Donald Butler A/K/A Donald R. Buckner v. State

NUMBER 13-04-00661-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG DONALD BUTLER, A/K/A DONALD R. BUCKNER, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 347th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Rodriguez, and Garza Memorandum Opinion by Justice Hinojosa A jury found appellant, Donald Butler, a/k/a Donald R. Buckner, guilty of the offense of attempted arson and assessed his punishment at fifty years' imprisonment and a $10,000 fine. In a single point of error, appellant contends (1) the evidence is insufficient to support his conviction for attempted arson, (1) and (2) the evidence clearly establishes his affirmative defense of renunciation. (2) We affirm. A. Sufficiency of the Evidence 1. Standard of Review The standard of review for challenges to the legal and factual sufficiency of the evidence is well settled. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000) (legal sufficiency); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (legal and factual sufficiency). 2. Analysis A person commits the offense of arson "if the person starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with intent to destroy or damage any building, habitation, or vehicle, knowing that it is located on property belonging to another." Tex. Pen. Code Ann. § 28.02(a)(2)(D) (Vernon Supp. 2005). A person commits the offense of criminal attempt "if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003). The indictment alleged that "Donald Butler, a/k/a Donald R. Buckner, defendant, on or about June 10, 2004 in Nueces County, Texas, did then and there with specific intent to commit the offense of arson against Maureen Sarver do an act, to wit: By pouring gasoline on Maureen Sarver's house, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended, against the peace and dignity of the State." Appellant contends the evidence is insufficient to support the jury's finding that he committed attempted arson. Specifically, appellant asserts the State failed to present sufficient evidence to prove that he poured gasoline on the apartment building. Appellant admits that he poured gasoline around the building. Allen Tarble, a neighbor of appellant who had been sitting outside the building, testified that appellant warned him to leave because he was going to set the building on fire. Tarble further testified that appellant poured gasoline on the bottom stairs of the inside foyer of the apartment building, and then continued pouring gasoline outside on the ground around the building. Tarble also testified that at the time appellant was pouring the gasoline, he saw appellant holding a lighter. In addition, at least three witnesses, including two arresting officers, testified that appellant possessed both a milk jug containing gasoline and a lighter. We conclude that any rational trier of fact could have found the essential elements of the offense of attempted arson beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Young, 14 S.W.3d at 753; Malik, 953 S.W.2d at 240. Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction. Appellant's only evidence to the contrary is his own testimony denying the allegations. After viewing all the evidence in a neutral light, we conclude that (1) the evidence is not so weak as to be clearly wrong and manifestly unjust and (2) the verdict is not against the great weight of the evidence. See Johnson, 23 S.W.3d at 11; Malik, 953 S.W.2d at 240. Therefore, we hold the evidence is factually sufficient to support appellant's conviction. B. Renunciation Appellant asserts the evidence clearly establishes that he affirmatively renounced his attempt to commit arson. We review whether a defendant has proved an affirmative defense by considering whether the judgment, after considering all the evidence relevant to the issue at hand, is so against the great weight and preponderance of the evidence as to be manifestly unjust. Tex. Pen. Code Ann. § 2.04(d) (Vernon 2005); Patel v. State, 787 S.W.2d 410, 411 (Tex. Crim. App. 1990). Section 15.04 of the Texas Penal Code sets out the affirmative defense of renunciation, as follows: (b) It is an affirmative defense to prosecution under Section 15.02 or 15.03 that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor countermanded his solicitation or withdrew from the conspiracy before commission of the object offense and took further affirmative action that prevented the commission of the object offense. (c) Renunciation is not voluntary if it is motivated in whole or in part: (1) by circumstances not present or apparent at the inception of the actor's course of conduct that increase the probability of detection or apprehension or that make more difficult the accomplishment of the objective; or (2) by a decision to postpone the criminal conduct until another time or to transfer the criminal act to another but similar objective or victim. Tex. Pen. Code Ann. § 15.04 (Vernon 2005). The affirmative defense of renunciation requires an affirmative showing of voluntary repentance or change of heart. Thomas v. State, 708 S.W.2d 861, 864 (Tex. Crim. App. 1986). A renunciation is not "voluntary" if it results from the influence of other factors. Chennault v. State, 667 S.W.2d 299, 304 (Tex. App.-Dallas 1984, pet. ref'd). Appellant contends he renounced his attempt to commit arson by walking away from the apartment building. The record, however, shows that appellant did not walk away until a neighbor knocked the lighter away from his hand. We conclude this evidence is insufficient to show renunciation. It was reasonable for the jury to conclude by a preponderance of the evidence that appellant's decision to walk away was not voluntary, but rather was the result of the neighbor's action of knocking the lighter out of his hand and going to warn the other neighbors. Accordingly, we hold the jury's verdict is not so against the great weight and preponderance of the evidence so as to be manifestly unjust. Appellant's sole point of error is overruled. The judgment of the trial court is affirmed. FEDERICO G. HINOJOSA Justice Do not publish. See Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 3rd day of August, 2006. 1. See Tex. Pen. Code Ann. § 28.02(a)(2)(D) (Vernon Supp. 2005); see also Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003). 2. See Tex. Pen. Code Ann. § 15.04 (Vernon 2003).