Summary
concluding that trial court did not err in refusing to admit evidence under rule of optional completeness where such evidence was cumulative of other properly admitted evidence
Summary of this case from Panus v. StateOpinion
No. 04-16-00702-CR
04-30-2018
Robert Thomas ZUKEVICH, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B15153
Honorable Rex Emerson, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED AS MODIFIED
A jury convicted appellant Robert Thomas Zukevich of arson, enhanced by a deadly weapon finding. On appeal, Zukevich raises four issues, arguing: (1) the evidence is insufficient to support the deadly weapon findings; (2) the trial court erred in denying his request to play the entire police video after the State played a portion of it for the jury; (3) the evidence is insufficient to prove he recklessly damaged or destroyed a building; and (4) the evidence is insufficient to support the attorney's fees assessed in the judgment because the presumption of continued indigence was not rebutted. We modify the judgment to delete the assessment of attorney's fees and affirm the judgment as modified.
BACKGROUND
Zukevich was charged with the second-degree felony offense of arson by starting a fire with the intent to damage or destroy a building. At trial, the jury heard testimony from Deputy Alex Monroe of the Kerr County Sheriff's Office. Deputy Monroe testified he was dispatched one evening to respond to an arson in progress. According to the dispatch, a local R.V. repair shop, owned by Greg and Candace Dinsmore, was engulfed in flames and the suspect was believed to be in the area. The suspect was described as a dark-haired male wearing a blue t-shirt. Deputy Monroe testified that after receiving the dispatch, he immediately activated his dashboard video camera and proceeded to the scene.
When he arrived at the scene, he saw a woman, later identified as Candace Dinsmore, trying to put out a small fire around a telephone pole near the shop. Deputy Monroe testified he also saw a man, who matched the suspect's description, standing in the middle of the street waving his arms. Deputy Monroe testified he got out of his vehicle, approached the suspect, subdued him, and placed him in the back of another deputy's vehicle.
Deputy Monroe testified that after he placed the suspect, later identified as Zukevich, in the police vehicle, he walked around the property. According to Deputy Monroe, the main building on the property was not engulfed in flames; however, there was evidence that multiple fires had been set in and around the building and on the property. Deputy Monroe testified he took pictures of several areas, both inside and outside of the main building that were either covered in gasoline or fire-damaged. Some of these images depicted large puddles of gasoline around the foundation of the building, and other images depicted scorched and charred markings against the walls of the main building. Deputy Monroe described the burned areas as "warm" and "fresh." Deputy Monroe also took pictures of multiple gas cans and aerosol cans discovered on the property.
The jury also viewed a portion of the video from Deputy Monroe's dashboard video camera, which depicted the events described above. The video shows Deputy Monroe driving down the road until he sees a man crouched near the base of a telephone pole located in front of the repair shop. A small flame can be seen at the base of the telephone pole. As Deputy Monroe passes the property, the man waves his arms at the deputy's vehicle. Deputy Monroe reverses his vehicle and pulls into the driveway of the repair shop. He immediately exits his vehicle and approaches the man with his gun drawn, telling the man to get down on the ground. Around that same time, a woman — later identified as Ms. Dinsmore — quickly runs to the telephone pole and begins stomping her foot at the base of the telephone pole. Another man, later identified as Greg Dinsmore, enters the frame and runs toward Ms. Dinsmore, who points toward the repair shop. The video then shows both of the Dinsmores running toward the repair shop.
In addition to the dashboard camera video, the jury heard Ms. Dinsmore's recorded 911 call. The recording begins with Ms. Dinsmore telling the 911 operator "there is a guy lighting our shop and our house is on fire, threatening me." The recording continues with Ms. Dinsmore stating the man is standing on her property with a lighter and he is pouring gas on the repair shop. Ms. Dinsmore tells the 911 operator that the man told her she took his family and he was going to kill her. She states the man appears to be under the influence of drugs. The 911 operator contacts the sheriff's office, and Ms. Dinsmore continues, stating the shop is on fire and the man is lighting an electrical pole on fire. The call continues for almost five minutes with Ms. Dinsmore repeatedly stating the shop is on fire.
The jury also heard testimony from Zukevich, who testified he was under the belief that his family had been kidnapped and was being held hostage at the repair shop. Zukevich explained that when he arrived at the property, he performed a perimeter check, looking for his parents. Zukevich further stated he walked inside the repair shop, shouting for his parents, and when nobody answered, he started looking for a phone. Zukevich continued, explaining he went to the telephone pole located on the corner of the property, lit his hat on fire, and threw his hat outside the shop. According to Zukevich, he was trying to make smoke to get the attention of law enforcement. At no point did he intend to pour gasoline on the building; however, Zukevich also recalled taking a gas container and aerosol can from the shop. Zukevich further testified that when Ms. Dinsmore and the police arrived at the property, there was no fire. According to Zukevich, he had extinguished any signs of a fire by that time. On cross examination, Zukevich admitted he was under the influence of controlled substances that evening. The record also reflects that his parents and family members were safe and not on the property. In fact, no one other than Zukevich was in the shop or on the property until Ms. Dinsmore arrived.
The jury ultimately found Zukevich guilty of a lesser-included arson offense involving reckless damage to a building. Additionally, the jury returned a finding that Zukevich used gasoline and fire as deadly weapons. The trial court sentenced Zukevich to fourteen years' confinement, and this appeal followed.
ANALYSIS
As noted in the introduction, Zukevich raises four issues on appeal. In three issues, Zukevich challenges the sufficiency of the evidence, specifically contending: (1) the evidence is insufficient to support the deadly weapon findings; (2) the evidence is insufficient to prove he recklessly damaged or destroyed a building; and (3) the evidence is insufficient to support the trial court's order to pay his court-appointed attorney's fees. In addition to his sufficiency challenges, Zukevich contends the trial court erred in denying his request to play the entire video recording from Deputy Monroe's dashboard video camera after the State played a portion of it for the jury.
Sufficiency of the Evidence
A. Standard of Review
When evaluating the sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational juror could have found the essential elements of the crime beyond a reasonable doubt. Cary v. State, 507 S.W.3d 761, 766 (Tex. Crim. App. 2016) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Marshall v. State, 479 S.W.3d 840, 845 (Tex. Crim. App. 2016). This standard requires us to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be afforded their testimony. Cary, 507 S.W.3d at 757; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Moreover, we presume the factfinder resolved any conflicting evidence, and as such, we defer to that resolution. Cary, 507 S.W.3d at 757; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The jury can choose to believe some, all, or none of the testimony provided by any witness, and give different weight to different testimony if it so chooses. Baez v. State, 486 S.W.3d 592, 594 (Tex. App.—San Antonio 2016, pet. ref'd).
B. Deadly Weapon Finding
As stated above, Zukevich contends the evidence is insufficient to support the deadly weapon findings. According to Zukevich, because no one was present on the property when he committed the offense, neither the gasoline nor the fire were capable of causing death or serious bodily injury. For support, Zukevich points out that in cases where courts upheld deadly weapons findings based on the use of gasoline or fire, people other than the defendant were present during the commission of the offense, and therefore, capable of being injured. See, e.g., Mims v. State, 335 S.W.3d 247, 249 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) (holding fire was deadly weapon because appellant used it to kill her husband); McDowell v. State, 225 S.W.3d 294, 297 (Tex. App.—Texarkana 2007, no pet.) (affirming jury's finding that gasoline was deadly weapon when evidence showed two firefighters were injured when trying to put out fire). Zukevich also relies on vehicle-as-a-deadly weapon cases, arguing deadly weapon findings have been held to be proper only when the evidence showed the vehicle was either recklessly or negligently used against another person.
Section 1.07(a)(17) of the Texas Penal Code defines "deadly weapon" as:
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; orTEX. PENAL CODE ANN. § 1.07(a)(17) (West Supp. 2017). By statute, neither gasoline nor fire are deadly weapons per se. Id. Whether gasoline or fire is a deadly weapon depends on whether the manner in which the gasoline or fire was used, or was intended to be used, was capable of causing death or seriously bodily injury. Mims, 335 S.W.3d at 250.
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
Here, there is evidence that when Ms. Dinsmore arrived at her repair shop, it was on fire and Zukevich was running toward her vehicle, threatening to kill her. There is also evidence Ms. Dinsmore not only saw parts of her repair shop on fire, but also saw Zukevich pour gasoline on her repair shop and start another fire at the base of the telephone pole located on the property. Moreover, the evidence shows the repair shop is located next to a parking lot containing recreational vehicles as well as other commercial shops; thus, it was reasonable for the jury to infer that any ignited gasoline could cause a large fire that was capable of spreading and causing death or serious bodily injury to those in the area, including Ms. Dinsmore. Zukevich, however, contends that because no one was on the property when he committed the offense, the deadly weapon findings are not supported by the evidence. We disagree.
As pointed out by the Texas Court of Criminal Appeals, "something becomes a deadly weapon because it is capable of causing death or serious bodily injury, not because it actually does so." Pruett v. State, 510 S.W.3d 925, 928 (Tex. Crim. App. 2017) (emphasis added). In Pruett, the defendant set fire to the back of a house he inherited. See id. at 927. When he set the house on fire, he knew no one was home. Id. When the fire department arrived on the scene, a large part of the fire had already been put out by a neighbor with a garden hose and the remaining fire was subsiding. Id. On appeal, the defendant argued the evidence was insufficient to support a deadly weapon finding because the fire did not actually kill or seriously harm anyone. Id. The court of criminal appeals disagreed, reasoning that under the plain language of the statute, a deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Id. at 928. "The provision's plain language does not require that the actor actually intend death or serious bodily injury." Id.; see also Dominguez v. State, 363 S.W.3d 926, 931 (Tex. App.—Austin 2012, no pet.) ("The placement of the word 'capable' is crucial to understanding this method of determining deadly weapon status."). Accordingly, when viewing the evidence in the light most favorable to the finding, a reasonable juror could have found the manner in which Zukevich used the gasoline and fire qualified them as deadly weapons.
Zukevich asserts, however, that we should rely on vehicle-as-a-deadly weapon cases, arguing that in those cases, a deadly weapon finding is proper only when the evidence showed the vehicle was either recklessly or negligently used against another person. Zukevich's argument, however, is misplaced. Again, to determine whether the gasoline and fire are deadly weapons, the relevant inquiry is whether the fire and gasoline, as they were used by Zukevich, were capable of causing death or serious bodily injury — not whether the fire or gasoline were being used against a specific person. See Pruett, 510 S.W.3d at 928.
Moreover, as pointed out by the court in Pruett, "arson cases are not entirely analogous to the vehicle-as-a-deadly-weapon cases. An arsonist is not the same as an intoxicated driver, and the degree of danger and harm that each offender is capable of causing is materially different." Id. Fire, unlike a vehicle, is inherently dangerous; fire when aided by an accelerant poses a threat to the lives of neighboring individuals as well as firefighters who will more than likely respond to the emergency. Id. Here, the jury heard evidence that Zukevich was pouring gasoline and starting multiple fires on and around the repair shop; the jury also heard evidence that multiple fires were burning when Ms. Dinsmore pulled up to her property. Thus, viewing the evidence in the light most favorable to the finding, we conclude a rational juror could have found beyond a reasonable doubt that the fire was capable of causing death or serious bodily injury. We therefore hold the evidence was sufficient to support the jury's deadly weapon findings.
C. Recklessly Damaged or Destroyed a Building
Zukevich next argues the evidence is insufficient to support his conviction of the lesser-included offense of arson because there is no evidence he recklessly damaged or destroyed a building. According to Zukevich, there is no evidence he actually damaged the repair shop. Zukevich contends that "[a]t best, the evidence showed there was some very slight smoke/char marks along the bottom of some of the masonry of one of the buildings and what appears to be a soot mark on the concrete slab of the building." To further support his argument, Zukevich points out there was no evidence that the value or usefulness of the building was impaired.
Here, Zukevich was ultimately convicted of the lesser-included offense of arson as set out in section 28.02(a-2) of the Texas Penal Code. Under section 28.02(a-2), a person commits the offense of arson if he "intentionally starts a fire or causes an explosion, and in doing so, recklessly damages or destroys a building." TEX. PEN. CODE ANN. § 28.02(a)(2)(A). Zukevich relies on the fact that little, if any, damage occurred to the repair shop to argue the evidence is insufficient to support his conviction.
However, the record reflects the repair shop sustained charring and burn marks due to the fire intentionally started by Zukevich. Deputy Monroe specifically testified about the burn marks on the walls of the repair shop, explaining that "charring went up the base of the wall" and "the grout [was] scorched." Deputy Monroe further testified there were burn marks on the slab of the building and burned areas on the outside of the back wall of the repair shop. Moreover, the jury saw pictures of the scorched and charred markings on the cement floor of the repair shop and outside walls of the repair shop. Accordingly, viewing the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to support the jury's finding that Zukevich recklessly damaged the repair shop.
D. Attorney's Fees
In his final sufficiency issue, Zukevich argues the evidence is insufficient to support the trial court's assessment of court-appointed attorney's fees against him because his presumed indigence was never rebutted. In response, the State concedes that the presumption of indigence remains unrebutted and agrees the assessment of attorney's fees should be deleted from the judgment.
A defendant who is determined to be indigent is entitled to free legal representation in criminal proceedings. TEX. CODE CRIM. PROC. ANN. art. 1.051 (West Supp. 2005). In other words, court costs such as attorney's fees may not be assessed against a defendant if he is determined by the trial court to be indigent. Id. art. 26.04; Yon v. Tyler, 440 S.W.3d 828, 834 (Tex. App.—Tyler 2013, no pet.). Once the trial court determines a defendant is indigent, the defendant is presumed to remain indigent for the duration of the proceedings "unless a material change in [the defendant's] financial circumstances occurs." TEX. CODE CRIM. PROC. ANN. art. 26.04; Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App. 2013).
Here, the trial court determined Zukevich was indigent on March 19, 2015, and the trial court appointed counsel to represent him. After Zukevich was appointed counsel, no further determination regarding Zukevich's financial status was made — a fact the State concedes. Accordingly, in absence of a finding that Zukevich's financial circumstances materially changed, we hold the trial court should not have assessed attorney's fees. See TEX. CODE CRIM. PROC. ANN. art. 26.04; Cates, 402 S.W.3d at 251-52. We therefore sustain Zukevich's sufficiency issue regarding attorney's fees.
Optional Completeness
In his final appellate issue, Zukevich contends the trial court erred in denying his request to play the entire 48-minute video recorded by Deputy Monroe's dashboard camera after the State played a portion of it for the jury. At trial, the jury saw approximately a four-minute excerpt of the dashboard camera video, showing Deputy Monroe arriving at the scene and subduing Zukevich. The video also depicted Ms. Dinsmore attempting to stomp out a fire on the base of the telephone pole and Mr. Dinsmore running to her. The trial court did not play the entire video after the State objected based on hearsay grounds.
Zukevich contends, however, that under the rule of optional completeness, the full video should have been played because it corroborated his defense that he did not intend to burn the building or harm anyone. Rather, he believed his family was in danger and was attempting to obtain help. Specifically, Zukevich points to statements he made to Deputy Monroe about his family being kidnapped that were recorded by the dashboard camera but were not played for the jury. Zukevich argues that because of the trial court's denial of his request to play the full video, the jury was left with a false impression of his intention.
A. Standard of Review
We review a trial court's decision to admit evidence under an abuse of discretion standard. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007); Estrada v. State, 352 S.W.3d 762, 768 (Tex. App.—San Antonio 2011, pet. ref'd). A trial court does not abuse its discretion if its decision lies within a zone of reasonable disagreement. Walters, 247 S.W.3d at 217; Estrada, 352 S.W.3d at 768.
B. Applicable Law
In general, hearsay statements are not admissible unless the statement falls within a recognized exception to the hearsay rule. Walters, 247 S.W.3d at 217-18. Rule 107 of the Texas Rules of Evidence, known as the rule of optional completeness, is one such exception. Id. In relevant part, Rule 107 provides:
When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given.TEX. R. EVID. 107. "This rule is one of admissibility and permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter 'opened up' by the adverse party." Walters, 247 S.W.3d at 217-18. The rule is designed to reduce the possibility of the jury receiving a false impression; however, it does not permit the introduction of other similar, but inadmissible, evidence unless it is necessary to explain properly admitted evidence. Id. at 218.
C. Application
According to Zukevich, the jury needed to view the entire video because it contained statements he made to Deputy Monroe regarding his belief that his family had been kidnapped and was on the property. He argues the video shows he was attempting to obtain help. However, the jury heard testimony from Zukevich himself, who testified he started the fires in an attempt to make smoke and obtain someone's attention because he believed his family was being held hostage in the building. Zukevich further testified he was under this delusion due to a hallucinogen he had ingested.
In addition to Zukevich's testimony, the jury heard the 911 recording, in which Ms. Dinsmore told the 911 operator, "He said we took his family and he's going to kill us." The recording also contained a statement from Ms. Dinsmore in which she stated, "He looks like he is on drugs." Accordingly, we conclude the video recorded statements made by Zukevich to Deputy Monroe regarding his belief that his family was kidnapped were not necessary to fully and fairly explain Zukevich's defense. Rather, the statements are merely cumulative of Zukevich's testimony and the 911 recording. See id. at 218; see also Mick v. State, 256 S.W.3d 828, 832 (Tex. App.—Texarkana 2008, no pet.) (holding exclusion of videotape evidence that was cumulative of other properly admitted evidence was not abuse of discretion). Thus, we hold the trial court did not abuse its discretion in denying Zukevich's request to play the full video. We therefore overrule his final complaint on appeal.
CONCLUSION
Based on the foregoing, we sustain Zukevich's sufficiency issue regarding attorney's fees, and overrule his other appellate issues. Accordingly, we modify the judgment to delete the assessment of attorney's fees and affirm the judgment as modified. See TEX. R. APP. P. 43.2(b) (permitting appellate court to modify trial court's judgment and affirm judgment as modified).
Marialyn Barnard, Justice DO NOT PUBLISH