Ovalle v. State, No. 03-08-00334-CR (Tex. App. 6/19/2009)

Page 1

Unpublished Opinion

ESTANISLADO OVALLE JR., Appellant, v. THE STATE OF TEXAS, Appellee.

No. 03-08-00334-CR.

Court of Appeals of Texas, Third District, Austin.

Filed: June 19, 2009.

Do Not Publish.

Appeal from the District Court of Comal County, 207th Judicial District, No. CR2007-125, Honorable Charles R. Ramsay, Judge Presiding.

Affirmed in part; Reversed and Dismissed in part.

Before Chief Justice JONES, Justices PURYEAR and HENSON.

MEMORANDUM OPINION

DIANE M. HENSON, Justice.

A jury found appellant Estanislado Ovalle, Jr. guilty of first degree arson, see Tex. Penal Code Ann. § 28.02 (West Supp. 2008), third degree arson, see id., and cruelty to animals, see Act of May 24, 2001, 77th Leg., R.S., ch. 450, § 1, 2001 Tex. Gen. Laws 887 (amended 2007) (current version at Tex. Penal Code Ann. § 42.092 (West Supp. 2008)). The jury assessed punishment at twenty years' imprisonment and a $10,000 fine for the first-degree-arson charge, ten years' imprisonment and a $5,000 fine for the third-degree-arson charge, and two years' imprisonment for the cruelty-to-animals charge. Ovalle raises four points of error on appeal, arguing that the double jeopardy clauses of the federal and state constitutions bar his convictions for third degree arson and cruelty to animals, that the evidence is legally and factually insufficient to support his conviction for cruelty to animals, and that the evidence is legally insufficient to support his conviction for first degree arson. Because we hold that the double jeopardy clause bars Ovalle's conviction for third degree arson, we set aside that conviction. Having found no other error, we affirm the judgments of conviction for first degree arson and cruelty to animals.

BACKGROUND

The Fire

Around 5:30 a.m. on May 25, 2006, Ovalle knocked on his neighbors' door, told them his house was on fire, and asked them to call 911. Ovalle's neighbor, Gary Ebert, testified that he quickly got dressed and went outside while his wife called 911. According to Ebert, "there was smoke everywhere" and, as he neared Ovalle's house, he could see the flames inside. Ebert testified that Ovalle was in the backyard, using a water hose to try to fight the fire, but the fire was already out of control. Ebert tried to get Ovalle to leave the backyard, but Ovalle resisted and kept calling for his wife, Lana Ovalle.¹ Ebert noticed that Lana's car was not in the driveway, guessed that she was not in the home, and convinced Ovalle to retreat to safety.

Firefighters from the New Braunfels Fire Department arrived on the scene shortly thereafter. Firefighter Jeremy Van Ausdall testified that the entire street was covered with so much smoke that "it was initially hard to pin down exactly which house" was on fire. Once they had parked in front of Ovalle's home, Van Ausdall and another firefighter, Omar Mercado, suited up and forced entry into the home through the locked front door. According to Van Ausdall, the fire was rolling over their heads through the attic and the majority of the ceiling had already fallen from the fire. The men began suppressing the fire that was in the kitchen and dining area, not far from the front door, working their way to the hall bathroom, where "the bulk of the heat was originating." Van Ausdall testified that there was women's clothing piled in the bathtub, where it appeared that the fire had originated. He also testified that, once they made their way into the bedroom, he saw jewelry and make-up strewn across the bedroom floor. Van Ausdall testified that there was no evidence of anyone having tried to put the fire out from inside the home before the firefighters arrived.

The second firefighting crew to enter the home, led by Jason Wallace, began a search and rescue mission for Lana—who they were told might or might not be in the building—and the family dog, Poopers, while the first crew continued the fire suppression efforts. Wallace testified that the smoke hampered their visibility and that they "couldn't really walk around because the heat was too high, so we were crawling on our hands and knees." The firefighters worked their way from the right side of the house to the left side, checking every room for Lana and Poopers. When they reached the master bedroom, Wallace found Poopers lying on his side between the bed and the wall, next to a dresser, his teeth clenched onto the leg of the dresser. Wallace got the dog loose from the dresser and removed him from the home. After he was removed, Poopers was pronounced dead from smoke inhalation.

The Investigations

The next people to arrive on the scene were the arson investigators, led by Comal County Fire Marshal Darren Brinkkoeter. Brinkkoeter testified that the firefighters were still actively fighting the fire when he arrived, so he donned protective gear for his initial inspection of the home. Brinkkoeter testified that he saw extensive heat damage throughout the home, with the hall bathroom having sustained the most extensive damage, plus smoke damage in the master and spare bedrooms. Brinkkoeter noted that there were articles of female clothing and cosmetics strewn across the master bedroom and master bathroom floors.²

After the fire was completely extinguished and the smoke had cleared, Brinkkoeter conducted a more thorough inspection of the home. He was assisted by Doug Vogel, an arson investigator from the New Braunfels Fire Department. Both men noted extensive fire and smoke damage throughout the home. The most significant damage was in the hall bathroom and the attic. Brinkkoeter and Vogel both testified that the fire originated in the hall bathroom. They came to this conclusion based on the level of damage to the bathroom and the V-pattern made by the fire as it burned up and out from the point of origin. Firefighter Van Ausdall also noticed the V-pattern coming from the bathroom and explained the phenomenon to the jury: "Typically a fire will start at one point, and then as the fire—the flames and smoke spread vertically, they will spread out. And as they spread out, they will—they will produce that V-pattern on the surface that they're closest to." Neither Brinkkoeter nor Vogel found any evidence that electrical wiring or appliances had malfunctioned and caused the fire. The arson investigators discovered clothes piled in the bathtub and on the bathroom floor and determined that the fire started when the clothes in the bathtub were ignited.

Brinkkoeter also received assistance from Thomas Hubertus, of the State Fire Marshal's office, who, along with his dog Buddy, searched the home for evidence of ignitable fluids. Hubertus testified that Buddy is trained to detect the odor of ignitable liquids; he sits and stares at the strongest source of the odor until he is rewarded with a toy. When Hubertus and Buddy first went into the Ovalle home, Buddy alerted on the hall bathroom, but because there was so much debris in the bathroom, Hubertus was unable to pinpoint the source of the odor. The bathroom debris was then removed and spread out along the driveway so that Buddy could search it again. This time, he alerted on the remains of a shelving unit. Then, when Hubertus took Buddy through the home again, Buddy alerted on the toilet in the hall bathroom. Hubertus retrieved pieces of a broken hurricane lamp and a cigarette lighter from inside the toilet bowl.³ Fragments of the shelving unit, the hurricane lamp pieces, and the cigarette lighter were all tested at the State Fire Marshal's Forensic Arson Laboratory by Sondra Budge. Budge testified that all three items tested positive for an ignitable fluid—specifically N-alkanes and medium petroleum distillates. While the test was not conclusive as to what the ignitable liquid was, Budge testified that the combination of the N-alkanes and medium petroleum distillates was consistent with lamp oil, such as would be found in a hurricane lamp. Budge also tested the clothing that Ovalle was wearing at the scene, and his clothes tested positive for the same compounds.

As part of his investigation, Brinkkoeter interviewed Ovalle and Lana on the day of the fire. Brinkkoeter testified that Ovalle did not appear distraught and that "he would barely answer the questions and just—he would answer to the question, and that was about it. Really no—no signs of anything." Ovalle said that he and Lana had been out drinking the night before, that he had passed out on a couch outside, and had woken up to the sound of the fire. Ovalle told Brinkkoeter that after calling 911, he attempted to go inside the home to look for his wife, whom he had not yet located. Brinkkoeter also noted that Ovalle was covered in soot and bleeding from a minor injury. Brinkkoeter learned from police officers from the New Braunfels Police Department, who were assisting at the scene, that Ovalle had repeatedly tried to enter the home while the firefighters were working and he had to be restrained by the officers. Police Officer Santiago Flores testified at trial that Ovalle showed signs of intoxication, including "bloodshot eyes, slurred speech, sway[ing] while he was walking, [and] the odor of an alcoholic beverage coming from his breath."⁴

Brinkkoeter next interviewed Lana, who arrived on the scene while the firefighters and arson investigators were still working.⁵ Brinkkoeter testified that, in contrast to Ovalle, Lana was distraught and crying. Officer Flores testified that Lana "appeared a little hysterical" and seemed confused about what was happening. Lana told Flores that she and Ovalle had been out drinking the night before, that they had gotten into an argument, and Ovalle had left her at a bar and Lana had called her cousin, Angela Mendoza, to come pick her up.⁶ According to Flores, Lana had her cousin take her to pick up her truck and then Lana drove to her cousin's to spend the night.⁷ Lana told both Flores and Brinkkoeter that she stayed with her cousin because she feared that if she went home,...