Williams, Kelvin Wayne ( 2014 )

PD-1665-14
PD-1665-14 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/22/2014 11:48:34 AM
Accepted 12/29/2014 1:02:21 PM
ABEL ACOSTA
CLERK
In the
Court of Criminal Appeals of Texas
Cause No. OM4-00004-CR
In the
Court of Appeals for the First District of Texas
at Houston
Cause No. 1407407
In the 351st District Court
Of Harris County, Texas
KELVIN WAYNE WILLIAMS
Appellant
v.
THE STATE OF TEXAS
Appellee
PETITION FOR DISCRETIONARY REVIEW
Casey Garrett
Texas Bar No. 00787197
1214 Heights Blvd.
Houston, Texas 77008
713-228-3800
Casey.garrett@sbcglobal.net
December 29, 2014
IDENTITY OF PARTIES AND COUNSEL
Appellant: Kelvin Wayne Williams
Counsel for Appellant at Trial:
Ray Martin
Texas Bar No. 13099500
Leah Shapiro
Texas Bar No. 24056300
1201 Franklin, 13th Floor
Houston, Texas 77002
Counsel for Appellant on Appeal:
Casey Garrett
1214 Heights Boulevard
Houston, Texas 77008
Texas Bar No. 00787197
713-228-3800
Counsel for the State at Trial:
Lauren Byrne
Texas Bar No. 24055242
Amanda Greer
Texas Bar No. 24056773
Assistant District Attorneys
1201 Franklin Street, Suite 600
Houston, Texas 77002
713-755-6881
Counsel for the State on Appeal:
Harris County District Attorney's Office
Appellate Division
1201 Franklin, Suite 600
Houston, Texas 77002
(713)755-5800
Trial Judge: The Honorable Mark Kent Ellis
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
STATEMENT REGARDING ORAL ARGUMENT 5
STATEMENT OF THE CASE 5
STATEMENT OF PROCEDURAL HISTORY 6
QUESTION PRESENTED FOR REVIEW 6
PRAYER.. 10
CERTIFICATE OF COMPLIANCE 11
CERTIFICATE OF SERVICE 12
TABLE OF AUTHORITIES
Cases
Martinez v. State, 883 S.W.2d 771 (Tex. App.—
Fort Worth 1994, pet. ref d) 9
Medina v. State, 411 S.W.Sd 15 (Tex. App.—
Houston [14th Dist] 2013, no pet) 10
Mims v. State, 335 S.W.3d 247 (Tex. App.—
Houston [1st Dlst] 2010, pet filed) 9
Taylor v. State, 735 S.W.2d 930 (Tex. App.—Dallas 1987) 10
Thomas v. State, 1 S.W.3d 640 (Tex. App.—Dallas 1999, no pet). 9
Statutes
TEX. PENAL CODE ANN. Sec. 1.07(a)(17)(A), (B) (West 2006) 8
4
STATEMENT REGARDING ORAL ARGUMENT
Mr, Kelvin Williams requests oral argument.
STATEMENT OF THE CASE
Mr. Williams was charged by indictment with the felony offense of
arson (C.R. 12). In particular, Mr. Williams was charged with unlawfully
starting a fire by igniting an ignitable liquid with the intent to destroy and
damage a habitation located at 5802 Twisted Pine Court, owned by Charlie
Davis, and knowing the habitation was located on property belonging to
another, and the defendant was reckless about whether the burning would
endanger the life of a person and the safety and property of another, to wit:
by setting fire to an occupied habitation (C.R. 12). Mr. Williams was
charged with using and exhibiting a deadly weapon, namely fire, during the
commission of the arson (C.R. 12). Mr. Williams pled not guilty (R.R.4 — 7),
and the case was tried before a jury. The jury found him guilty as charged in
the indictment (C.R. 353). The jury also found "true" on the special issue,
adding a deadly weapon finding (C.R. 353). Punishment was assessed at
fifty-five years in the Institutional Division of the Texas Department of
Criminal Justice and a $10,000 fine (C.R. 353).
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals filed a memorandum opinion affirming the
conviction on November 20, 2014. No motion for rehearing was filed.
Pursuant to Rule 68.2 of the Texas Rules of Appellate Procedure, this
Petition for Discretionary Review should be filed thirty days after the day
the court of appeals filed its opinion,
QUESTION PRESENTED FOR REVIEW
Is it inappropriate under the Penal Code for the prosecution to rely
on one of the elements of arson, the use of fire, to support a deadly
weapon finding even in a case with no serious injuries or deaths,
such that every arson ever indicted will result in a deadly weapon
finding, since fire by its nature always presents a risk to human
life?
ARGUMENT
Is it inappropriate under the Penal Code for the prosecution to rely
on one of the elements of arson, the use of fire, to support a deadly
weapon finding even in a case with no serious injuries or deaths,
such that every arson ever indicted will result in a deadly weapon
finding, since fire by its nature always presents a risk to human
life?
In the instant case, the charge defined "deadly weapon" as anything
manifestly designed, made or adapted for the purpose of inflicting death or
serious bodily injury; or anything in the manner of its use or intended use is
capable of causing death or serious bodily injury. TEX. PENAL CODE ANN.
Sec. 1.07(a)(17)(A), (B) (West 2006). In Mints v. State, 335 S.W.3d 247
(Tex. App.—Houston [1st Dist] 2010, pet filed), the court below rejected the
defendant's argument that fire cannot be a deadly weapon in an arson case
because it is a redundancy since fire is an element of arson. As the appellant
pointed out in that case, "fire" is already a necessary element of arson. A
petition has been filed in that case and Mr. Williams contends it was
wrongly decided. Elevation of the offense of "arson" to a so-called 3(g)
offense by the addition of a deadly weapon finding would be essentially
automatic in every arson case. In fact, if the decision in Mints is permitted to
stand, the offense of arson should not even require a special issue regarding
the use of a deadly weapon, as every arson case involves the use of fire.
It is true, as the court below said in Mints, that several courts of
appeals have recognized that conduct which is an element of an offense can
also be the basis for a deadly weapon finding. See Mints, 335 S.W.Sd at 252,
citing Thomas v. State, 2 S.W.3d 640, 642-643 (Tex. App.—Dallas 1999,
no pet) and Martinez v. State, 883 S.W.2d 771, 774 (Tex. App.—Fort
Worth 1994, pet ref d). The cases cited in Minis, however, did not involve
fire. Fire, by its nature, cannot be "aimed" at someone or at the ground or
easily contained. It will always present, in some way, a danger to human life
if used in a manner that satisfies the arson statute. It is unlike common
household items or unusual substances that can be elevated to deadly
weapons because fire unleashed as arson will always be dangerous. The
court below concluded it was powerless to alter the decision in Mims, citing
Medina v. State, 411 S.W.Sd 15, 20 n. 5 (Tex. App.—Houston [14th Dist]
2013, no pet) for the proposition that its own prior decision was binding
precedent absent a decision from this Court. This Court should consider the
question of whether it is inappropriate to include a deadly weapon in an
arson case based on the use of "fire."
Even if the court below was correct in its reliance on Mims, the facts
in that case are distinguishable from the situation in this case. In Mims, an
elderly woman was severely injured in the fire the defendant set, resulting in
her death. Id. at 249. Likewise, in Taylor v. State, 735 S.W.2d 930, 949
(Tex. App.-—Dallas 1987), abrogated on other grounds by Gaines v. State,
761 S.W.2d 2 (Tex. Crim. App. 1988), the defendant poured gasoline in a
room occupied by her unconscious husband and ignited it Id. at 949. The
fire killed her husband. Id. In these cases, the defendant's actions severely
injured or killed another person and the courts allowed a finding of deadly
weapon to stand.
In the instant case, no one was injured in the fire. Kelvin Williams
was injured on the lawn by Aaron Greenwood, who fought with him and
ultimately set him on fire, but none of the occupants of the townhomes were
injured and no one was killed. Furthermore, the evidence established that
there was no fire, and might not have been a fire, if Aaron Greenwood had
not attacked Kelvin Williams (R.R.4 - 179, 213). When Greenwood shoved
Williams, Williams was holding a lighter and everything just went,
"wooooof (R.R.4 - 177). Even if the evidence was sufficient to show
Williams spread gasoline on the buildings, even if the jury believed
Greenwood's testimony that it was Williams spreading the gasoline and not
Greenwood himself, the evidence shows Williams did not intentionally light
anything on fire and did not use fire as a weapon, deadly or otherwise.
Williams cannot be convicted of using a deadly weapon, namely fire, when
fire is a natural and even unintended result of the gasoline spread on the
buildings and the fire was set as a result of an assault on Williams by
Greenwood.
Without Greenwood's intervention, Williams might have confronted
Davis, set an alarm, or decided against setting a fire. The fire only started
because he was attacked outside the townhouse complex. In an assault case,
if a bystander pressed a pistol into the defendant's hands, the defendant
would not suddenly be guilty of aggravated assault because of the "use" of a
deadly weapon. Greenwood started the fire, even if Williams committed the
arson. On top of that, no one was injured or killed. The "fire" in this case
was not a deadly weapon in its use or intended use, and the deadly weapon
finding should be struck from the judgment.
PRAYER
Appellant respectfully prays this Honorable Court to grant his petition
for discretionary review.
Respectfully submitted,
_/s/Casey Garrett
Casey Garrett
Texas Bar No. 00787197
1214 Heights Blvd.
Houston, Texas 77008
713-228-3800
Casey.garrert@sbcglobal.net
10
CERTIFICATE OF COMPLIANCE
This is to certify that the petition for discretionary review has 1, 557
words in compliance with Rule 9 of the Texas Rules of Appellate Procedure.
_/s/Casey Garrett_
Casey Garrett
Texas Bar No. 00787197
1214 Heights Blvd.
Houston, Texas 77008
713-228-3800
Casey.garrett@sbcglobal.net
11
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been sent
through the e-file system to the following party:
Harris County District Attorney's Office
Appellate Division
1201 Franklin, Suite 600
Houston, Texas 77002
/s/Casey Garrett_
Texas Bar No. 00787197
1214 Heights Blvd.
Houston, Texas 77008
713-228-3800
Casey.garrett@sbcglobal.net
12
JUDGMENT
Court of
tfiwt JBfettf et of
NO. 01-14-00004-CR
KELVIN WAYNE WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the 351st District Court of Harris County. (Tr. Ct. No. 1407407).
This case is an appeal from the final judgment signed by the trial court on November 20, 2013.
After submitting the case on the appellate record and the arguments properly raised by the parties, the
Court holds that the trial court's judgment contains no reversible error. Accordingly, the Court affirms
the trial court's judgment.
The Court orders that this decision be certified below for observance.
Judgment rendered November 20, 2014.
Panel consists of Chief Justice Radack and Justices Jennings and Keyes. Opinion delivered by Chief
Justice Radack.
Opinion issued November 20, 2014
In The
Court of
For The
jf trst JBfetritt of
NO. 01-14-00004-CR
KELVIN WAYNE WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case No. 1407407
MEMORANDUM OPINION
Appellant was convicted of felony arson and sentenced to 55 years'
confinement and assessed a $10,000 fine. In two issues, he argues that the jury's
finding that he used or exhibited a deadly weapon was improper, and that the
evidence is insufficient to support his conviction. We affirm.
EVIDENCE AT TRIAL
In 2010, appellant lived with his girlfriend, Charlie Davis, and her three
children at Davis's townhouse on Twister Pine Court in Houston. Davis's
townhouse was near the middle of a row of six attached townhomes. Each
townhouse had a front door facing the street and a garage at the back of the unit
facing an alley. In October of 2010, all six townhouses in Davis's building were
occupied.
Davis testified that, on October 15, 2010, her car broke down as she was
trying to leave that morning. A neighbor, Aaron Greenwood, was passing by and
offered to go find someone to look at the car. Greenwood returned with his friend,
Willow. At some point during the day, appellant came home and was angry to
discover Greenwood and Willow in the garage working on Davis's car. According
to Davis, appellant's anger appeared to be jealousy driven, as appellant is a
mechanic and was irritated that Davis asked someone else for help.
Appellant pulled a knife on Greenwood and Willow, threatened to "kill all of
you—all," and ordered them to leave. Appellant chased Greenwood down the
street. When Greenwood got to his car, he pulled out a tire iron to defend himself.
Eventually, Greenwood got in his car and drove off. Appellant then also left.
Someone called the police about the incident, and officers came out to the area.
They were not able to locate appellant, but talked to Greenwood and Davis.
Although Davis did not know Greenwood well and Greenwood had never
previously been to her home, Greenwood came back to Davis's townhouse and
ended up spending a large part of the day with Davis. Greenwood and Davis drank
beer, played video games, and chatted with Davis's children. Greenwood left
sometime after dark and Davis settled in with her kids on the couch to watch a
movie. Appellant later called and asked Davis to come pick him up. She testified
that it was an odd request, as he had his own vehicle with him. She told him to
drive himself home, which appeared to anger him.
Davis and her children fell asleep on the couch late that night watching their
movie. Davis woke up sweaty about 2:00 a.m. and immediately got up to go check
the temperature on the thermostat. When she turned around to return to the sofa,
she saw that the townhouse's front window, which was behind the sofa, was
orange. She then looked over at the front door and saw flames coming in from
under the crack of the door.
She frantically woke up her kids and raced them towards the garage at the
back of the townhouse. When she discovered that the garage door was hot, she
realized that the garage was on fire as well. She escaped through a sliding glass
door to a patio, and then she and her kids scaled a fence to the neighbors' patio.
They pounded on the neighbors' patio door to rouse them, and then they all
escaped through the neighbors' front door.
In the front yard, they saw Greenwood and appellant rolling around on the
ground fighting. Appellant's clothes were on fire. Davis saw appellant's Ford
Explorer—with its engine still running and the driver door open—parked right in
front of her townhouse. Davis and her neighbors ran up and down the building
getting residents out while they waited for the fire department to arrive.
Another resident of the townhouse building testified to running outside after
hearing Greenwood and appellant fighting. Greenwood called out to her to call the
police at the same time she realized that the building was on fire. She called the
police and assisted in waking up neighbors.
Greenwood testified that, before the fire, he had been standing talking with a
friend under a tree across from his own house when appellant drove by in his Ford
Explorer and turned down the alley behind the townhouse building. Greenwood
starting walking in that direction to confront appellant because he was still angry
about appellant threatening him earlier in the day. By the time Greenwood made it
to the back alley, he saw appellant climb into his truck and drive around towards
the front of the townhouse. Greenwood then set off to follow appellant around
front. When Greenwood got to the front of the townhouse, appellant was there
with a gas can throwing gasoline on the walls and all around Davis's townhouse.
Greenwood ran toward appellant, pushed him against the wall, and suddenly there
was a "whoosh" from flames started by the lighter in appellant's hand. Appellant's
clothes caught fire and then appellant tried to catch Greenwood on fire, telling him,
"I'm going to burn your black ass up, too." Greenwood grabbed appellant and
flipped him to the ground. That extinguished the fire on appellant, and the two
started rolling around on the ground fighting. Greenwood was also yelling, trying
to rouse people in the homes to alert them that their homes were on fire. Appellant
eventually passed out and was loaded into an ambulance.
Ultimately, it took seventy-five firefighters more than ten hours to put out
the fire. The entire townhouse building was destroyed, and Davis, her family, and
their neighbors lost everything in the fire. Davis and her kids spent a few hours at
Greenwood's house, moved to a hotel for a few nights, and then to a Red Cross
shelter. Davis and her family eventually moved to Mississippi.
Various expert witnesses, including arson investigators, testified at trial that
(1) the fire was set by an ignitable liquid; (2) the fire had two unconnected points
of origin (i.e., the garage and in the front of the townhouse); (3) a melted gasoline
can was found in front of the townhouse; and (4) appellant's clothes had gasoline
on them. Consistent with Greenwood's testimony, surveillance tapes were also
introduced at trial showing (1) a Ford Explorer driving into the back alley, (2) a
flash of the fire starting behind the building in the garage area, and (3) the vehicle
driving back around to the front of the townhouses while light flickering from the
garage fire reflects against the trees. The Explorer stops in front of the townhouse
and then the driver gets out and walks towards the front door of the townhouse,
which is outside the view of the camera. A second huge flash is seen, followed by
blurry footage of two people tussling on the ground.
Finally, an "Enrollment for Life Insurance" form was introduced at trial.
The form was found in appellant's pocket in an addressed envelope when he was
taken to the hospital. The application identified Davis as the "Proposed Insured,"
identified appellant as the "Beneficiary," and identified the beneficiary's
"Relationship to Proposed Insured" as "husband." The form contained a signature
for Davis, and was dated October 13, 2010, three days before the fire. Davis
testified at trial, however, that she had not seen the application before, and that—
although it purportedly bore her signature—the handwriting on the application was
not hers, it was actually appellant's. Davis's daughter likewise testified that none
of the handwriting on the life insurance application was her mother's.
The jury convicted appellant of arson and found that he "used or exhibited a
deadly weapon," i.e. fire. Appellant plead true to a prior conviction of aggravated
rape, and the jury assessed punishment at 55 years' confinement and a $10,000.00
fine. The court entered judgment in accordance with the jury's verdict, and
appellant timely appealed.
ISSUES ON APPEAL
On appeal, appellant brings forth the following issues:
1. "The deadly weapon finding was inappropriate because the use
of fire was not intended as a weapon."
1. "The evidence presented at trial was insufficient to support a
conviction for arson."
FIRE AS A "DEADLY WEAPON"
In his first point of error, appellant argues that (1) this Court's decision in
Mims v. State, 335 S.W.3d 247 (Tex. App.—Houston [1st Dist] 2010, pet. ref d),
holding that fire can be a deadly weapon in an arson case, was wrongly decided,
and (2) in any event, this case is distinguishable from Mims.
A "deadly weapon" is defined as "(A) a firearm or anything manifestly
designed, made, or adapted for the purpose of inflicting death or serious bodily
injury; or (B) anything that in the manner of its use or intended use is capable of
causing death or serious bodily injury." TEX. PENAL CODE ANN. § 1.07(17)
(Vernon Supp. 2014). In Mims, the defendant intentionally set an apartment
building on fire, and one of its residents died in the fire. 335 S.W.3d at 248. On
appeal, the defendant challenged the trial court's finding, included in the judgment,
that the defendant "used or exhibited a deadly weapon, namely, fire, during the
commission of a felony offense." Id. Specifically, the Mims defendant argued that
fire should not qualify as a deadly weapon in an arson case because "the act of
starting a fire that results in bodily injury is an essential element of the offense of
first-degree arson." Id. at 251. Accordingly, the defendant argued, "such conduct
cannot both be an element of the charged offense and be used to support a deadly
weapon finding." Id. We rejected that argument, noting that "[s]everal Texas
courts of appeals have recognized that conduct which is an element of an offense
can also be the basis of a deadly weapon finding." Id.; see also McNeil v. State^
398 S.W.3d 747, 755 (Tex. App.—Houston [1st Dist] 2011, pet. ref d) (rejecting
argument that deadly weapon paragraph in indictment was redundant of the
underlying crime of arson).
Here, appellant insists that Mims was wrongly decided because a deadly
weapon finding "would be essentially automatic in every arson case," as "every
arson case involves the use of fire." Appellant cites no authority in support of his
argument that Mims was incorrectly decided, and Mims's rejection of appellant's
arguments and holding that the use of fire can support a deadly weapon finding in
an arson case is binding precedent, see Medina v. State, 411 S.W.Sd 15, 20 n.5
(Tex. App.—Houston [14th Dist.] 2013, no pet.) ("absent a decision from the
Court of Criminal Appeals or this court sitting en bane that is on point and contrary
to the prior panel decision or an intervening and material change in the statutory
law, we are bound by our prior panel decision"), that has since been applied and
followed by another panel of this Court. McNeil, 398 S.W.3d at 755.
Alternatively, appellant insists that the facts here are distinguishable from
Mims, and that—as a matter of law—fire cannot be considered a deadly weapon in
this case. Appellant points out that, in Mims, a woman died in the fire set by the
defendant. 335 S.W.Sd at 249. Similarly, in Taylor v. State, 735 S.W.2d 930, 949
(Tex. App.—Dallas 1987) abrogated on other grounds by Gaines v. State, 761
S.W.2d 2 (Tex. Crim. App. 1988)—the case we relied upon in Mints—the
defendant's husband died in the fire set by the defendant. According to appellant,
this case is thus distinguishable because "no one was injured in the fire."1
As noted above, a deadly weapon can be "anything that in the manner of its
use or intended use is capable of causing death or serious bodily injury." TEX.
PENAL CODE ANN. § 1.07(17)(b) (emphasis added). Although "there must be
evidence that others were actually endangered" rather than "a hypothetical
potential for danger if others had been present" to sustain a deadly weapon
finding,2 Gates v. State, 102 S.W.Sd 735, 738 (Tex. Crim. App. 2003), there is no
requirement that anyone actually be injured. Torching a fully occupied building in
the middle of the night is using fire in a way that "is capable of causing death or
serious bodily injury." Moreover, appellant set both the front and back of Davis's
townhome on fire knowing that she and her children were home, in what could
1 He also contends that there would not have been a fire at all if Greenwood had not
attacked him, which ignores the evidence that appellant had already set Davis's
garage on fire before Greenwood tackled appellant in the front yard.
r\s evidentiary burden does not apply if the legislature has defined a particular
object as a deadly weapon. See Coleman v. State, 145 S.W.Sd 649, 651 n.4 (Tex.
Crim. App. 2004) (rejecting argument that, given the specific situation, any risk of
danger from firearms was purely hypothetical because "Section 107(a)(17) of the
Texas Penal Code specifically defines firearms as deadly weapons").
only have been a plan to trap them inside with no means of escape. The gratuitous
fact that no resident, firefighter, or bystander was ultimately injured or killed by
the massive resulting fire does not render the evidence insufficient to demonstrate
that fire was used as a deadly weapon in this case.
We overrule appellant's first point of error.
LEGAL SUFFICIENCY
In his second point of error, appellant argues that the "evidence presented at
trial was insufficient to support a conviction for arson." He does not dispute that
the fire was a result of arson, but contends that the State put forth insufficient
evidence to establish that he is the person who set the building on fire.
To sustain an arson conviction, the State must show that the accused set the
fire or was "criminally connected therewith." Merritt v. State, 368 S.W.Sd 516,
525 (Tex. Grim. App. 2012). Although the State must prove the defendant was the
one who set the fire beyond a reasonable doubt, it is not required to exclude every
conceivable alternative to a defendant's guilt. See id. (citing Turro v. State, 867
S.W.2d 43, 47 (Tex. Crim. App. 1993) (explaining that "the evidence is not
rendered insufficient simply because appellant presented a different version of the
events")).
"When reviewing the sufficiency of the evidence, we consider all of the
evidence in the light most favorable to the verdict to determine whether, based on
10
that evidence and the reasonable inferences therefrom, a jury was rationally
justified in finding guilt beyond a reasonable doubt." Id. (citing Jackson v.
Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781 (1979)). "The jury is the sole judge
of credibility and weight to be attached to the testimony of witnesses." Id. Juries
are permitted to draw multiple reasonable inferences from facts as long as each is
supported by the evidence presented at trial. Id. We determine whether the
necessary inferences are reasonable based upon the combined and cumulative force
of all the evidence when viewed in the light most favorable to the verdict. Id. at
526 (citing Hooper v. State, 214 S.W.Sd 9, 16-17 (Tex. Crirn. App. 2007)). We
presume the jury resolved conflicting inferences in favor of the verdict and defer to
that determination. Id.
"Identity of a perpetrator can be proved by direct or circumstantial
evidence." Greene v. State, 124 S.W.Sd 789, 792 (Tex. App.—Houston [1st Dist]
2003, pet. ref d). Here there is both. Appellant does not dispute that the evidence
demonstrates that two separate fires were started, one in the garage of the
townhouse and one at the front of the townhouse. Greenwood provided direct and
unequivocal testimony that he came upon appellant's spreading gasoline on the
front of the building while holding a lighter and threatening to set Greenwood on
fire too. This "eyewitness's testimony, alone, can be legally sufficient to support a
guilty verdict." Castillo, v. State, 374 S.W.Sd 537, 539 (Tex. App.—San Antonio
11
2012, pet. ref d); see also TEX. CODE GRIM. PROG. ANN. art. 38.04 (Vernon 1979)
("The jury, in all cases, is the exclusive judge . . . of the weight to be given to the
testimony"); Reedv. State, 991 S.W.2d 354, 360 (Tex. App.—Corpus Christi 1999,
pet. ref d) ("[TJhis court may not second-guess the jury, who had the opportunity
to observe the witness' demeanor, expressions, gestures, and tone during his
testimony.").
In addition, there is circumstantial evidence that appellant started the fire.
Video surveillance tapes showed the fire in the garage starting in the brief period
between appellant's driving into the alley that the garage faced and appellant's
driving back out of the alley towards the front of the townhouse. McLendon v.
State, 167 S.W.3d 503, 509 (Tex. App.—Houston [14th Dist] 2005, pet. ref d)
(evidence that defendant's car was parked, with lights on, in front of house at 3:00
a.m., and that witness positively identified defendant as person he saw running
away just before witness noticed that house was on fire was sufficient
circumstantial evidence of identity to support defendant's conviction for arson).
Both Davis's trial testimony that appellant was angry and jealous and the evidence
that appellant forged the insurance application to obtain insurance on Davis's life
are evidence of appellant's motive. Merritt, 368 S.W.3d at 526 ("Although motive
and opportunity are not elements of arson and are not sufficient to prove identity,
they are circumstances indicative of guilt.").
12
We overrule appellant's second point of error.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. TEX. R. APP. P. 47.2(b).
13