IN THE

TENTH COURT OF APPEALS

No. 10-14-00042-CR

JESUS M. LOYA, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court No. D35132CR

MEMORANDUM OPINION

A jury convicted Appellant Jesus M. Loya, Jr., of second-degree-felony arson, see

TEX. PENAL CODE ANN. § 28.02(a)(2)(F), (d) (West 2011), and assessed his punishment, 

enhanced by a prior felony conviction, at twenty years’ imprisonment. This appeal 

ensued. In his sole issue, Loya contends that the trial court erred in denying his request 

for a lesser-included instruction.

Appellate review of alleged jury-charge error involves a two-step process. 

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, the court must 
Loya v. State Page 2

determine whether error actually exists in the charge. If error is found, the court must 

then evaluate whether sufficient harm resulted from the error to require reversal. Id. at 

731-32.

We use a two-step analysis to determine whether an appellant was entitled to a 

lesser-included-offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 

2007); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). First, the lesser 

offense must be a lesser-included offense of the charged offense as defined by article 

37.09 of the Code of Criminal Procedure. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. 

App. 1998); see TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006). Article 37.09 

provides:

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required 

to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious 

injury or risk of injury to the same person, property, or public interest 

suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less 

culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise 

included offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09. Second, there must be some evidence in the 

record that would permit a jury to rationally find that if the appellant is guilty, he is 

guilty only of the lesser offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 

741 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672-73. 
Loya v. State Page 3

We begin with the first step in the lesser-included-offense analysis. The first 

step, determining whether an offense is a lesser-included offense of the charged offense, 

is a question of law. Hall, 225 S.W.3d at 535. It does not depend on the evidence 

produced at trial. Id. To determine if the lesser offense is a lesser-included offense of 

the charged offense, we instead compare the elements of the charged offense, as 

modified by the particular allegations in the indictment, against the elements of the 

lesser offense. Wortham v. State, 412 S.W.3d 552, 555 (Tex. Crim. App. 2013); Hall, 225 

S.W.3d at 536.

The indictment alleged that Loya:

did then and there, with intent to damage or destroy a building located 

200 West 2nd Ave, start a fire, or cause an explosion, by causing an 

electrical short circuit, and the said defendant was reckless about whether 

the burning or explosion would endanger the life of some individual or 

the property of another by igniting the sheets ....

The elements of arson, as modified by the indictment, are therefore:

(1) A person

(2) starts a fire, regardless of whether the fire continues after ignition, or causes 

an explosion

(3) with intent to destroy or damage any building and

(4) is reckless about whether the burning or explosion will endanger the life of 

some individual or the safety of the property of another. 

See TEX. PENAL CODE ANN. § 28.02(a)(2)(F).

Loya requested, and the trial court denied, a lesser-included-offense instruction 

for the offense of arson under subsection 28.02(a-2) of the Penal Code, which is a state 
Loya v. State Page 4

jail felony. See id. § 28.02(a-2), (f). The elements for arson under subsection 28.02(a-2) 

are: 

(1) A person

(2) intentionally

(3) starts a fire or causes an explosion

and, in doing so,

(4) recklessly

(5) damages or destroys a building belonging to another or causes another 

person to suffer bodily injury or death.

See id.

A comparison of these elements demonstrates that the first step of the lesserincluded-offense analysis is not satisfied. Under the charged offense, the offense of 

arson is complete when the actor starts a fire with the intent to destroy or damage the 

building whether or not damage of any kind actually occurs. See Beltran v. State, 593 

S.W.2d 688, 690 (Tex. Crim. App. [Panel Op.] 1980); Mosher v. State, 901 S.W.2d 547, 549-

50 (Tex. App.—El Paso 1995, no pet.). Under subsection 28.02(a-2), however, the offense 

is not complete unless the person actually “damages or destroys a building belonging to 

another or causes another person to suffer bodily injury or death.” TEX. PENAL CODE 

ANN. § 28.02(a-2). The elements of the arson under subsection 28.02(a-2) therefore 

require at least one element that the elements of the arson, as modified by the 

indictment, do not. Thus, the offense of arson under subsection 28.02(a-2) is not a 

lesser-included offense of the charged offense of arson according to article 37.09 of the 
Loya v. State Page 5

Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 37.09. Because the 

first step of the lesser-included-offense analysis was not met, we need not discuss the 

second step. We overrule Loya’s sole issue and affirm the trial court’s judgment.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed February 19, 2015

Do not publish

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