Melvin Donnell Swinnie v. The State of Texas--Appeal from 54th District Court of McLennan County

Swinnie v. State /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-94-307-CR

 

MELVIN DONNELL SWINNIE,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 54th District Court

McLennan County, Texas

Trial Court # 94-308-C

 

O P I N I O N

 

Melvin Donnell Swinnie was charged with arson after he started a fire in the McLennan County jail. He was convicted by a jury and, after pleading "true" to an allegation of a prior conviction, was assessed a term of thirty-five years in prison. We will overrule his points of error asserting that the evidence is insufficient to support: (1) the jury's implied finding that he intended to damage the jail; and (2) the jury's express finding that he used a deadly weapon in the process.

FACTS

Swinnie and another inmate were assigned to cell number fifteen of segregation tank two of the McLennan County jail. Prior to the fire, they were in the day room when a false fire alarm sounded. Because Swinnie did not return to his cell immediately upon being told to do so, he was confined to his cell for twenty-four hours. Unhappy with this, he set fire to a pillow that he had stuffed into an opening in the cell door. Needless to say, this caused a great deal of confusion and consternation among both the inmates and the jail personnel.

ARSON

Swinnie was indicted and convicted under section 28.02 of the Penal Code, which provides in pertinent part:

(a) A person commits an offense if he starts a fire . . . with intent to destroy or damage:

. . .

(2) any building, habitation, or vehicle:

(A) knowing that it was within the limits of an incorporated city or town;

. . .

(D) knowing that it is located on property belonging to another;

(E) knowing that it has located within it property belonging to

another; . . . .

See Tex. Penal Code Ann. 28.02 (Vernon 1994). Section 6.03(a) of the Penal Code provides that a person acts "intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." Id. 6.03(a) (Vernon 1994).

THE EVIDENCE

The uncontroverted evidence shows that (1) Swinnie started the fire; (2) the jail, a building, was damaged; and (3) Swinnie knew the jail was in the city limits of Waco, knew it was located on property not belonging to Swinnie, and knew it contained property not belonging to him. After saying he was upset with the jail officials and with the "system," he testified:

Q. So, in order -- you then went and got your pillow, ripped it open and stuffed it in the door, right? Did you use your matches or [your cellmate's] matches?

A. You know, it was just a book of matches in there. You know, like I say, we both smoke.

Q. Okay. Had matches in there. It was your intent, was it not, to strike that match?

A. Yeah, I struck the match.

Q. Yeah. And you knew that that pillow was stuffed in that door, right?

A. Because I put it in there.

Q. You put it in there. Okay. When you strike a match, what happens to the match?

A. It lights up.

Q. You got a fire, right?

A. Right.

Q. And you had this pillow stuffed in the door and you put the match on the pillow, right?

A. Uh-huh.

Q. It didn't start right off, did it?

A. No.

Q. You had to strike a number of matches, right?

A. No. I struck one match.

Q. Just one match?

A. One match.

Q. Just one match, and it immediately burst into flames?

A. Yeah.

Q. Well, okay. Now, you are aware that when you put a match to something that burns, you are going to get a fire?

A. Right.

Q. I mean, that wasn't any surprise to you that the fire started, right?

A. Right.

Q. And you knew that the pillow was in the door, right?

A. Right.

Q. And you knew that the door is part of the jail, didn't you?

A. Yeah, it's the jail, right.

Q. Okay. And you know fire damages, do you not?

A. Yes, it causes damages.

Q. Okay. So, you -- you were aware of all -- you were aware of everything that you were doing?

A. Aware, you know, that I was setting the pillow on fire, you know.

Q. That you were setting the pillow on fire, stuffed in the door?

A. Right.

Q. Of the McLennan County jailhouse?

A. Right.

Q. Which the door is part of the jail?

A. Yeah.

Q. All right. Now, in this you knew -- you know that the McLennan County Jail is in Waco, Texas?

A. Right.

Q. You know that that jailhouse is sitting on property that doesn't belong to you?

A. Yes, sir.

Swinnie further testified that he did not intend to damage the property, but was "trying to get some attention."

INTENT

Swinnie asserts that the evidence of his intent to damage the building is insufficient to sustain the conviction, pointing to Beltran v. State, which states that intent in an arson case "cannot be inferred from the mere act of burning." See Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. [Panel Op.] 1980) (citing Miller v. State, 566 S.W.2d 614 (Tex. Crim. App. 1978)). The State contends Swinnie's reliance on this concept is misplaced because intent is by its nature provable only by circumstantial evidence and the reasonable-hypothesis standard of review for circumstantial evidence cases has been rejected. See Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991). The State urges us to look at the circumstances shown by all the facts in the case.

The opinion in Beltran states that the evidence showed Beltran and others became dissatisfied with the conditions in the jail in Austin. Beltran, 593 S.W.2d at 689. A jailer observed "a large wad of flaming toilet paper fly from a cell other than [Beltran's]." Immediately thereafter, burning wads of toilet paper were tossed from Beltran's cell and two other cells. Another jailer said Beltran and others used their blankets to push the flaming wads into piles. He said that Beltran said, "Start a fire" and "Let's burn this place." The court overruled Beltran's contention that the evidence was insufficient to prove he intended to damage or destroy the building. Id.

Miller, relied on by the panel in Beltran, is itself a wholly circumstantial-evidence case. Miller, 566 S.W.2d at 616. No one saw Miller set fire to his restaurant, although the cook saw him making a hasty departure. Miller later asked the cook not to mention having seen him. Gasoline was found in carpet samples taken from the building. Miller testified that he did not set the fire or have anyone else do so. The court, quoting 5 American Jurisprudence 2nd, Arson and Related Offenses, Section 51, said:

It [intent] may also be inferred from the conduct of the accused, from the wilfulness, from the circumstances, [and] from the means employed . . . .

. . .

While the intent cannot be inferred from the mere act of burning, it may be found from all the facts in the case.

Id. at 618. Noting that the evidence showed Miller was present shortly before the fire was reported, that he left in a hurried manner, that he tried to cover up his presence, and that gasoline was present in the carpet, the court held it sufficient to sustain the jury's verdict of guilty. Id. at 619.

Evidence that a fire occurred, without more, is insufficient to allow an inference that any particular person started the fire. On the other hand, the conduct of the accused, the means employed, and the other circumstances surrounding the fire may allow the jury to infer intent. Id. at 618.

We employ a single standard of review for all cases. See Geesa, 820 S.W.2d at 156-57. Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). The trier of fact is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness' testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). We do not resolve any conflict in fact or evaluate the credibility of the witnesses. See Juarez v. State, 796 S.W.2d 523, 524 (Tex. App. San Antonio 1990, pet. ref'd).

Swinnie's testimony that he did not intend to damage the jail is not controlling. We find that a rational jury could have disregarded his testimony that he only wanted to get some attention and find, from all of the circumstances of the case, intent to commit arson. See Matson, 819 S.W.2d at 843; Williams, 692 S.W.2d 676. We overrule his first point of error.

DEADLY WEAPON FINDING

Swinnie's second contention is that the evidence is insufficient to support the jury's finding that he used or exhibited a deadly weapon during the commission of the offense. Article 42.12, section 3g(a)(2) of the Code of Criminal Procedure, provides that an affirmative finding of the use of a deadly weapon may be made:

. . . when it is shown that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited . . . .

Tex. Code Crim. Proc. Ann. art. 42.12, 3g(a)(2) (Vernon Supp. 1995). The Penal Code defines a deadly weapon as either:

(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)(17)(B) (Vernon 1994). The jury was instructed using this definition. See id.

The Court of Criminal Appeals has said its precedents establish that anything which can be used to cause the death of a human being is a deadly weapon. Tyra v. State, 897 S.W.2d 796 (Tex. Crim. App. 1995). Fire in its manner of use can constitute a deadly weapon within the definition set forth in section 1.07(a)(17)(B). Taylor v. State, 735 S.W.2d 930, 949 (Tex.App. Dallas 1987), rev'd on other grounds, No. 1184-87 (Tex. Crim. App. October 19, 1988) (unpublished); Tex. Penal Code Ann. 1.07(a)(17)(B). It has been so found by other juries. Ahmadi v. State 864 S.W.2d 776, 778 (Tex.App. Fort Worth 1993, no pet.); Taylor, 735 S.W.2d at 949.

Swinnie not only used fire, he used a burning pillow a tangible object, an "anything." See Tex. Penal Code Ann. 1.07(a)(17)(B). Death or serious bodily injury need not have actually occurred before a jury is authorized to make a deadly weapon finding; it is enough that the thing alleged is capable of causing death or serious bodily injury. Id. A rational jury could, as here, find that a burning pillow is capable of causing serious bodily injury, even when nothing else catches on fire. See Matson, 819 S.W.2d at 843. We overrule point two.

CONCLUSION

From the evidence presented at trial, we hold that a rational jury could find that Swinnie intended to damage the jail when he set fire to his pillow and that a burning pillow is capable of causing death or serious bodily injury. We affirm the judgment.

BILL VANCE

Justice

 

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 23, 1995

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