James Delois Bailey, Jr. v. The State of Texas--Appeal from 272nd District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-93-219-CR

JAMES DELOIS BAILEY, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 20,631-272

O P I N I O N

This is an appeal by defendant Bailey from his conviction for aggravated assault (with a finding of the use of a deadly weapon), for which he was assessed eight years in the Texas Department of Criminal Justice, Institutional Division.

Defendant was charged in a two-count indictment with the offenses of attempted murder and aggravated assault.

Count one alleged defendant with intent to commit murder: "Threw gasoline on Carlos Morris then lit Morris on fire, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended."

Count two alleged defendant: "Did intentionally and knowingly cause serious bodily injury to Carlos Morris by throwing gasoline on Carlos Morris, then lighting Carlos Morris on fire."

Defendant pled not guilty to the attempted murder count and nolo contendere to the aggravated assault count. Trial was before the court, which found him not guilty of attempted murder, but guilty of aggravated assault; further finding that defendant used a deadly weapon. The court assessed defendant's punishment at eight years in prison.

Defendant appeals on one point of error: "The evidence is insufficient to sustain [defendant's] conviction."

The standard for review for a sufficiency of the evidence challenge is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, S.Ct., 443 U.S. 307, 319; Griffin v. State, (Tex. Crim. App.) 614 S.W.2d 155, 159; Gold v. State, (Tex. Crim. App.) 736 S.W.2d 685, 689.

On the night of June 16, 1991, at about 11:30 P.M., in the street near "The Place," a night spot in Bryan, the defendant poured gasoline from a can into a plastic cup, crossed the street to where Carlos Morris was standing, threw the gasoline from the cup onto Morris and lit the gasoline with a lighter. Morris suffered third-degree burns over forty-three percent of his body, with severe burns to his chest, back and both arms. He was hospitalized in the John Sealy hospital burn unit where he underwent multiple operations, blood transfusions and skin grafts. His medical bills amounted to nearly $5,000. He has permanent disfigurement and limited use of his left arm.

Both the defendant and Morris had been drinking and had an argument. They had used extremely bad language toward each other and during the course of the argument the defendant had put his finger in Morris' face and Morris hit his hand. There is evidence that Morris came to the location with a pistol but had given it to his girlfriend earlier in the evening. Defendant walked away from the argument, and Morris walked across the street. Defendant then went to a truck and poured gasoline from a can into a plastic cup, walked up to Morris, threw the gas from the cup onto Morris, and then set Morris on fire with a lighter. After setting Morris on fire, defendant briefly chased him, then got into a car with his brother. The opinion of a witness was that defendant chased Morris to hurt him again, not to put out the fire. Morris had a bad reputation and been to the penitentiary for a drug offense. Defendant testified that Morris still had his gun but did not pull it when he threw the gasoline on him and torched him; that he secured the lighter from a truck after he had secured the gasoline so that he could protect himself; that he did throw the gasoline on Morris and lit it.

Defendant further testified that when he walked up to Morris, he thought it best to "stand," that is, to stay there rather than walk away as Morris would probably "run me down."

Viewing the evidence in the light most favorable to the prosecution, we believe and hold that any rational trier of fact could have found the essential elements of the crime of aggravated assault beyond a reasonable doubt.

Defendant's point of error is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed April 6, 1994

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