Waller v. State

• Decision Date: 11 January 2012
• Docket Number: No. 02–09–00373–CR.,02–09–00373–CR.
• Citation: 353 S.W.3d 257
• Parties: Johnny Ray WALLER, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

353 S.W.3d 257

Johnny Ray WALLER, Appellant,

v.The STATE of Texas, State.

No. 02–09–00373–CR.

Court of Appeals of Texas, Fort Worth.

Oct. 20, 2011.Discretionary Review Refused Jan. 11, 2012.

Daniel L. Young, Fort Worth, for Appellant.

Joe Shannon, Jr., Crim. Dist. Atty., Charles M. Mallin, Edward L. Wilkinson, Asst. Crim. Dist. Atty., Fort Worth, for State.

PANEL: DAUPHINOT, WALKER, and McCOY, JJ.

OPINION ON REHEARING

SUE WALKER, Justice.

On July 7, 2011, this court issued an opinion reversing the trial court's judgment and remanding the case for a new trial. After due consideration, a majority of this court agrees to grant the State's motion for rehearing to delete part IV of our prior memorandum opinion. The substance of the remainder of our prior opinion, authored by Justice Dauphinot, and set forth below, remains unchanged.

We withdraw our prior memorandum opinion, concurring memorandum opinion, and judgment dated July 7, 2011, and substitute the following in its place.

A jury convicted Appellant Johnny Ray Waller of arson causing the death of Geovany Gustavo Guerra, burglary of a habitation with intent to commit arson, and felony murder of Guerra in the course of committing arson, all charged in separate counts of a single indictment, and assessed Appellant's punishment at forty-five years' confinement for each count. The trial court sentenced him accordingly, ordering that the sentences run concurrently.

Appellant brings ten points, arguing that the trial court reversibly erred by denying his challenges for cause of veniremembers who could not consider the full range of punishment and by submitting a jury charge that did not require a unanimous jury verdict or contain an accomplice witness instruction; that the evidence is factually insufficient to support his convictions for arson as a party and for felony murder as a party; and that trial counsel rendered ineffective assistance by failing to request an accomplice witness instruction in the jury charge. Because we hold that the trial court reversibly erred by failing to grant Appellant's challenges for cause of veniremembers who could not consider the full range of punishment, we reverse the trial court's judgment and remand this case to the trial court for a new trial.

I. Summary of the Facts

Appellant and several other people had gone to James Griggs's Haltom City apartment one night because Appellant believed that Griggs owed him money from a drug buy. At the time, Griggs was at his girlfriend's apartment in the same complex. Around 2:00 or 3:00 a.m., from his girlfriend's apartment, Griggs saw several people walking to his apartment. He also saw two vehicles in the parking lot, one of which he recognized as Appellant's girlfriend's truck.

Griggs's neighbor, Tara Daubig, testified that she and a friend were on her balcony when she saw a black SUV driving around the parking lot. A black Ford pickup truck met the SUV in front of her apartment, and one man got out of the truck. About three men got out of the SUV. The group headed toward Griggs's apartment, shouting, “Where's James?” and “We'll find you.” She heard them bang on a door. When they left, she noted that it was 2:30 a.m. Around 2:55 a.m., Griggs received a text from Appellant's girlfriend that they were gone from his apartment.

Melissa Svec, another neighbor, awoke between 4:00 a.m. and 4:30 a.m. to the smell of smoke. She had been awakened briefly about forty-five minutes before by a bang coming from a nearby apartment.

A third neighbor, Sandy Bethea, testified that she awoke to the smell of charcoal lighter fluid around 4:00 a.m. She went back to sleep and was awakened about thirty minutes later by someone knocking on her door and informing her of the fire.

After receiving a phone call telling him that his apartment was on fire, Griggs returned to his apartment and saw flames rolling along the ceiling. He testified that he saw a can of lighter fluid on the counter.

After the fire in the three-story apartment building was extinguished by firefighters, the body of Guerra was discovered in the bathtub of a third-floor apartment.

While out on patrol several days later, Hurst Police Officer Amber Hull ran the license plate of a car in front of her and discovered that the car had been reported as stolen. Hull was in North Richland Hills at the time, so she followed the car until a North Richland Hills police officer could respond. A North Richland Hills police vehicle gave chase to the car but terminated the chase. The car was later found abandoned in a subdivision. The police found Appellant and two women hiding in a nearby drainage ditch. At trial, the North Richland Hills officer who had chased the car identified Appellant as its driver.

A Haltom City police officer investigating the fire at the apartment complex obtained a search warrant for the stolen vehicle. From the vehicle, the officer recovered a small blow torch, a pistol equipped with a laser sight, a newspaper clipping about the fire, and a piece of paper with Griggs's prior address, his driver's license number, and his social security number.

In a videotaped statement to the police, Appellant admitted going to Griggs's apartment on the night of the fire “to whip [his] ass” and also that he had instructed a number of people to meet him in the apartment complex parking lot. Appellant also admitted that one of his acquaintances kicked in the door to Griggs's apartment. Appellant stated that the apartment was empty, and he left. As he was leaving, Appellant saw brothers K.C. and Jaime Sifuentes in the street outside the complex. The brothers were among the people that Appellant had called to meet him at the apartment complex. Appellant stated that they had a gas container and wanted a ride, claiming that their car was out of gas. Appellant said that he told the brothers the purpose of his visit and that they told him something like, “Don't worry about it,” “It'll get taken care of,” and “We got it taken care of,” but they did not say anything about starting a fire.

Alan LeMaster, who was also charged with arson for the fire, testified for the State at Appellant's trial. LeMaster testified that he and the Sifuentes brothers were at his godmother's apartment on the night of the fire. K.C. received a phone call from Appellant and went outside to talk. When K.C. came back inside, he told his brother that “it was time to go.” The brothers invited LeMaster to go with them. K.C. said that they were going to collect some money owed to Appellant. They stopped at a gas station on the way; LeMaster testified that he went inside to use the restroom while the brothers “were supposedly getting gas for [their] car.” Appellant called K.C., who told him that they were on their way.

LeMaster stated that when they arrived at the complex, the brothers went into Griggs's apartment and told LeMaster to wait at the top of the stairs. LeMaster went into the apartment at one point and saw K.C. holding a cup of liquid in his hand and asking Jaime about a good spot. LeMaster did not smell gas fumes, lighter fluid, or anything of that sort. The brothers told LeMaster to go back to the stairs. About a minute later, the brothers ran out of the apartment, and all three ran back to the car. K.C. drove around the parking lot until flames could be seen coming out of the building. The brothers dropped LeMaster back off at his godmother's apartment, where K.C. made a telephone call and told someone that the brothers “did what [they] were supposed to and [that they would] be on [their] way to handle business.” The brothers then left but returned about an hour later with some methamphetamine and some money.

LeMaster's godmother testified that LeMaster had told her that he had gone into the apartment with the brothers and had started a fire to take care of a problem for Appellant.

In the jury charge, the trial court charged the separate paragraphs of each of the three counts in the disjunctive. There was a separate verdict form for each count. The jury charge did not state that the jury had to be unanimous on any single theory of the alternative manners and means of committing the offense in each count.

The jury charge also contained special issues relating to a deadly weapon finding. The jury did not find that Appellant had exhibited a deadly weapon in the form of a combustible or flammable liquid or material or “carbon monoxide and/or smoke” or that he knew that such deadly weapon would be used.

The jury charge did not contain an accomplice witness instruction regarding LeMaster's testimony, and Appellant did not request such an instruction or object to the trial court's failure to include one.

II. Sufficiency of the Evidence

Appellant argues in his seventh and eighth points that the evidence is factually insufficient to support his convictions for arson as a party and for felony murder as a party. The State argues that “[b]y attacking only the factual sufficiency of the evidence, Appellant has implicitly conceded that the evidence is factually sufficient. His seventh and eighth points of error should therefore be overruled.”

After Appellant filed his brief, the Texas Court of Criminal Appeals held that there is no meaningful distinction between the legal sufficiency standard and the factual sufficiency standard.¹ Thus, the Jackson standard, which is explained below, is the “only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” ² We therefore apply the Jackson standard to Appellant's seventh and eighth points.

In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.³...