Based on the clear expressions of the jury and the court, we agree that it is feasible to craft a remedy by analogy to the "multiple offense" cases cited by both parties. However, we decline to adopt either appellant's or the State's suggested approaches. Instead, we choose to follow the lead of the Court of Criminal Appeals, which has adopted the "most serious offense" test to determine which offense to dismiss when multiple offenses are charged in the same indictment. Ex parte Pena, 820 S.W.2d 806, 808-10 (Tex.Crim.App.1991) (reforming judgment to reflect conviction for aggravated robbery, and vacating conviction for burglary of a habitation). In Pena, the court set forth its reasons for adopting this test, including: (1) it avoids arbitrary distinctions based on which allegation or conviction preceded the others; (2) it assumes that if the State had been made to elect an offense, the State would have chosen the most serious one; and (3) it is consistent with the objective of the Penal Code to insure the public safety through the deterrent influence of...