                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                          No. 07-13-00073-CR


                              ROBERT LARRY LODGE, APPELLANT

                                                   V.

                                THE STATE OF TEXAS, APPELLEE

                                On Appeal from the 47th District Court
                                        Randall County, Texas
                    Trial Court No. 22,315-A, Honorable Dan L. Schaap, Presiding

                                           August 27, 2014

                                  MEMORANDUM OPINION
                        Before CAMPBELL and HANCOCK and PIRTLE, JJ.


        Appellant Robert Larry Lodge appeals from his conviction for the offense of

arson1 and the resulting sentence of fifteen years of imprisonment. Through one issue,

Lodge contends the trial court erred by providing an improper charge to the jury. We

will affirm.




        1
            TEX. PENAL CODE ANN. § 28.02(a)(2)(A) (West 2012).
                                           Background


         Because Lodge does not challenge the sufficiency of the evidence to support his

conviction, we will relate only those facts necessary to an understanding of his appellate

issue.


         Lodge was accused of setting fire to the Amarillo residence of Heather, his

former girlfriend. The two dated for three years, and Lodge lived in the home with

Heather for six months prior to the fire. The home had a security system with monitors

for motion and smoke; Lodge knew the security code. He moved out of the home in

February 2011 after Heather ended their relationship. Lodge admitted he was “beside

himself” over the breakup and sought to learn about Heather’s new boyfriend by driving

by the home and sometimes parking near it. The fire occurred about two weeks after he

moved out.


         A fire investigator testified Lodge told him he went to the residence between 6:00

and 6:30 the morning of the fire to see if the new boyfriend’s vehicle was there, found it

was not there but stayed in the area of the residence for some thirty minutes. Lodge

was driving a pickup truck bearing the name of his lawn care company. Other witnesses

testified to seeing the truck near Heather’s home at earlier times that morning. Heather

testified she left her home at 7:13 to take her daughter to school early. She then drove

to a coffee shop. While waiting in the drive-up line for her coffee, she received two calls

from her security company, one at 7:22 and the second at 7:28. She headed directly

home and received a phone call and a text message from appellant on her way.




                                              2
        Evidence showed a motion detector was triggered at 7:16 that morning and a fire

alarm was triggered at 7:19. Neighbors testified they saw fire trucks between 7:20 and

7:30.


        Fire investigator testimony showed the fire was intentionally set. It burned at four

separate locations inside the home, and fuel cans and used oil cans were found.

Forensic tests also showed the presence of gasoline on samples of items collected from

the home. Many parts of the home smelled of gasoline and Heather’s daughter testified

she did not smell gasoline before leaving home that morning.          Lodge could not be

excluded as the contributor of DNA found on items the testimony associated with the

fire, including a gas can handle and latex gloves.


        Lodge again arrived at the home shortly after the fire was contained, expressing

concern about Heather’s safety. He told inconsistent stories to law enforcement and

others after the fire.


        Lodge did not testify during the guilt-innocence stage of trial, but his defense

denied he was the person who set the fire. He refuted the State’s evidence, specifically

contesting the DNA evidence the State argued showed he set the fire.               He also

presented an alibi witness who testified he saw Lodge’s personal vehicle, a yellow

Hummer, at a convenience store around 7:25 or 7:30 that morning, and saw the vehicle

at another location five to ten minutes later.




                                                 3
                                               Analysis


       The indictment charged Lodge with “intentionally and knowingly start[ing] a fire

by igniting a flammable substance, with intent to damage and destroy a habitation

generally located at [an address in] Amarillo, Randall County, Texas, knowing that said

habitation was within the limits of an incorporated city, namely, Amarillo, Texas.”


       The abstract portion of the court’s charge contained the full Penal Code

definitions2 of the intentional and knowing culpable mental states:


              A person acts intentionally, or with intent, with respect to the nature
       of his conduct or to a result of his conduct when it is his conscious
       objective or desire to engage in the conduct or cause the result.

              A person acts knowingly, or with knowledge, with respect to the
       nature of his conduct or to circumstances surrounding his conduct when
       he is aware of the nature of his conduct or that the circumstances exist. A
       person acts knowingly, or with knowledge, with respect to a result of his
       conduct when he is aware that his conduct is reasonably certain to cause
       the result.

       The application paragraph read:

              Now bearing in mind the foregoing instructions, if you unanimously
       believe from the evidence beyond a reasonable doubt, that the defendant,
       ROBERT LARRY LODGE, on or about the 28th day of February, 2011, in
       the County of Randall, and State of Texas, as alleged in the indictment,
       did then and there intentionally or knowingly start a fire by igniting a
       flammable substance, with intent to damage or destroy a habitation
       generally located at [an address] in Amarillo, Randall County, Texas,
       knowing that said habitation was within the limits of an incorporated city,
       namely, Amarillo, Texas, you will find the defendant guilty of the offense of
       Arson and so say by your verdict, but if you do not so believe, or if you
       have a reasonable doubt thereof, you will acquit the defendant and say by
       your verdict "Not Guilty."



       2
           TEX. PENAL CODE ANN. § 6.03(a), (b) (West 2012).



                                                    4
      Through his single appellate issue, Lodge contends the inclusion of definitions

referring to the result of conduct was error because, he posits, the offense of arson is a

pure nature-of-conduct offense. Lodge argues that the references to result of conduct

in the definition section of the charge caused the jury to become so focused on the

result of the conduct that it was led to convict him on weak circumstantial evidence he

was actually the person who set the fire.


      The State responds with the assertion that arson contains components of both

nature-of-conduct and result-of-conduct offenses. Both parties rely on Beltran v. State.

593 S.W.2d 688 (Tex. Crim. App. 1980); see Hughes v. State, 897 S.W.2d 285, 295

n.14 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1112, 115 S.Ct. 1967, 131 L.Ed.2d

857 (1995); Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994) (discussing

conduct elements).     We find it unnecessary to resolve the parties’ disagreement

because, even if we assume the charge contained the error Lodge asserts, we agree

with the State’s further contention that the error was harmless.


      The degree of harm required for reversal depends on whether jury-charge error

was preserved in the trial court. When the defendant fails to object at trial, as here,

reversal is required only if the error was so egregious and created such harm that the

defendant "has not had a fair and impartial trial." Barrios v. State, 283 S.W.3d 348, 350

(Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh'g)). Egregious harm is a difficult standard to meet and must be

determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.

App. 2002).



                                            5
       An egregious harm determination must be based on a finding of actual rather

than theoretical harm. Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011); Ngo

v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). For actual harm to be

established, the charge error must have affected "the very basis of the case,"

"deprive[d] the defendant of a valuable right," or "vitally affect[ed] a defensive theory."

Cosio, 353 S.W.3d at 777, citing Almanza, 686 S.W.2d at 171. When assessing harm

based on the particular facts of the case, we consider: (1) the charge; (2) "the state of

the evidence[,] including contested issues and the weight of the probative evidence"; (3)

the parties' arguments; and (4) all other relevant information in the record. Cosio, 353

S.W.3d at 777. When the error involves a misstatement of the required culpable mental

state, we may also "consider the degree, if any, to which the culpable mental states

were limited by the application portions of the jury charge." Hughes, 897 S.W.2d at 296.


       Having reviewed the entire record, we find the most significant factor in the

assessment of harm from the error Lodge sees to be the simple fact that the state of

mind of the person who set the fire was not an issue at trial. The State’s evidentiary

contention that the fire was intentionally set went entirely undisputed, at trial and now on

appeal. Nor does the trial contain any hint of dispute over whether the person who set

the fire intended thereby to damage or destroy the residence, or whether that person

knew the residence was located within Amarillo’s city limits. Neither the State’s case

nor Lodge’s defense focused at all on the mental state of the person setting the fire.


       At trial, as noted, investigators testified to aspects of the fire, including the

presence of “pour patterns,” that lead them to conclude the “fire was intentionally set.”

Cross-examination of the investigators focused on the asserted lack of evidence

                                             6
identifying Lodge as the person who set the fire. Indeed, Lodge’s entire defense, both

at trial and on appeal, was that he was not the person who set the fire. His effort at trial

was to dispute and minimize the probative value of evidence his DNA was found on

some items, and to identify discrepancies in the State’s time line, arguing he could not

have set the fire. And as noted, he presented an alibi witness. Review of the contested

issues at trial effectively negates a conclusion that references in the charge to the

intended result of the conduct of the person who set the fire affected "the very basis of

the case," or "vitally affect[ed] a defensive theory." Cosio, 353 S.W.3d at 777. Given

the state of the evidence and the contested issues, we are unable to see how any

asserted focus by the jury on the result of the conduct of the fire-setter increased the

likelihood of Lodge’s conviction or harmed his defense.


       Acceptance of Lodge’s contention also would require that we find the jury ignored

the charge’s application paragraph. See Thrift v. State, 176 S.W.3d 221, 224 (Tex.

Crim. App. 2005) (jury presumed to follow court’s instructions as given). The application

paragraph required for guilt that the jury find Lodge “did then and there intentionally or

knowingly start a fire by igniting a flammable substance . . . .” Thus, again assuming the

presence of the result of conduct in the definitions of “intentionally” and “knowingly” was

error, the application paragraph pointed the jury to what Lodge says was the

appropriate part of the definitions, that referring to the nature of his conduct. This factor

as well strongly weighs against a finding of egregious harm.      See Collins v. State, No.

09-04-407-CR, 2005 Tex. App. LEXIS 9639, at *18-19 (Tex. App.—Beaumont Nov. 16,




                                             7
2005, no pet.), citing Hughes, 897 S.W.2d at 296 (finding application paragraph limited

jury’s consideration of overly-broad definitions).3


       To those factors we add our finding that nothing in the arguments of counsel

emphasized the result-of-conduct language in the definitions, or espoused a theory of

the evidence in which the actor’s state of mind would have been important. Lodge even

points out that during voir dire, the State noted the nature-of-conduct aspect of arson

when the prosecutor stated, “It’s purely a property related crime. To start a fire, to cause

an explosion with intent to destroy or damage a habitation, knowing that it is within the

city limits of a town or city. That’s it. Pretty simple.”      The parties’ arguments were

consistent with the disputed issue at trial, that is, the identity of Lodge as the person

who committed the arson. This factor also weighs in favor of finding no egregious harm.


       Accordingly, we find no egregious harm resulted from the court's failure to limit

the definitions in the charge to the jury. We resolve Lodge’s sole issue against him and

affirm the judgment of the trial court.




                                                   James T. Campbell
                                                      Justice



Do not publish.




       3
          See also Carr v. State, No. 14-09-00322-CR, 2010 Tex. App. LEXIS 5619, at *22-23 (Tex.
App.—Houston [14th Dist.] July 20, 2010, pet. ref’d) (mem. op., not designated for publication)
(discussing purposes of abstract and application portions of jury charge).

                                               8
