Opinion
No. 09-10-00067-CR
Submitted on November 8, 2010.
Opinion Delivered December 1, 2010. DO NOT PUBLISH.
On Appeal from the 411th District Court, Polk County, Texas, Trial Cause No. 19197.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
A jury convicted David Earl Stanley of arson. See Tex. Penal Code Ann. § 28.02 (West Supp. 2010). The trial court sentenced Stanley to ten years in prison, probated for ten years, and assessed a $1,000 fine. On appeal, Stanley challenges: (1) the denial of his motion for a speedy trial; (2) the denial of his motion to quash the indictment; (3) his trial counsel's effectiveness; and (4) the legal and factual sufficiency of the evidence. We affirm the trial court's judgment.
Factual Background
Stanley owned a mobile home in Polk County, Texas. In February 2004, Stanley moved in with Marianne Stanley in Louisiana. On March 1, around 2:51 a.m., Stanley's mobile home burned. The mobile home had been vacant, was for sale, and was covered by both a mortgage and an insurance policy. Before the fire, Stanley told Megan Hashaw that he needed to find someone to burn his mobile home. Stanley offered to pay $1,000 and asked Hashaw to find someone, but Hashaw did not know anyone. Hashaw gave conflicting statements as to whether Stanley was at Marianne's home on the night before the fire. The morning after the fire, Hashaw was present in Marianne's home when Stanley allegedly learned of the fire. Stanley did not seem to care and, when Hashaw commented that all his belongings were destroyed, Stanley responded "[t]hat they weren't." Stanley had made suspicious statements to Hashaw, such as he planned to take Marianne gambling "so they would be on camera and not linked to the fire[]" and that "[i]f you want something done you have to do it yourself." Additionally, around the time Hashaw became aware that Stanley's mobile home had burned, Stanley asked her to wash some clothes for him and Hashaw thought she smelled gas on his clothes. Hashaw knew that Stanley drove a truck and got diesel on his clothes, but she could not say if the clothes smelled like gas or diesel. Justin Thibodeaux testified that Stanley offered to pay him $1,000 to burn his mobile home. Stanley told Thibodeaux that he could access the mobile home by boating across the lake and could throw some diesel bottles or explosives inside the home to burn it down. Detective Jerry Grissom suspected arson. Detective Kevin Kirkum searched Marianne's residence and seized several items related to the arson. Stanley's insurance company also suspected arson, but paid Stanley's claim because it could not determine that Stanley, or someone acting on his behalf, set the fire. Kyle Morris, an investigator with the State Fire Marshal's Office, testified that the fire began inside the living room. Morris could not find evidence of an ignition source or the manner by which the fire started. The K-9 unit investigated and the dog alerted to the south-most bedroom. The K-9 handler, Mark Cheney, explained that a dog may not alert to places where the fire had burned away the ignitable liquid. Morris ruled out accidental causes and concluded that the fire was "incendiary in nature . . . a set fire." Debris from the mobile home tested positive for "fuel oil," such as diesel or a gas/diesel mixture. Charles Giessing, a forensic fire investigator, also tested debris samples from the mobile home and found "[f]ireage, gasoline, and No. 2 diesel fuel in the mixture." Giessing ruled out electrical issues and other natural causes, concluding that "the fire was an intentional incendiary act by pouring some kind of flammable liquid, as in gasoline or diesel fuel, in the floor. . . ."Sufficiency of the Evidence
In issue four, Stanley contends that the evidence is legally and factually insufficient to sustain his conviction. The Court of Criminal Appeals recently held that the " Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, No. PD-0210-09, 2010 LEXIS 1240, at *2 (Tex. Crim. App. Oct. 6, 2010). For this reason, we will only address the legal sufficiency of the evidence. Under legal sufficiency review, we assess all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). "The reviewing court must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Hooper, 214 S.W.3d at 13 (quoting Jackson, 443 U.S. at 318-19). A person commits arson if he "starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with intent to destroy or damage . . . any . . . habitation . . . knowing that it is insured against damage or destruction." Tex. Penal Code Ann. § 28.02(a)(2)(B). The jury was authorized to convict Stanley as a principal or a party to the offense. See Tex. Penal Code Ann. § 7.01(a) (West 2003); see also Tex. Penal Code Ann. § 7.02(a)(2) (West 2003). The record shows that the mobile home was burned intentionally, using an ignitable fluid, such as diesel. As a truck driver, Stanley had access to such a fluid. Stanley had solicited others to set the fire, even suggesting the use of diesel bottles. Stanley's behavior following the fire, the smell of gas on his clothes, and his suspicious comments suggest that he set the fire himself. Moreover, Stanley's mobile home was for sale, subject to a mortgage, and covered by insurance, giving him a motive to set the fire. In fact, the insurance company paid Stanley's claim. The jury could reasonably conclude from all of the evidence before it that Stanley started the fire himself, or solicited someone else to start the fire, with intent to destroy or damage the habitation, knowing that it was insured against damage or destruction. See Tex. Penal Code Ann. § 28.02(a)(2)(B); see also Davis v. State, 147 S.W.3d 554, 556 (Tex. App.-Waco 2004, no pet.); Wheeler v. State, 35 S.W.3d 126, 133 (Tex. App.-Texarkana 2000, pet. ref d). Viewing all the evidence in the light most favorable to the verdict, the jury could reasonably conclude, beyond a reasonable doubt, that Stanley committed arson. See Jackson, 443 U.S. at 318-19; see also Hooper, 214 S.W.3d at 13. We overrule issue four.Speedy Trial
In issue one, Stanley contends that the trial court erred by denying his motion to dismiss the indictment for failure to afford a speedy trial. We "analyze federal constitutional speedy-trial claims "on an ad hoc basis' by weighing and then balancing the four Barker v. Wingo factors: 1) length of the delay, 2) reason for the delay, 3) assertion of the right, and 4) prejudice to the accused." Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008) (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999); Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). "While the State has the burden of justifying the length of delay, the defendant has the burden of proving the assertion of the right and showing prejudice." Id. "`In reviewing the trial court's ruling on [a] federal constitutional speedy trial claim, we apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components.'" Id. at 282 (quoting Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002)). "Review of the individual Barker factors necessarily involves fact determinations and legal conclusions, but "[t]he balancing test as a whole . . . is a purely legal question.'" Id. (quoting Zamorano, 84 S.W.3d at 648 n. 19). The State concedes that the delay between Stanley's arrest in 2004 and trial in 2009 triggers the speedy trial inquiry. See Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). Because "[i]n general, delay approaching one year is sufficient to trigger a speedy trial inquiry," the first factor weighs in favor of a speedy trial violation. Id. Under the second factor, "[a] `deliberate attempt to delay the trial' should be weighed heavily against the government," while a `"neutral reason such as negligence or overcrowded courts should be weighed [against the government] less heavily.'" Munoz, 991 S.W.2d at 822 (quoting Barker , 407 U.S. at 531). "A valid reason for the delay should not be weighed against the government at all." Id. "[D]elay which is attributable in whole or in part to the defendant may even constitute a waiver of a speedy trial claim." Id. Polk County arrested Stanley in October 2004 and federal authorities arrested him in December 2004. In May 2005, Stanley pleaded guilty to a federal firearms charge, spent time in federal prison, and was released from a halfway house in January 2006. In November 2006, Polk County indicted Stanley for arson. In December 2006, Stanley failed to appear before the trial court. In January 2007, Stanley appeared and was arraigned. Between February 2007 and November 2009, trial was delayed twenty times. At the hearing on Stanley's speedy trial motion, the State explained that the parties had agreed to each resetting, that the case was recently reset to accommodate defense counsel's scheduling conflict, and that the defense never opposed keeping the case off the trial docket. The State also argued that the delay resulted from Stanley's incarceration in Louisiana, ongoing plea negotiations with the defense, and Stanley's difficulty paying his attorney. Stanley testified that Polk County authorities knew about his federal incarceration. Stanley admitted that the defense and the State had ongoing discussions about a possible disposition, including Stanley's cooperation as a police informant, that resulted in a delay. Stanley further admitted that his case was delayed because of problems paying his defense attorney. Although Stanley was incarcerated in federal prison, the State could have attempted to bring Stanley to Texas for prosecution. See Phipps v. State, 630 S.W.2d 942, 946 (Tex. Crim. App. 1982); see also Burton v. State, 805 S.W.2d 564, 572 (Tex. App.-Dallas 1991, pet. ref'd). However, the record does not indicate that the delay was a deliberate attempt by the State to hamper the defense. See Barker, 407 U.S. at 531. Additionally, plea negotiations, agreed resettings, and Stanley's struggles to pay his attorney do not weigh against the State. See Munoz, 991 S.W.2d at 824 (`"[D]elay caused by good faith plea negotiations' is a valid reason for the delay. . . ."); see also Burton, 805 S.W.2d at 572 (By agreeing to postponements, Burton "indicated that he did not desire a speedy trial. . . ."); Burgett v. State, 865 S.W.2d 594, 597 (Tex. App.-Fort Worth 1993, pet. ref'd) ("Delay caused by acts of the accused which are beyond the control of the prosecution should not weigh against the State."). Because both parties contributed to the delay, we conclude the second factor is neutral. Regarding the third factor, "the defendant's assertion of his speedy-trial right (or his failure to assert it) is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Cantu, 253 S.W.3d at 283 (citing Barker, 407 U.S. at 531-32). "Whether and how a defendant asserts this right is closely related to the other three factors because the strength of his efforts will be shaped by them." Id. at 282-83 (citing Barker, 407 U.S. at 531-32). Stanley testified that federal authorities sent two letters to Polk County, but received no response. Stanley also sent a letter. Stanley testified, "While I was in Federal custody and I assumed charges were still pending against me . . . I proceeded with my right to speedy trial and asked for speedy trial." In December 2005, his counselor contacted Polk County and learned that charges against Stanley would not be pursued. Thus, Stanley believed that no charges were pending against him, until December 2006, when he learned of the indictment. Stanley admitted that no speedy trial request had been made before the day of trial. Defense counsel told the trial court that, in a May 2005 letter to Judge David Johnson, Stanley stated that the witnesses were old, asked for the case to proceed, and requested an appointed attorney. Defense counsel argued that the letter was an assertion of the right to a speedy trial. The State denied ever seeing the letter. Assuming that Stanley's letter asserted the right to a speedy trial, the record shows that this letter was sent to the judge who set Stanley's original bond. Thus, we cannot say that Stanley's letter alerted the trial court or the State to his assertion of the right to a speedy trial and his lack of acquiescence to the delay. Aside from the letter, once Stanley learned of the indictment, he remained silent until the day of trial, when he moved to set aside the indictment for lack of a speedy trial. See Zamorano, 84 S.W.3d at 651 n. 40. Stanley's failure to repeatedly assert the right to a speedy trial "supports an inference that [he] does not really want a trial, he wants only a dismissal." Cantu, 253 S.W.3d at 283; see Murphy v. State, 280 S.W.3d 445, 454 (Tex. App.-Fort Worth 2009, pet. ref d); see also Sinclair v. State, 894 S.W.2d 437, 440 (Tex. App.-Austin 1995, no pet.). Thus, factor three does not weigh in favor of a speedy trial violation. Factor four requires that we consider the "interests that the speedy-trial right was designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to minimize the accused's anxiety and concern, and (3) to limit the possibility that the accused's defense will be impaired." Cantu, 253 S.W.3d at 285. "Of these types of prejudice, the last is the most serious `because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.'" Id. (quoting Dragoo v. State, 96 S.W.3d 308, 316 (Tex. Crim. App. 2003)). Stanley contends that he was prejudiced by the delay because: (1) he lost the ability to serve time for the arson while confined in federal prison; (2) his liberty was restrained; (3) he suffered anxiety and concern; and (4) his ability to present a defense was impaired because several witnesses died during the delay. Because Stanley failed to present the first three grounds to the trial court, he did not meet his initial burden of proving prejudice on these grounds. See Cantu, 253 S.W.3d at 282. We limit our review to Stanley's fourth ground of prejudice. See Harrison v. State, 282 S.W.3d 718, 722 (Tex. App.-Amarillo 2009, no pet.). "In determining if the witness was believed to be material to the case, a court can consider whether there is any evidence that the defendant attempted to obtain the witness's statement during the delay." Webb v. State, 36 S.W.3d 164, 174-75 (Tex. App.-Houston [14th Dist] 2000, pet. ref'd) (citations omitted). Stanley testified that Marianne died in August 2005. Stanley knew that, in her statement, Marianne stated that Stanley admitted to burning his mobile home. Stanley testified that Marianne recanted this statement, and he claimed that her statement was "falsely typed up." Stanley also testified that a neighbor, "Mr. Bob," saw someone around the mobile home on the night of the arson. According to Stanley, Bob grew frightened and left, but was followed home. The next night, Bob's home was fire-bombed. Bob died sometime before trial. Finally, Stanley testified that witnesses saw people crossing police lines on the morning after the fire, but all these witnesses are now dead. Upon learning of the indictment, Stanley began searching for "other witnesses" who would be favorable to his case, but these people had "passed on." Regarding Marianne, Stanley did not show what her testimony would have been or why her testimony would have been material. See Webb, 36 S.W.3d at 175; see also Ervin v. State, 125 S.W.3d 542, 549 (Tex. App.-Houston [1st Dist.] 2002, no pet.). As early as May 2005, Stanley was concerned about the age of witnesses, but the record does not indicate that he took any steps to obtain statements from any potential witnesses. See Webb, 36 S.W.3d at 175; see also Ervin, 125 S.W.3d at 549. Because the record does not indicate that Stanley made a prima facie showing of prejudice, this factor does not weigh in favor of a speedy trial violation. See Ervin, 125 S.W.3d at 549. Balancing the four factors, we conclude that Stanley's right to a speedy trial was not violated. The delay is presumptively unreasonable, and the State is at fault for the initial delay. However, Stanley contributed to the delay, failed to adequately assert his right to a speedy trial, and failed to establish a prima facie case of prejudice. Under these circumstances, we conclude that the trial court properly denied Stanley's motion to dismiss the indictment for failure to afford a speedy trial. See Shaw, 117 S.W.3d at 891; see also Ervin, 125 S.W.3d at 549. We overrule issue one.Motion to Quash
In issue two, Stanley challenges the denial of his motion to quash the indictment. We first address the State's contention that Stanley's motion was untimely. A defendant must object to a defect of form or substance in an indictment before "trial on the merits commences. . . ." Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005). Stanley filed his motion three days before trial and presented the motion to the trial court before announcing ready. His motion was timely. See Wilson v. State, 398 S.W.2d 291, 293 (Tex. Crim. App. 1965); see also Tamayo v. State, 924 S.W.2d 213, 215 (Tex. App.-Beaumont 1996, no pet.). We now review the denial of Stanley's motion to quash, using a de novo standard. See Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007). The indictment alleges that "in the County and State aforesaid, [Stanley] did then and there intentionally start a fire or cause an explosion by igniting an unknown combustible liquid, with intent to damage or destroy a habitation knowing that said habitation was insured against damage or destruction[.]" In his motion to quash, Stanley argued that the indictment failed to describe the property in accordance with article 21.09 of the Code of Criminal Procedure. At the hearing on his motion, Stanley argued that the indictment failed to inform him of which habitation he allegedly burned and failed to bar re-prosecution. Stanley reasserts this argument on appeal. Article 21.09 provides, in pertinent part, that "[i]f the property be real estate, its general locality in the county, and the name of the owner, occupant or claimant thereof, shall be a sufficient description of the same." Tex. Code Crim. Proc. Ann. art. 21.09 (West 2009). This article "applies to real estate alleged qua object of the offense, but not to real estate alleged only qua situs of the offense." Franks v. State, 688 S.W.2d 502, 503 (Tex. Crim. App. 1985). In an arson case, real property is both the situs of the offense and its object. See id. The indictment should have described the habitation's general locality within Polk County. Because it did not, we proceed to a harm analysis. The failure to identify property in accordance with article 21.09 is a defect of form. See Bonner v. State, 640 S.W.2d 601, 605 (Tex. Crim. App. 1982); see Tex. Code Crim. Proc. Ann. art. 27.09(2) (West 2006); Tex. Code Crim. Proc. Ann. art. 21.02(7) (West 2009). A defect of form does not render an indictment insufficient unless the defect "prejudice[s] the substantial rights of the defendant." Tex. Code Crim. Proc. Ann. art. 21.19 (West 2009); see Smith v. State, 309 S.W.3d 10, 19 (Tex. Crim. App. 2010). "The important question is whether a defendant had notice adequate to prepare his defense[,]" which depends on: (1) "whether the charging instrument failed to convey some requisite item of `notice'"; (2) "whether, in the context of the case, this had an impact on the defendant's ability to prepare a defense"; and (3) if there was an impact, "how great an impact." Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986). In this case the indictment fails to describe the property, as required by article 21.09. To determine whether this lack of notice impacted Stanley's ability to present a defense, we consider the following factors: "(1) appellant received the information from a different source, (2) no defense was presented, (3) the defense strategy did not relate to the omission, (4) appellant indirectly received the omitted information, i.e., it was the only logical deduction to be made from the circumstances, and (5) no objection or expression of surprise was expressed at trial." Geter v. State, 790 S.W.2d 703, 705 (Tex. App.-Tyler 1990, no pet.) (internal citations omitted). Because Stanley owned the mobile home, he had personal knowledge of its location. See Robinson v. State, 764 S.W.2d 367, 373 (Tex. App.-Dallas 1989, pet. ref'd). Stanley was charged with burning one habitation and the arguments and evidence presented at trial related to that one habitation, i.e., Stanley's mobile home. Stanley's argument at trial was that someone else had a motive to burn the mobile home. His argument was not premised on the omitted description in the indictment. See id. He made no objection or expression of surprise regarding location. See Geter, 790 S.W.2d at 705. The facts demonstrate that Stanley indirectly received the omitted information; that Stanley was charged with and prosecuted for burning his own mobile home is the only logical deduction to be made from the circumstances. See id. The lack of notice did not impact Stanley's ability to defend against the offense of arson. See Adams, 707 S.W.2d at 903. Stanley is also protected from subsequent prosecution for the same offense. See Buchanan v. State, 506 S.W.2d 236, 237-38 (Tex. Crim. App. 1974) ("[A] person pleading former acquittal or conviction in this State may allege and prove the facts which show the identity of the offense although this may not appear upon the face of the indictment or in the recitals in the judgment."). Because the defect in the indictment did not prejudice Stanley's substantial rights, we overrule issue two.Ineffective Assistance
In issue three, Stanley contends that trial counsel rendered ineffective assistance by asking fewer questions than the State, offering no direct testimony, and by failing to object to improper questions, leading questions, speculation, hearsay, unqualified expert testimony. Stanley claims his trial counsel also rendered ineffective assistance by objecting and taking a witness on voir dire regarding a previously excluded matter, inviting a comment from one witness about another witness's testimony, and bolstering the credibility of the State's expert.To establish ineffective assistance, Stanley must satisfy the following test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010). "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). "Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional." Id. Stanley filed a pro se motion for new trial, alleging ineffective assistance. At the punishment hearing, the trial court denied Stanley's motion, but heard no arguments or evidence. The record is silent as to trial counsel's "tactical and strategic decisionmaking." Estrada v. State, 313 S.W.3d 274, 310-11 (Tex. Crim. App. 2010); see Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003); see also Thompson, 9 S.W.3d at 814. Moreover, Stanley cannot demonstrate that, but for counsel's alleged errors, the outcome of his trial would have been different. See Graves v. State, 310 S.W.3d 924, 929 (Tex. App.-Beaumont 2010, pet. ref d). Having failed to develop a record, Stanley cannot "defeat[] the strong presumption that the decisions of counsel during trial fell within the wide range of reasonable professional assistance." Thompson, 9 S.W.3d at 814. We overrule issue three. Having overruled Stanley's four issues, we affirm the trial court's judgment. AFFIRMED.