No. 04-02-00741-CR.
Delivered and Filed: January 21, 2004. DO NOT PUBLISH.
Appeal from the 178th Judicial District Court, Harris County, Texas, Trial Court No. 922627, Honorable Belinda Hill, Judge Presiding. Affirmed.
The Honorable Belinda Hall signed the trial court's judgment. The Honorable William T. Harmon presided over the trial.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice and Karen ANGELINI, Justice.
Opinion by: KAREN ANGELINI, Justice.
Leo Jameric Berry was accused of starting a fire in which a baby died. Berry was convicted of arson and sentenced to ninety years imprisonment. He brings four issues on appeal. We overrule all four issues and affirm the judgment of the trial court.
Background
Appellant Leo Jameric Berry met Joe Colquitt at a bus stop, and they became friendly. Berry would stay with Colquitt at Colquitt's apartment in Houston, Texas. Colquitt lived in the apartment with his thirteen-month-old adopted daughter, Serenity. When Colquitt went to work, his friend, Brandon Williams, would babysit Serenity. On June 27, 2001, Colquitt went to work around 2:30 p.m. Williams was babysitting Serenity. Berry was also at the apartment. During the afternoon, Colquitt called home many times to see how Serenity was doing. And, later Colquitt learned from Williams and some other friends that Berry was telling people that Colquitt had given Berry AIDS. Colquitt, who is HIV positive, became angry and told Williams to tell Berry to leave the apartment. Berry said he would not leave unless Colquitt told Berry himself. Colquitt then talked to Berry over the phone and again told him to leave. According to Williams, Berry then "started acting wild." Berry "started playing with the stove and stuff, throwing everything on the floor." Berry poured alcohol on the floor and tried to ignite the alcohol. Williams called Colquitt and reported what was happening. Colquitt told Williams to call the police. Apparently aware that Williams was going to call the police, Berry cut the phone cord with a knife. Williams went to the door so that he could call from another apartment. Berry, holding the knife, tried to block Williams from leaving. Williams was able to get around Berry, went downstairs, and called for help. Meanwhile, Serenity was in her bed. Colquitt then called the apartment, and Berry talked to him on a phone that was still working. According to Colquitt, Berry said, "I'm burning your house down." When Williams went back upstairs, he saw smoke coming from Colquitt's apartment. Williams could not get inside because the door was locked. When the firefighters arrived on the scene, Williams told them that a baby was still inside the apartment. The firefighters extinguished the fire and found Serenity still in her bed. She was dead, and her body was covered in soot. The window to her bedroom was open, despite the fact that Colquitt always kept the window closed and locked. Witnesses saw Berry at a nearby gasoline station with severe burns on his back and right arm. When an ambulance drove by the gasoline station, Berry ran the opposite way to a nearby residence. Another ambulance was dispatched to the residence. When EMS personnel arrived, they saw Berry spraying his back with water from a garden hose. Berry had severe burns on the back of his head, his back, his hands, and the backs of his arms. Berry identified himself to the EMS officers. One of the EMS officers asked Berry how he had burned himself. Berry said that he was burned "because he was playing with a candle and alcohol, him and his friend." Berry then said he had been burned at "his apartment," giving the address of Colquitt's apartment. When asked if anyone else was in the apartment, Berry said that his baby was in the apartment. The medical examiner determined that smoke inhalation and carbon monoxide toxicity caused Serenity's death. Notice of Intent to Seek Deadly Weapon Finding
In his first issue, Berry argues that the State failed to give pretrial notice of its intent to seek an affirmative finding that Berry had used or exhibited a deadly weapon during the commission of the offense. During the punishment phase, the jury was asked to determine whether Berry "used or exhibited a deadly weapon, namely fire, during the commission of the offense or during the immediate flight therefrom." The jury responded, "We do." If the State intends to seek a finding that during the commission of an offense the defendant used or exhibited a deadly weapon, it must give written notice to the defendant. Ex parte Brooks, 847 S.W.2d 247, 248 (Tex.Crim.App. 1993). The notice may be contained in an indictment or in any other written pleading. Id. "[T]he defendant is simply `entitled to notice in some form that the use of a deadly weapon will be a fact issue at the time of prosecution.'" Id. (quoting Ex parte Beck, 769 S.W.2d 525, 526 (Tex.Crim.App. 1989)). Here, the State argues that the indictment sufficiently gave Berry notice that the use of a deadly weapon would be a fact issue at trial. The indictment alleges that Berry on or about June 27, 2001, did then and there unlawfully, start a fire by igniting a flammable substance with the intent to destroy and damage a habitation, knowing the habitation was within the incorporated limits of a city, namely Houston and death was suffered by Serenity Colquitt by reason of the Defendant's commission of this offense. For support, Berry cites Sanders v. State, 963 S.W.2d 184 (Tex. App.-Corpus Christi 1998, pet. ref'd). In Sanders, the indictment alleged that the appellant "did then and there intentionally and knowingly enter a habitation without the effective consent of Betty Ann Gardner, the owner, and therein attempted to commit and committed the felony of aggravated assault." Id. at 188. The State emphasized that the court of criminal appeals and intermediate appellate courts have routinely held that an allegation of serious bodily injury or death caused by some act or instrument is sufficient notice for a deadly weapon finding. Id. The State, therefore, argued that by alleging appellant committed aggravated assault, the indictment also alleged appellant committed serious bodily injury, which would satisfy the notice requirement. Id. The Thirteenth Court of Appeals disagreed. The court noted that an indictment alleging "serious bodily injury" is sufficient notice of the State's intent to seek a deadly weapon finding, if the indictment also alleges the serious bodily injury was caused by some act or instrument. Id. at 189; see Ex parte Brown, 773 S.W.2d 332, 333 (Tex.Crim.App. 1989). However, because the indictment did not allege the use of a deadly weapon nor specify that the aggravated assault was committed by some act or instrument, the court held that the trial court erred in submitting the deadly weapon issue to the jury. Sanders, 963 S.W.2d at 189. We, however, disagree with Berry that Sanders controls here. Unlike the indictment in Sanders, the indictment here does allege that Serenity's death was caused by some act or instrument. We believe that this case is more like the facts presented in Ex parte Beck, 769 S.W.2d 525 (Tex.Crim.App. 1989), than those in Sanders. In Beck, the court of criminal appeals held that where the indictment comports with the statutory definition of "deadly weapon," it gives sufficient notice to the defendant of the State's intention to pursue a deadly weapon finding. Id. at 527-28. Section 1.07(a)(17)(B) of the Texas Penal Code defines a deadly weapon as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon 2003). In Beck, the indictment alleged that the appellant caused the death of the victim by shooting him with a gun. The court of criminal appeals reasoned that "[i]t is apparent that any allegation which avers a death was caused by a named weapon or instrument necessarily includes an allegation that the named weapon or instrument was, `in the manner of its use . . . capable of causing' (since it did cause) death." 769 S.W.2d at 526 (emphasis in original) (alterations in original) (quoting section 1.07(a)(17)(B) of the Texas Penal Code). As such, the court concluded that the allegation in the indictment that appellant caused the death of the victim by shooting him with a gun was sufficient notice. Id. Here, the indictment alleges that Berry "did then and there unlawfully, start a fire by igniting a flammable substance . . . and death was suffered by Serenity Colquitt by reason of the Defendant's commission of this offense." (emphasis added). The indictment, thus, alleges that Serenity's death was caused by Berry's act. Although the indictment does not specifically state that Serenity's death was caused by Berry starting a fire, the phrase "Defendant's commission of this offense" necessarily refers to Berry "unlawfully start[ing] a fire by igniting a flammable substance." Like Beck, it is apparent that the State intended to prove that the fire was "in the manner of its use . . . capable of causing death." Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon 2003). The indictment, therefore, gave Berry sufficient notice that the State would attempt to prove that the fire was used in a manner that was capable of causing death. We overrule Berry's first issue. Sufficiency Deadly Weapon Finding
In his second issue, Berry argues that during the punishment phase, there was legally insufficient evidence that Berry used or exhibited a deadly weapon. According to Berry, the State did not re-offer evidence presented during the guilt/innocence phase of the trial, and that evidence presented during the guilt/innocence phase does not "carry over" to the punishment phase. However, as pointed out by the State, there is no requirement that evidence admitted in the guilt/innocence phase be re-offered to be considered at punishment. Trevino v. State, 100 S.W.3d 232, 238 (Tex.Crim.App. 2003); Buchanan v. State, 911 S.W.2d 11, 13 (Tex.Crim.App. 1995); see also Ex parte Kunkle, 852 S.W.2d 499, 502 (Tex.Crim.App. 1993) (noting that appellant did not reintroduce evidence at punishment, "but because evidence introduced at the guilt/innocence stage may be considered at punishment," the court addressed "the evidence as if it had been introduced and argued at punishment"). We, therefore, overrule Berry's second issue. Extraneous Bad Act
In his third issue, Berry contends that during the punishment phase, the trial court erred in allowing evidence of an extraneous bad act. Specifically, Berry complains of the testimony of Robert Christenson, a captain with the fire department in Flint, Michigan. Christenson testified that on April 30, 1992, he and thirteen other firefighters responded to a fire at 306 West Thackery in Flint, Michigan. A single-story home with a basement was on fire. The firefighters first extinguished a fire in the basement. Then, they found another fire in a bedroom. According to Christenson, "a Leo Berry" admitted to starting the fires. At no point during this testimony did Berry's attorney object. See Tex.R.App.P. 33.1(a)(1)(A) (requiring appellant to make a timely objection). Berry's attorney later objected to the incident report being admitted into evidence. However, by this point, any objection was too late, as Christenson had already testified about the incident in question. See Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App. 1986) (holding that to show harm, the excluded evidence must be controlling on a material issue and not cumulative of other evidence). We, therefore, overrule Berry's third issue. Instruction
In his fourth issue, Berry argues that the trial court erred in failing to instruct the jury members during the punishment phase that before they could consider any extraneous bad act by Berry, they had to believe that he committed the extraneous act beyond a reasonable doubt. The State agrees that the trial court erred. A trial court must give a reasonable doubt instruction regarding extraneous offenses even if a defendant does not request one. Huizar v. State, 12 S.W.3d 479, 483-84 (Tex.Crim.App. 2000). However, the State argues that the error was harmless. Because Berry did not object to the omission of the instruction, we will reverse only if the error is egregious and created such harm that Berry did not receive a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim. App. 1985) (op. on reh'g). Appellant bears the burden of showing that he suffered actual, not just theoretical, harm. Dickey v. State, 22 S.W.3d 490, 492 (Tex.Crim.App. 1999). The degree of harm is assessed "in light of the entire jury charge, the state of the evidence, including contested issues and weight of the probative evidence, the argument of counsel, and all other relevant information revealed by the record as a whole." Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App. 2002). Here, because Berry failed to object to Christenson's testimony of Berry's extraneous bad act, there is no showing that the trial court abused its discretion in admitting the testimony. See id. at 227 (noting that there was no showing that the trial court had abused its discretion in admitting testimony of extraneous bad act). Therefore, "possible harm to [Berry] because of the admission of evidence of extraneous offenses is not the issue." Id. at 228. "The harm which must be considered is the impact of the omission in the jury charge of a reasonable-doubt instruction." Id. According to Berry, there was little evidence connecting him to the arson in Michigan. Thus, the trial court's failure to instruct the jury on the reasonable-doubt standard of proof egregiously harmed him. We disagree. First, there was substantial evidence connecting Berry to the arson incident in Flint, Michigan. Christenson testified that "a Leo Berry" told him that he had set the house on fire at 306 West Thackery in Flint, Michigan. Tracy Burns, a court liaison officer for the 178th Judicial District Court in Harris County, Texas, testified that she had met with Berry when he received probation for credit card abuse in 2000. According to Burns, Berry indicated that he had been arrested for arson in Flint, Michigan. Berry was fourteen years old at the time of this incident in Michigan. This evidence was uncontroverted. Second, although the jury assessed punishment at ninety years, the facts in this case alone more than justify the jury's sentence: Berry, knowing that Serenity was still in the apartment, set fire to the apartment and then left through Serenity's window, leaving her to die. Had the proper jury instruction been included, the State's case would not have been any less persuasive. For these reasons, failure to include the proper jury instruction did not egregiously harm Berry. We overrule Berry's fourth issue. Conclusion
Having overruled all issues, we affirm the judgment of the trial court.