Hamilton v. State , 1984 Tex. Crim. App. LEXIS 747 ( 1984 )

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

The court of appeals reversed this conviction for unlawful possession of a firearm by a felon,¹ holding that arson is not a crime of violence per se, and that the State had therefore failed to prove that appellant had previously been convicted of a crime of violence.

One who starts a fire or causes an explosion with intent to destroy or damage a building, habitation or vehicle² necessarily exerts a physical force — the fire. (Although the oxidation reaction is, strictly speaking, chemical in nature, the fire surely possesses the “capacity to ... cause physical change,” see American Heritage Dictionary of the English Language, “force”, definition No. 1, p. 513 (1982). That force is exerted “so as to ... damage” by definition of the required accompanying intent, and this is true regardless of whether or not the object of the offense is attained by actual destruction of, or damage to, the target of the arson.

The position of the court of appeals in this cause is analogous to holding that, because a gunshot fired with the intent to maim a complainant misses its target, the shooter of the gun, although guilty of aggravated assault (and not merely of an inchoate offense), has not committed a crime of violence.

Violence inheres, not in the result, but in the intent and the act. Because violence is inherent in the setting of a fire with intent to destroy or damage, and because the crime of arson requires that action and more, we hold that arson is a crime of violence per se.

The judgment of the court of appeals is reversed. Appellant having raised in that court no other grounds of error, the judgment of conviction is affirmed.

1 . V.T.C.A., Penal Code, Sec. 46.05(a) provides:

(a) A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives.

2 . See V.T.C.A., Penal Code, Sec. 28.02(a). The action described is a necessary (although not sufficient) condition to the commission of arson; i.e., it is an element of that crime.