Lozano v. State

• Decision Date: 30 June 1993
• Docket Number: Nos. 3-92-347-CR,s. 3-92-347-CR
• Citation: 860 S.W.2d 152
• Parties: Jimmy Jack LOZANO, Appellant, v. The STATE of Texas, Appellee. to 3-92-350-CR.
• Court: Texas Court of Appeals

Page 152

860 S.W.2d 152

Jimmy Jack LOZANO, Appellant, v. The STATE of Texas, Appellee.

Nos. 3-92-347-CR to 3-92-350-CR.

Court of Appeals of Texas Austin.

June 30, 1993.

Discretionary Review Refused

Oct. 20, 1993.

Bennie E. Ray, Austin, for appellant.

Ronald Earle, Dist. Atty., Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, for appellee.

Before CARROLL, C.J., and ABOUSSIE and JONES, JJ.

ABOUSSIE, Justice.

Appellant was charged with igniting a fire that killed four people and injured another person. In five causes consolidated for a single trial, the district court found appellant guilty of five acts of arson. Tex. Penal Code Ann. § 28.02(a) (West Supp.1993). The court assessed life imprisonment for each offense and ordered the sentences to run concurrently. Appellant raises three points of error. We will affirm the judgment of conviction in Cause No. 3-92-346-CR, but we will reverse the remaining four judgments of conviction and order dismissal of the indictments in these causes.

BACKGROUND

In five separate indictments, appellant was charged with crimes arising out of a fire that killed four people and caused serious bodily injury to a fifth person. Each indictment alleged that appellant used a lighter to ignite combustible material. The indictment in Cause No. 3-92-346-CR charged that appellant committed arson resulting in the bodily injury of the victim. ¹ The other four indictments charged appellant with the murder of four victims committed in the course of arson. ² In a bench trial, one witness testified that appellant knocked on the door of a house, was told by the occupants to go away, walked around the house to a room at the back, then started a fire with his lighter. Shortly thereafter, appellant departed, leaving the house ablaze. One witness testified that appellant stated he burned the house because the people inside owed him money. Four people inside the house died and one person was seriously burned.

² The court granted the State's motion to consolidate the charges, and appellant pleaded not guilty in each cause.

Under the indictments, the trial court could have found appellant guilty of four acts of murder as well as the crime of arson. It did not. Instead, it found him guilty of arson in each cause.

DISCUSSION

In his third point of error, appellant complains that the trial court erred in finding him guilty of five separate arson offenses. It is undisputed that the four deaths and the fifth person's injuries all were caused by a single fire. Appellant argues that under section 28.02 of the Penal Code, death or injury is not an element of arson giving rise to multiple offenses. Instead, he asserts, any number of deaths or bodily injuries only enhances arson from a second-degree felony to a first-degree felony. Tex. Penal Code Ann. § 28.02(d) (West Supp.1993).

Appellant's point of error raises double jeopardy concerns. The United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Article I, section 14 of the Texas Constitution provides similar protection. ³ The federal and state double jeopardy clauses protect an individual against multiple prosecutions for the same offense after acquittal or conviction and against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); Phillips v. State, 787 S.W.2d 391, 393 (Tex.Crim.App.1990). Both the United States Constitution and the Texas Constitution speak of double jeopardy in terms of the "same offense" rather than the "same transaction." Spradling v. State, 773 S.W.2d 553, 555-56 (Tex.Crim.App.1989). Appellant complains he was convicted five times of the same offense, a single act of arson.

The State first contends that appellant has "waived" any error relating to multiple prosecutions, relying on Phillips, 787 S.W.2d at 393. Appellant did not object when the State moved to consolidate the five indictments for one trial. As in Phillips, where the accused's motion to consolidate was granted, appellant no longer has any complaint that he was exposed to multiple prosecutions for the same offense, since he received only one trial. The court in Phillips, however, went on to consider the merits of the accused's claim that multiple punishments had been assessed for the same offense. Id. Here, appellant received multiple life sentences for what he alleges was one offense. We reject the State's argument that appellant has only been punished once because his sentences are merely concurrent. The State cites no authority for the proposition that the double jeopardy clause distinguishes between concurrent and consecutive sentences of imprisonment. We therefore reach the merits of appellant's argument.

Double jeopardy does not bar multiple convictions where separate and distinct offenses occur during the same transaction. Phillips, 787 S.W.2d at 394; Ex parte Rathmell, 717 S.W.2d 33, 35 (Tex.Crim.App.1986); Jones v. State, 514 S.W.2d 255, 256 (Tex.Crim.App.1974). In Rathmell, the accused drove his vehicle while intoxicated, causing an accident in which two persons were killed. He was convicted of the involuntary manslaughter of one victim. When the State attempted to obtain an additional conviction based upon another victim's death, the accused sought to have the second indictment dismissed, claiming a second trial would expose him to double jeopardy. The Court of Criminal Appeals determined that each individual death constituted a separate and distinct offense and held that a second trial was not barred by double jeopardy. Id. at 36.

In Phillips, the defendant was convicted for the aggravated assault of two individuals arising out of a single automobile collision. On appeal, he raised double jeopardy objections. Citing Rathmell, the court held that his actions constituted two separate offenses against two separate people. Id. at 394-95.

The relevant involuntary manslaughter statute in Rathmell and the aggravated assault statute in Phillips state in pertinent part:

(a) A person commits [involuntary manslaughter] if he:

(1) recklessly causes the death of an individual; or

(2) by accident or mistake when operating a motor vehicle, airplane, helicopter, or boat while intoxicated and, by reason of such intoxication, causes the death of an individual.

Tex. Penal Code Ann. § 19.05 (West 1989).

(a) A person commits [aggravated assault] if the person commits assault as defined in Section 22.01 of this code and the person:

(1) causes serious bodily injury to another.

Tex. Penal Code Ann. § 22.02 (West 1989). The court held that these statutes clearly reflect that the Legislature intended that the offenses of involuntary manslaughter and aggravated assault, both offenses against the person, ⁴ are complete upon the death or assault of a single person. Phillips, 787 S.W.2d at 395; Rathmell, 717 S.W.2d at 35. Each individual death or assault constitutes a complete and distinct offense and, as such, each offense constitutes a separate "allowable unit of prosecution." Rathmell, 717 S.W.2d at 35 (quoting Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)).

In contrast, arson is an offense against property. ⁵ The Penal Code defines arson as occurring when a person starts a fire or causes an explosion with intent to destroy or damage property. Tex. Penal Code Ann. § 28.02(a). ⁶ An arson offense is complete when the fire is started, not when bodily injury or death occurs as a result. Romo v. State, 593 S.W.2d 690, 693 (Tex.Crim.App.1980). The occurrence of such damage is not an element to be proven. Id.; Beltran v. State, 593 S.W.2d 688, 690 (Tex.Crim.App.1980). When bodily injury or death occurs as a result of arson, the statutory offense against property remains unaffected, although the degree of the chargeable felony increases. Tex. Penal Code Ann. § 28.02(d).

We hold that appellant committed a single offense, allowing a single unit of prosecution, when he committed arson by setting a single house on fire. Appellant's constitutional rights under the Double Jeopardy clauses of the United States and Texas constitutions protecting him from multiple punishments for the same offense were violated by the multiple convictions for first-degree arson. We sustain appellant's first point of error. ⁷

Appellant's second point of error attacks the sufficiency of the evidence in support of the district court's finding that a deadly weapon was used in the commission of the offense. ⁸ The Penal Code defines a deadly weapon as:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Tex. Penal Code Ann. § 1.07(a)(11) (West 1974). The district court found that appellant's lighter, which he used to start the fire, constituted a deadly weapon. Although a lighter is not a deadly weapon per se, it can qualify as such through the manner of its use and its capacity to produce death or serious bodily injury. See Denham v. State, 574 S.W.2d 129, 130 (Tex.Crim.App.1978); McElroy v. State, 528 S.W.2d 831, 833-34 (Tex.Crim.App.1975); Roberts v. State, 766 S.W.2d 578, 579 (Tex.App.--Austin 1989, no pet.). Injury or wounds inflicted upon a person are factors to consider in addition to the manner of use in determining whether an object qualifies as a deadly weapon. Quintana v. State, 777 S.W.2d 474, 478 (Tex.App.--Corpus Christi 1989, pet. ref'd); Harper v. State, 753 S.W.2d 516, 518 (Tex.App.--Houston [1st Dist.] 1988, pet. ref'd). Here, appellant used his lighter to ignite combustible material, causing a fire that killed or badly burned five people.

Appellant contends that the evidence shows he was unaware anyone was inside the house and, therefore, proves he did not intend to cause death or injury. A...