Willian v. State, No. 03-03-00681-CR (TX 8/17/2005)

• Decision Date: 17 August 2005
• Docket Number: No. 03-03-00681-CR.,No. 03-03-00686-CR.,03-03-00681-CR.,03-03-00686-CR.
• Citation: Willian v. State, No. 03-03-00681-CR (TX 8/17/2005), No. 03-03-00681-CR., No. 03-03-00686-CR. (Tex. Aug 17, 2005)
• Parties: LENN WILLIAN, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Supreme Court

Page 1

Unpublished Opinion

LENN WILLIAN, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 03-03-00681-CR.

No. 03-03-00686-CR.

Court of Appeals of Texas, Third District, Austin.

Filed: August 17, 2005.

Do Not Publish.

Appeal from the District Court of Travis County, 299th Judicial District, Nos. 9034083 & 9034084, Honorable Fred A. Moore, Judge Presiding.

Vacated and Dismissed in Cause No. 03-03-00681-CR Reformed, and as Reformed, Affirmed as to Cause No. 03-03-00686-CR.

Before Chief Justice LAW, Justices PURYEAR and ONION^*.

MEMORANDUM OPINION.

JOHN F. ONION, Jr., Justice.

Appellant Lenn Willian appeals his convictions for burglary of a habitation with intent to commit arson and committing arson, Tex. Pen. Code Ann. § 30.02(a)(1), (d) (West 2003), and arson. Id. § 28.02(a)(2), (d)(2). The jury found appellant guilty of each offense. The trial court found that appellant had been previously convicted in 1995 of attempted burglary of a habitation in Tom Green County, as alleged in the indictment, and assessed punishment in each case at confinement in prison for twenty-five years.¹ Another counsel was appointed for appellant on appeal. A motion for new trial was filed, heard, and overruled. Notice of appeal was given.

Points of Error

Appellant advances ten points of error. In points one and two, appellant contends that both convictions cannot stand because of the violation of the double jeopardy clause in the federal and state constitutions. See U.S. Const. amends. V and XIV; Tex. Const. art. I, §§ 13, 14 and 19. Points of error three through ten, in effect, contend that the trial court abused its discretion in overruling the motion for new trial. In points three, four, and five, appellant urges that a new trial should have been granted in light of newly discovered evidence. Appellant cites U.S. Const. amends. V and XIV; Tex. Const. art. I, §§ 10 and 19; and Tex. Code Crim. Proc. Ann. art. 40.001 (West Supp. 2004-05). In points six and seven, appellant contends that he should have been accorded a new trial because the State failed to disclose evidence favorable to him in violation of his constitutional rights. He cites "U.S. Const. Amends. V and XIV; Tex. Const. art. 1, §§ 10 and 19." In points eight and nine, appellant asserts that he was denied the effective assistance of trial counsel as guaranteed by the federal and state constitutions. See U.S. Const., amends. VI and XIV; Tex. Const. art. I, §§ 10 and 19. In his tenth and last point, appellant generally urges that the trial court erred in denying his motion for a new trial based on the foregoing contentions.

Double Jeopardy

Appellant contends that the convictions in both cases violate the double jeopardy clauses of the federal and state constitutions. Appellant briefs these contentions together. While he urges that the Texas Constitution can be interpreted to give greater protection than the United States Constitution, he makes no argument or showing that the Texas constitutional double jeopardy clause differs in any significant way from the Fifth Amendment to the United States Constitution. We need not address point of error two and consider only the double jeopardy issue under the federal constitution. See Ex parte Granger, 850 S.W.2d 513, 515 n.6 (Tex. Crim. App. 1993); Hutchins v. State, 992 S.W.2d 629, 630 (Tex. App.-Austin 1999, no pet.).

The double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage and applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). The Fifth Amendment guarantee against double jeopardy embodies three protections: against a second prosecution for the same offense following conviction, against a second prosecution for the same offense following acquittal, and against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980); Cervantes v. State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991). Appellant invokes the third of these protections. When a defendant is convicted of two or more crimes in a single trial, only the third of the protections is implicated. Ex parte Herron, 790 S.W.2d 623, 624 (Tex. Crim. App. 1990);Duvall v. State, 59 S.W.3d 773, 777 (Tex. App.-Austin 2001, pet. ref'd).

Hutchins, 992 S.W.2d at 631-32 briefly explains the law in this area:

When the same act or transaction violates two different penal statutes, the two offenses are the same for double jeopardy purposes if one of the offenses contains all the elements of the other; they are not the same if each offense has a unique element. See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). The double jeopardy guarantee against multiple punishments for the same offense does no more than prevent greater punishment than the legislature intended. See Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983); Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex. Crim. App. 1992). Absent a clear indication of contrary legislative intent, it is presumed that the legislature did not intend to authorize multiple punishments for two offenses that are the same under the Blockburger test. See Whalen v. United States, 445 U.S. 684, 691-92, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980).

Appellant argues that both offenses arose from the same transaction, incident, acts, and conduct. The undisputed evidence shows that the offenses occurred on the same date in the same place, the habitation of Gena Boswell, during a single transaction or incident. The jury found appellant guilty of arson of a habitation as charged in trial court cause number 9034084, and in the joint trial also by its verdict found him guilty of burglary of a habitation by entering and committing the felony offense of arson in trial court number 9034083. We need not elongate our discussion for the State has confessed error and agrees that the double jeopardy clause of the Fifth Amendment has been violated by multiple punishments.

Normally, when the defendant is convicted of two offenses in violation of the double jeopardy prohibitation, the conviction for the offense with the most serious punishment is retained and the other conviction is set aside. See Landers v. State, 957 S.W.2d 558, 560 (Tex. Crim. App. 1997). Here, however, both offenses are first degree felony offenses enhanced by a prior felony conviction. Both parties have requested that the arson conviction be retained and the burglary conviction be vacated and that cause dismissed. It is so ordered. The first point of error is sustained.

Background

We shall discuss the facts in order to place the other points of error in proper perspective. Robert Ming, a city of Pflugerville firefighter, arrived at 1720 Wells Branch Parkway in the early morning hours of November 30, 2002. Going to the second floor apartment, Ming found the door had been opened by a sheriff's deputy. Smoke filled the apartment, and the visibility was poor. The in-house sprinklers had extinguished the fire. Thermal imaging showed a "hot spot" on a couch indicating the origin of the fire. There was damage to the couch, and the ceiling was charred because of the heat.

Dennis Haas, a Travis County Fire Marshal, arrived at the scene about 3:30 a.m. The fire was out and it had been confined to the couch and a small area of the carpet inside the apartment. Haas, qualified as an expert, opined that the fire had been started on the back of the couch and was not accidental. An empty bottle of vegetable oil was found on the couch, which Haas believed was the accelerant. A burnt match and matchbook were found near the patio entry. Haas believed the match was the source of the fire. A rear window in the apartment had a "very round" hole in it consistent with an impact type fracture. Most of the window glass fell inside the apartment. The window had been unlocked and entry into the apartment had been obtained from the balcony patio.

Later Haas took written statements from Gena Boswell, whose habitation was involved, and from Marvina Birdwell, appellant's sister. On December 1, 2002, Boswell gave Haas a number of items which had been taken from her apartment and later found approximately 100 yards behind the apartment "buried in plain sight." One of the items was a round marble ash tray, which had been on the balcony patio and could have been used to break the window.

The ashtray and other items were not checked for fingerprints. Several bottles failed to reveal useable prints. The spot of blood found on the patio was not tested. The items discovered outside appeared to have been handled by a number of individuals after the fire. Haas learned that appellant had once lived in the apartment and finding his preserved fingerprints might have proven meaningless.

Gena Boswell testified that she began an intimate relationship with appellant in July 2000. About two years later they moved to 1720 Wells Branch Parkway, residing first in a ground floor apartment and then moving to the second floor apartment. They separated in October 2002. Boswell continued to live in the apartment. Appellant sought unsuccessfully to reconcile later in October. Appellant called Boswell again in early November and demanded "half of the couch and half of the stuff" as it belonged to him. Boswell refused because she had made a majority of the payments on the items. Appellant called again and threatened her with court action over the property.

Late in November 2002, Boswell locked and secured the apartment. She did not set the burglar alarm. The ashtray was on the balcony patio. Boswell left to spend Thanksgiving in Houston with her family. On December 1, 2002, she observed that appellant had called her on her cell phone at 2:30 a.m. but left no message. She had a "feeling" the apartment had been set on fire. She later received a telephone message from a State Trooper that there had been a fire in her apartment.

Boswell returned home that...