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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Texas Court Upholds Arson Conviction


In Taylor v. State, Court of Appeals of Texas, Fifth District, November 13, 2001, the court reviewed the defendant's arson conviction. According to appellant, on March 30, 1999, he was completing errands with Kenyatta Sewell when Sewell told appellant he needed to meet Rodney Smith at Elam Park. Appellant drove Sewell to Elam Park and followed Smith and Sewell away from the park to an unknown location. Off of Interstate 20, near Mesquite, Smith's car slowed and pulled over. At this point, Sewell moved into the driver's seat, flagged appellant over, and stated they had run out of gasoline and for appellant to go to a station to buy some more. Appellant left and returned with the gasoline only to find the car had been moved. When appellant stopped, Sewell approached and told him to open the trunk so Sewell could retrieve the gasoline. Appellant complied and Sewell used the gasoline to burn Rodney Smith's body and car. Thereafter, appellant drove Sewell to his apartment to change clothes, to the river to dispose of the murder weapon, and to a car wash to clean the vehicle. Both men were subsequently arrested and interrogated. Appellant stated he did not know about the killing until the police informed him during his interrogation and he did not know the gasoline would be used to incinerate the car.

On March 31, 1999, Sewell confessed to the murder of Smith and signed a statement showing appellant had knowledge of Sewell's intent to burn the vehicle before the gasoline was acquired. Sewell agreed appellant drove him to meet Smith, but the remainder of his written statement differs greatly from appellant's version of the events of that day. Sewell stated when he and appellant arrived at the "drug deal" with Smith, Sewell exited the vehicle, walked to the window of Smith's Mazda, pulled out a ".357 caliber" handgun, and fired two shots into Smith's body, killing him. Sewell then "jumped into the driver's seat" and "pulled around" to have appellant follow him. Sewell later pulled to the side of the road, flagged appellant over, and told appellant to "go over to the Total station at the intersection and buy some gas so that I could burn the car."

Appellant also made a written statement. In his statement, appellant said Sewell had asked him to "buy a can and a gallon of gas" so Sewell could "burn the car up." Appellant later contradicted himself in the statement by saying he thought Sewell had run out of gasoline and did not know any other reason Sewell would ask him to buy gasoline.

Two of the witnesses, Michael Whitlock and L.B. Davis, saw the men at the scene of the crime. Whitlock stated he saw the Cadillac and the Mazda parked on the side of the road and thought "they're fixing to dump a stolen car out there." He wrote down the license- plate number of the Cadillac, turned around to see the Mazda engulfed in flames, and Sewell standing next to the passenger door of the Cadillac. Whitlock positively identified Sewell, but he was unable to identify appellant. Davis stated he saw appellant standing next to the rear of the Cadillac before the Mazda arrived. He was able to identify appellant from a picture line-up and in open court. The State also called Casey Clawson, the clerk from the Total gas station, who testified appellant came into her store to buy a gas can, but the store was out of cans so she directed him to a station down the street. She positively identified appellant as being the one who tried to purchase the gas can.

Appellant argued the evidence was legally and factually insufficient to prove he was a party to the arson in question or that he set fire to the car knowing it was within the city limits of Mesquite. Appellant asserts the jury could not infer he intended to commit arson because he was merely a bystander, and he argues his version of events overwhelmingly refutes the State's evidence. In the alternative, appellant argues he did not know he was in an incorporated city during the commission of the arson.

The jury charge stated the jury could find appellant guilty of arson if he either committed arson as a principal or assisted Sewell in committing arson. Because the jury was instructed on the law of parties, the question presented is whether the evidence is sufficient to establish that appellant, acting with intent to promote or assist the commission of arson, solicited, encouraged, directed, aided, or attempted to aid Sewell to commit arson. See Tex. Pen. Code Ann. 7.02 (Vernon 1994); Patterson, 950 S.W.2d at 202. Viewing the evidence under the appropriate standard, the court concluded the evidence is legally and factually sufficient to show appellant was guilty as a party. His conviction was affirmed.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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