Playing Catch-Up

While most of my recent focus has been on Texas Court of Criminal Appeals opinions, I have not been completely neglecting the various Courts of Appeals.  Below are some of the recent cases that were designated for publication by 1^st, 4^th, and 14^th District Courts of Appeals.   

Mims v. State, 1^st District Court of Appeals (Houston), 14 October 2010:

Appellant was convicted of first-degree arson and, after the court found that he used a deadly weapon (Fire), he was sentenced to 50 years in prison.  Appellant challenged the deadly weapon finding, arguing that fire cannot be a deadly weapon because it is not a tangible object and because it is one of the elements of the charged offense.  The Court held that

[A]lthough fire is not a physical object in the same sense as a gun or a knife, it is not intangible either, but rather manifests itself through the tangible aspects of combustion-namely, light, flame, and heat.  [F]ire is a thing which, in the manner of its use or intended use, is capable of causing death or serious bodily injury.

The Court also held that the same conduct that supports an element of an offense can also serve to support a deadly weapon finding.  Having rejected both of Appellant’s arguments, the Court affirmed the conviction.

Escamilla v. State, 4^th District Court of Appeals (San Antonio), 13 October 2010:

The Court held that the child victim (3 years and 9 months old) was competent to testify regarding sexual abuse by her father.  The Court also held that the trial court did not abuse its discretion by admitting testimony of the Sexual Assault Nurse Examiner (SANE) regarding methods of determining anal sexual assault.  Justice Hilbig concurred in the result, but dissented regarding the admissibility of the scientific evidence provided by the SANE.

Pham v. State, 14^th District Court of Appeals (Houston), 14 October 2010:

The Court held that appellant had no objective expectation of privacy in a bag of ecstasy pills that he delivered to an accomplice for eventual delivery to a third party.  As such, appellant had no standing to challenge the seizure of the drugs from the accomplice or the later admission in court. 

Kick the Tires, and Light the Fires: A Primer on Arson

In Texas, Title 7 Section 28.02 of the Texas Penal Code lays out the offense of arson. The code says that a person commits the offense of arson if, “…he starts a fire, regardless of whether the fire continues after ignition, or causes an explosion” This language forms the basis of the offense. Most arson cases are second degree felonies carrying a punishment range of 2-20 years in the penitentiary and up to a $10,000 fine. Some arson cases can be classified as first degree felonies and some can be state jail felonies.

In my opinion, Section 28.02 is one of broadest statutes in the penal code. The only thing the offense of arson requires is that a person intentionally set a fire. The language establishes one of the broadest statutes that the State can prosecute under. The statute doesn’t just stop at “set a fire” or “cause an explosion”. Section 28.02 does attempt to limit the act by laying out what a person must set on fire in order to commit the offense. A person must start a fire or cause an explosion, “with the intent to destroy or damage:

(1) Any vegetation, fence, or structure on open-space land; or
(2) Any building, habitation, or vehicle:
    A. Knowing that it is within the limits of an incorporated city or town;
    B. Knowing that it is insured against damage or destruction;
    C. Knowing that it is subject to a mortgage or other security interest;
    D. Knowing that it is located on property belonging to another;
    E. Knowing that it has located within it property belonging to another; or
    F. When the person is reckless about whether the burning or explosion will endanger the life of some individual or the safety of the property of another.”

Although the statute enumerates what a person must set fire to in order to commit the offense, this language covers almost any type of fire intentionally set. Of the flammable materials we live and work with every day, not much falls outside of vegetation, fences, structures, buildings, or habitations.

Of course, accidental fires do not fall within the language of this statute. In addition to accidental fires, sections (b) and (c) give exceptions to the statute for controlled burning on open-space land and fires set under the authority of a permit or written authorization from a city ordinance.

Given the broad language of the statute, you can see that the prosecution has a lot to work with when using its discretion in filing an arson case.

One of the key elements of an arson case is intent. The statute requires the intent to destroy or damage. Under the statute, the intent to start the fire or cause the explosion can actually be more important than the fire itself. For example, suppose a person takes a Molotov cocktail, lights it, and throws it into the window of a residence. The incendiary device hits the floor and goes out. No damage is done. Arson? I would argue that this act does fall within scope of the statute. The person intentionally set a fire by lighting the Molotov cocktail. The person had the intent to destroy or damage the habitation evidenced by his act of throwing the Molotov through the window of the residence. You can see that despite the lack of damage to the residence, this act would still be considered arson.

What if a person does not intend to destroy or damage the building, habitation or vehicle? For example, suppose a girl breaks up with her boyfriend. She has a shoebox full of photos that remind her of the now-painful relationship. She takes the shoebox to her parent’s house and she lights the shoebox on fire. The shoebox quickly engulfs in flames and then begins to spread to the rest of the room. The fire eventually burns the habitation to the ground. Arson? The defense could argue that the girl only intended to burn the shoebox full of photos. She did not intend to burn the house down. Sounds like a good defense, right? Well, the legislature added section (a-2) to address this type situation. Section (a-2) says that, “a person commits an offense if the person intentionally starts a fire or causes an explosion and in so doing: (1) recklessly damages or destroys a building belonging to another; or (2) recklessly causes another person to suffer bodily injury or death.”

Section (a-2) broadens the arson statute even further by now including some reckless fires. The intent element is still there in that the person must intend to start the fire, but the fire may extend out past the object of intention under (a-2). To reconcile this broadened section of the statute, the legislature did drop the degree of punishment under this section to a state jail felony.

For now, that’s a start on the basics of the Section 28.02. There are more nuances to the arson statute and situations can arise that challenge the language of this statute. Hopefully, this article will get you thinking until the next arson article….