In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-01-00999-CR
NO. 01-01-01000-CR
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JUAN M. TORRES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause Nos. 846891 & 836443
O P I N I O N
A jury convicted appellant, Juan M. Torres, for felony murder and arson, and assessed punishment for each offense at 40 years’ confinement in prison. In five points of error, appellant contends that (1) the evidence at trial was factually insufficient to sustain his convictions, (2) he was denied effective assistance of counsel, and (3) the trial court erred by entering a deadly weapon finding in the felony murder-judgment. We modify the felony-murder judgment to delete the deadly weapon finding and affirm the judgment as modified. We affirm the arson judgment.
Background
In the spring of 2000, appellant worked at a McDonald’s restaurant. During the early morning hours on February 13, appellant, along with his brother and a co-worker, decided to break into the restaurant and steal money located in an office safe. After trying unsuccessfully to break into the safe for several hours, the trio used bolt-cutters and a blow torch to break into the safe, only to discover that the safe contained an inner-safe. Appellant and his accomplices left the restaurant after failing to open the inner-safe.
Before leaving the restaurant, appellant set fire to the office cabinets. As a result, the restaurant began to burn, and firefighters were called to the scene. Upon arriving at the scene, two firefighters entered the restaurant to ensure that no one was trapped inside. While searching the restaurant, both firefighters suffered asphyxia due to inhalation of smoke. Both died from asphyxia. Appellant was subsequently charged with felony murder and arson.
Factual Sufficiency
In his first and fifth points of error, appellant contends that the evidence at trial was factually insufficient to sustain his convictions. When reviewing factual sufficiency, we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak, or so outweighed by contrary proof, as to undermine confidence in the jury’s determination. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). Accordingly, we will reverse the fact finder’s determination only if “a manifest injustice has occurred.” Id. (quoting Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000)).
In conducting this analysis, if probative evidence supports the verdict, we may not substitute our judgment for that of the factfinder even if we disagree with the jury’s determination because the jury is the sole determiner of the facts. See King, 29 S.W.3d at 563; Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981). To avoid substituting our judgment for the factfinder’s, we must defer to determinations by the factfinder that depend on credibility assessments and resolution of conflicts in the evidence. See Johnson, 23 S.W.3d at 7-9.
A. Felony Murder
In his first point of error, appellant contends that the evidence was factually insufficient to sustain his felony murder conviction because the State failed to prove that appellant committed an “act clearly dangerous to human life.” According to appellant, the act of starting a fire in an empty, freestanding building is not clearly dangerous to human life.
Texas has codified the felony murder rule in section 19.02(b)(3) of the Penal Code, which provides, as follows, that a person commits murder if he or she:
commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
Tex. Pen. Code Ann. § 19.02(b)(3) (Vernon 1994) (emphasis added). Appellant’s felony-murder indictment alleged that, while committing the felony offense of burglary of a building, appellant committed acts clearly dangerous to human life, namely starting a fire and fleeing without extinguishing the fire. The indictment further alleged that these acts caused the death of Kimberly Smith, one of the firefighters killed in the restaurant.
Unlike some jurisdictions, the Texas Legislature has not enumerated specific felonies that, in the abstract, can support a felony-murder charge. Tex. Pen. Code Ann. § 19.02(b)(3). Instead, the Legislature required that the State prove that the specific actor, under the specifically articulated circumstances, committed some act that was clearly dangerous to human life. See Lawson v. State, 64 S.W.3d 396, 399 (Tex. Crim. App. 2001) (Cochran, J., concurring). Acts that are clearly dangerous to human life are thus determined on a case-by-case basis.
Texas courts have found acts of arson sufficient to support felony-murder convictions. See Murphy v. State, 665 S.W.2d 116, 119 (Tex. Crim. App. 1983); Jones v. State, No. 12-01-00196-CR, slip op. at 4, (Tex. App.—Tyler Aug. 14, 2002, pet. filed). We, too, find appellant’s act of arson sufficient to support his felony-murder conviction. The evidence shows that appellant intentionally set fire to wooden cabinets in the restaurant office causing the restaurant to burn down. It is clear that burning down a restaurant within the Houston city limits would trigger a rapid response from firefighters. It is also clear that a fire as severe as the one caused by appellant would place firefighters’ lives in danger. We find that the State satisfied the “clearly dangerous to human life” element of section 19.02(b)(3). See Tex. Pen. Code Ann. sec. 19.02(b)(3).
Alternatively, appellant contends that his act of arson did not cause the firefighters’ deaths. According to section 19.02(b)(3), an act clearly dangerous to human life must cause the death of an individual before the felony-murder rule applies. See Tex. Pen. Code Ann. sec. 19.02(b)(3). Appellant argues that the firefighters entered the restaurant on their own initiative without waiting for orders from their superiors. Appellant asserts that the firefighters took an unreasonable course of action that caused their deaths.
We disagree. Although some testimony suggested that the firefighters entered the restaurant without waiting for orders, other testimony suggested that the firefighters entered the restaurant with orders and that this course of action was proper under the circumstances. Additionally, the State presented testimony explaining that firefighters enter buildings under circumstances such as these to save the lives of persons who might be trapped in the flames. The jury heard the evidence and concluded that appellant’s act of arson caused the death of Kimberly Smith. We decline to usurp the jury’s function as factfinder in order to find that the firefighters acted in an unreasonable manner that resulted in their deaths. See Johnson, 23 S.W.3d at 7-9. The facts appellant relies on do not so weaken or overwhelm the State’s evidence as to render the judgment clearly wrong and manifestly unjust.
We overrule appellant’s first point of error.
B. Arson
In his fifth point of error, appellant contends that the firefighters’ deaths did not result from his arson offense. Arson is a first degree felony if it is shown that bodily injury or death resulted by reason of the commission of the offense. See Tex. Pen. Code Ann. § 28.02(a)(2)(F) (Vernon 1994). Appellant makes the same causation arguments here that he made in his first point of error. For the reasons previously stated, we reject appellant’s contention.
We overrule appellant’s fifth point of error.
Ineffective Assistance of Counsel
In his second and fourth points of error, appellant contends that he was denied effective assistance of counsel. The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Appellant must show both that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and (2) but for counsel’s error, the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93.
It is the defendant’s burden to prove ineffective assistance of counsel. Id. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. A claim of ineffective assistance of counsel must be firmly supported by the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). An appellate court will not make a finding of ineffectiveness based on speculation. Gamble, 916 S.W.2d at 93.
In his second point of error, appellant asserts that he was denied effective assistance of counsel because trial counsel should have requested an instruction on concurrent causation pursuant to section 6.04 of the Penal Code. Assuming that appellant was entitled to such an instruction, appellant still has not shown ineffective assistance. Because appellant did not file a motion for new trial, there is no evidence in the record of why appellant’s trial counsel did not request a jury instruction on concurrent causation. To find trial counsel ineffective would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1999); Gamble, 916 S.W.2d at 93; see also Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (holding trial counsel was not ineffective when record was silent as to trial counsel’s reasons for declining to request instruction on concurrent causation).
We overrule appellant’s second point of error.
In his fourth point of error, appellant asserts that he was denied effective assistance of counsel because trial counsel did not secure expert testimony regarding the origin of the fire. As noted before, appellant did not file a motion for new trial. Thus, there is no evidence in the record of why appellant’s trial counsel did not secure expert testimony regarding the origin of the fire. Again, to find trial counsel ineffective would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d at 771; Gamble, 916 S.W.2d at 93.
We overrule appellant’s fourth point of error.
Deadly Weapon Finding
In his third point of error, appellant contends that the trial court erred by entering a deadly weapon finding in the felony-murder judgment. Appellant asserts that the trial court could not enter an affirmative deadly weapon finding because (1) the jury was the trier of fact at both the guilt/innocence and punishment stages of trial, (2) the jury never found that appellant used a deadly weapon in commission of the offense, and (3) the felony-murder indictment does not allege the use of a deadly weapon.
The trier of fact is responsible for making the affirmative finding concerning use or exhibition of a deadly weapon. Ex Parte Thomas, 638 S.W.2d 905, 907 (Tex. Crim. App. 1982). Therefore, when the jury is the trier of fact, the jury must make the finding. Adams v. State, 685 S.W.2d 661, 671 (Tex. Crim. App. 1985). The finding must be express; an implied finding will not suffice. Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim. App. 1995). The jury can make an express affirmative deadly weapon finding in one of the following three ways: (1) by finding the defendant guilty as alleged in the indictment if the indictment alleges the use of a deadly weapon; (2) by finding the defendant guilty as alleged in the indictment if the indictment pled a weapon that is a deadly weapon per se; or (3) by making an affirmative finding to a special issue on use of a deadly weapon. Id. None of these findings occurred in this case.
In the instant case, the jury did not affirmatively answer a deadly weapon special issue. Rather, the jury returned a verdict finding appellant guilty as charged in the felony-murder indictment. The indictment, however, did not allege use of a deadly weapon. Instead, the indictment alleged that appellant started a fire. Because fire is not a deadly weapon per se, the trial court erred by entering a deadly weapon finding in the absence of the jury’s determination on the issue.
We sustain appellant’s third point of error and modify the felony-murder judgment to delete the deadly weapon finding. Tex. R. App. P. 43.2(b).
Conclusion
We modify the felony-murder judgment to delete the deadly weapon finding and affirm the judgment as modified. We affirm the arson judgment.
Elsa Alcala
Justice
Panel consists of Justices Taft, Alcala, and Price.
Do not publish. Tex. R. App. P. 47.4.