No. 01-02-00692-CR.
Opinion Issued November 6, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.4.
On Appeal from the 23rd District Court, Brazoria County, Texas, Trial Court Cause No. 41045
Panel consists of Justices HEDGES, NUCHIA, and HIGLEY.
ADELE HEDGES, Justice.
Appellant Sadie Proffitt was charged with two counts of murder. The jury found her guilty as alleged in the indictment, and assessed punishment at sixty years' confinement. We affirm. In five points of error, appellant claims the following: (1) the evidence is legally insufficient to prove the offense alleged in the indictment; (2) the trial court erred in failing to submit a lesser included charge to the jury; (3) the trial court erred in admitting the results of a test conducted by the State's expert, and admitting the expert's opinion testimony; (4) the trial court erred in admitting slides of the deceased victim; and (5) the trial court erred in allowing the State to play a 911 tape of the victim's voice.
Facts
Appellant resided at the Woodhollow Apartments in Lake Jackson together with her husband, David Proffitt, who was confined to his recliner. On the morning of October 10, 2000, their apartment became engulfed in flames. In the aftermath of the fire, the body of appellant's husband was located in their apartment. Four other bodies, including the bodies of Omar and Felicitia Attar, were located in the apartment directly above appellant's apartment. The State Fire Marshall and various law enforcement entities determined that the fire originated in the appellant's apartment, and that appellant intentionally set the fire in order to collect on the accidental death provision of Mr. Proffitt's life insurance policy, which would have paid $30,000 upon his accidental death, but only $525.00 upon his natural death. The Offenses Alleged in the Indictment
In her first point of error, appellant contends that there is no evidence that she knowingly caused the death of either victim, and that the trial court erred when it refused to grant her motion for directed verdict as to the first paragraph on each of the two counts of the indictment. The first paragraph of each count alleged murder by knowingly causing the death of Omar Attar and murder by knowingly causing the death of Felicitia Attar. In the second paragraph of each count, the indictment alleged murder by attempting to commit felony theft, and in the course of and in furtherance of attempting to commit felony theft, knowingly committing an act clearly dangerous to human life that caused the death of Omar Attar, and murder by attempting to commit felony theft, and in the course of and in furtherance of attempting to commit felony theft, knowingly committing an act clearly dangerous to human life that caused the death of Felicitia Attar. See Tex. Pen. Code Ann. § 19.02(b) (Vernon 2003). When a general verdict is returned and the evidence is sufficient to support a finding of guilt under any of the allegation paragraphs submitted, the verdict will be upheld. McDuff v. State , 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). Appellant does not complain that the evidence supporting her conviction is legally insufficient with respect to the second paragraph of the indictment. Because a general verdict may be upheld if the evidence is sufficient to support a finding of guilt under either paragraph, any error in refusing to grant a directed verdict as to the first paragraph of the indictment is harmless. Tex.R.App.P. 33.1. We overrule appellant's first point of error. Lesser Included Charge
In her second point of error, appellant contends that the trial court erred in refusing to submit lesser included charges of manslaughter and criminally negligent homicide to the jury. To be entitled to a charge on a lesser included offense, the lesser included offense must be included within the proof necessary to establish the offense charged, and some evidence must exist in the record that would permit a jury to rationally find that the defendant is guilty only of the lesser offense. Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App. 2002). Involuntary manslaughter is a lesser included offense to the offense of murder. Smith v. State, 644 S.W.2d 500, 502 (Tex.App.-Corpus Christi 1982, pet. ref'd). Criminally negligent homicide is a possible lesser included offense of murder, and is also a possible underlying offense of felony-murder if the underlying felony is not an underlying assaultive offense. See Thomas v. State , 699 S.W.2d 845, 849 (Tex.Crim.App. 1985) (underlying offense of murder); Kuykendall v. State , 609 S.W.2d 791, 796 (Tex.Crim.App. 1980), overruled on other grounds , 858 S.W.2d 467, 469-70 (Tex.Crim.App. 1993) (possible underlying offense of felony-murder). Likewise, because manslaughter and criminally negligent homicide differ only in the required mens rea , manslaughter is a possible lesser-included offense of felony murder. See Jones v. State , 100 S.W.3d 1, 6 (Tex.App.-Tyler 2002, pet. ref'd) ( citing Kukendall , 609 S.W.2d at 797-98, overruled on other grounds , 858 S.W.2d at 469-70). Manslaughter
Manslaughter requires proof that appellant acted recklessly; that she consciously disregarded a substantial risk of which she was aware. See Tex. Pen. Code Ann. § 19.04(a) (Vernon 2003); Tex. Pen. Code Ann. § 6.03(c) (Vernon 2003). To be entitled to an instruction on manslaughter, appellant must, therefore, demonstrate that some evidence is present in the record that would permit the jury to rationally find that, in setting the fire, she consciously disregarded a substantial risk of death, of which she was aware. She argues that the following evidence suggests she was aware that "her actions in setting the fire might place others at risk of death for which they would need to be warned by a smoke detector and rescued [b]y emergency personnel[:]" (1) there was no battery in her smoke detector, nor was a battery recovered from her apartment; (2) appellant delayed calling 911 to report the fire; and (3) appellant was aware that other people were home at the time the fire started. We disagree that this evidence demonstrates that appellant was guilty only of manslaughter. Criminally Negligent Homicide
Criminally negligent homicide requires proof that the defendant acted with criminal negligence: that she should have been aware of a substantial and unjustifiable risk that death would occur. See Tex. Pen. Code Ann. § 19.05(a) (Vernon 2003); Tex. Pen. Code Ann. § 6.03(d) (Vernon 2003). Appellant contends that "setting a chair on fire in an apartment creates a substantial and unjustifiable risk of death" and that the following evidence supports her contention that she was unaware of that risk, and therefore entitled to an instruction on the lesser included offense of criminally negligent homicide: (1) the flashover stage of the fire would occur within six or seven minutes of it being set, and appellant was unaware of this risk; (2) she left her insurance papers in the apartment, evidencing that she did not think the fire would grow to consume the entire apartment; (3) she left her eyeglasses in the apartment; (4) she ran into the cold night wearing only her nightgown; (5) she left her purse, its contents, and her identification in the apartment; (6) she ran past two pair of shoes as she exited the apartment; (7) she left several valuable guns in her apartment; (8) she stated that she and her son both tested the smoke detector in her apartment, and that it was working; (9) appellant attempted to extinguish the fire; (10) her hair was singed by the fire; (11) she inquired into whether the children residing in the apartment above her unit had escaped; and (12) her medical records described her as distraught, that her hair was burned, and that she had soot on her body. We disagree that this evidence supports appellant's contention that she was unaware of the substantial and unjustifiable risk of death caused by her setting her apartment on fire. Appellant was accused and convicted of knowingly causing the deaths of Omar and Felicitia Attar, and/or knowingly starting a fire in her apartment, an act which is clearly dangerous to human life. The evidence she presents does not amount to evidence upon which a jury could rationally find that she only acted recklessly or with criminal negligence with respect to setting the fire and that she did not knowingly set the fire. See Mathis , 67 S.W.3d at 926. We overrule appellant's second point of error. Test Results and Expert Testimony
In her third point of error, appellant contends that the trial court erred in admitting into evidence the results from an experiment conducted by Dr. DeHaan, the State's expert witness, and in admitting his opinion testimony regarding the cause of the fire. She contends that the test conducted by the State's expert fails to satisfy the reliability requirements of Hartman v. State, 946 S.W.2d 60 (Tex.Crim.App. 1997). Standard of Review
The decision as to whether an expert witness is qualified to testify is a matter committed to the trial court's discretion. Harris County Hosp. Dist. v. Estrada , 872 S.W.2d 759, 762 (Tex.App.-Houston [1st Dist.] 1993, writ denied). The decision to admit scientific testimony should not be overturned absent an abuse of discretion. Wyatt v. State , 23 S.W.3d 18, 27 (Tex.Crim.App. 2000). A trial court enjoys wide latitude in determining whether expert testimony is admissible. Hernandez v. State , 53 S.W.3d 742, 750 (Tex.App.-Houston [1st Dist.] 2001, no pet.). The trial court abuses its discretion when its decision is so clearly wrong as to fall outside the zone of reasonable disagreement and when the trial court acts arbitrarily and unreasonably, without reference to any guiding rules or principles. Galliford v. State , 101 S.W.3d 600, 604 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Analysis
Scientific expert testimony is admissible if it is sufficiently reliable to assist the jury in reaching accurate results. Hartman v. State, 946 S.W.2d 60, 62 (Tex.Crim.App. 1997). In determining reliability, (1) the underlying scientific theory must be valid, (2) the technique applying the theory must be valid, and (3) the technique must have been properly applied on the occasion in question. Id. at 62. Appellant states that she does not object to the underlying theory of fire investigation, but contends that the technique Dr. HeHaan used in applying the theory was invalid because (1) the experiment Dr. DeHaan conducted adhered only to portions of the guidelines of the State of California Department of Consumer Affairs Bureau of Home Furnishings and Thermal Insulation Technical Bulletin 116 (Technical Bulletin 116), (2) the National Fire Prevention Association (NFPA) does not establish any procedures or protocols for the test he conducted, and (3) there were dissimilarities between the test conducted by DeHaan and the actual occurrence. Validity of Technique
Dr. DeHaan testified that the purpose of his experiment differed from the purpose of a test conducted pursuant to Technical Bulletin 116 and therefore deviated from its guidelines. He testified that, while the protocol described in Technical Bulletin 116 is intended for testing furniture so that manufacturers may have a uniform performance test for them to determine the ignitability of their products when tested by the State of California, he was not testing the chair to determine its ignitability for the purposes of California's product safety standards; the test he conducted is distinguishable from the test detailed in Technical Bulletin 116 because Technical Bulletin 116 tests the ignition performance of the upholstery by application of the heat source or flame directly to the upholstery, whereas the heat source in DeHaan's experiment was applied to a cotton sheet; and the purpose of his experiment was to determine if a single match would ignite the chair, considering that the other investigators previously conducted extensive cigarette testing, and that the two cigarettes he placed on the chair self-extinguished within twenty-five minutes. Regarding whether Dr. DeHaan properly applied scientific methodology in performing the experiment, he testified that he has served as a member of the technical committee of the NFPA, which publishes a document entitled, NFPA 921 Guide for Fire and Explosion Investigations. He testified that this document serves as a guide for fire investigators across the country; and its purpose is to guide investigators through the information-gathering process needed for a scientific analysis, and it provides a step-by-step process that is to be followed to reliably establish the origin of and cause of a fire or explosion. Although the NFPA does not describe a specific procedure or protocol for fire testing, the NFPA does set forth methodology on how to apply the science of fire investigation. Dr. DeHaan testified that he properly applied the scientific methodology set forth by the NFPA in this case, and that the NFPA's methodology is considered reliable in the scientific community of investigators who investigate the cause and origin of a fire. Although defense counsel established that the experiment conducted by Dr. DeHaan did not comply with the procedure enumerated by Technical Bulletin 116, Dr. DeHaan testified that his investigation complied with NFPA methodology on how to apply the science of fire investigation. Considering that DeHaan testified that the NFPA has set forth methodology on how to apply the science of fire investigation, and that the NFPA's methodology is considered reliable in the scientific community of investigators who investigate the cause and origin of a fire, the absence of a specific published procedure or protocol to be employed for the specific type of fire that occurred in the instant case does not affect the reliability, and therefore admissibility of the evidence, but only affects its weight. Hernandez , 53 S.W.3d at 749-50. We agree with the trial court that Dr. DeHaan's technique was valid. Dissimilarities Between Occurrence and Experiment
Appellant also contends that the trial court erred in admitting the experiments because they were not conducted under conditions similar to those of the offense. Specifically, she argues the experiment should have been excluded because (1) the test did not allow for three years of constant wear that the chair involved in the occurrence was subject to, and (2) the test was complicated by the fact that the chair involved in the occurrence may have had some materials in it which might provide a bridge between a cigarette and a large fire. To render admissible evidence of an experiment made out of court and without the presence of the opposing party, there must be a substantial similarity between the conditions existing at the time of the experiment and those surrounding the occurrence giving rise to the litigation. Wells v. HCA Health Servs., Inc. , 806 S.W.2d 850, 853 (Tex.App.-Fort Worth 1990, writ denied). However, the conditions do not need to be identical; dissimilarities affect the weight and not the admissibility of the evidence. Cantu v. State , 738 S.W.2d 249, 255 (Tex.Crim.App. 1987). When there is a dissimilarity in the conditions, the admission of the experiment is within the trial court's discretion if the differences are minor or are explained to the jury. Fort Worth Denver Ry. v. Williams, 375 S.W.2d 279, 282 (Tex. 1964). Here, the record reflects that the dissimilarities between the experiment and the occurrence, which were minor, were explained to the jury, and it was therefore within the sound discretion of the trial court to allow the evidence. Any dissimilarities affected the weight of the evidence, and appellant was afforded the opportunity to cross-examine Stewart on the dissimilarities complained about on appeal. We agree with the trial court that Dr. DeHaan's experiment and his opinion on the cause of the fire were reliable. Therefore, we will not disturb its ruling. Morales v. State , 32 S.W.3d 862, 865 (Tex.Crim.App. 2000). We overrule appellant's third point of error. Slides of the Deceased Victim and the 911 Tape
In her fourth and fifth points of error, appellant contends the trial court erred by admitting slides of the deceased victims and an audio recording of a victim's 911 call, because the probative value substantially outweighed the danger of unfair prejudice. Appellant's brief, however, fails to conform with Tex.R.App. P. 38.1(h), because in that it does not provide any citation to authority in support of these contentions. We therefore overrule appellant's fourth and fifth points of error. Tex.R.App.P. 38.1(h); Modden v. State , 721 S.W.2d 859, 863 (Tex.Crim.App. 1986). Conclusion
The judgment of the trial court is affirmed.