David Fowler v. State ( 2019 )

Opinion issued November 26, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00883-CR
———————————
DAVID FOWLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1523977
MEMORANDUM OPINION
A jury convicted appellant, David Fowler, of the second-degree felony
offense of arson.1 After appellant pleaded true to the allegations in two enhancement
1
See TEX. PENAL CODE ANN. § 28.02(a)(2)(E).
paragraphs, the jury assessed his punishment at twenty-six years’ confinement. In
one issue, appellant contends that the State failed to present sufficient evidence that
he burned a vehicle owned by the complainant.
We affirm.
Background
Appellant and Demetrius Lee, the complainant, have known each other for
more than forty years. In 2016, they entered into an agreement for appellant to
purchase a white Chevrolet truck from Lee. At the time, a mechanic was completing
repairs on the truck, and the truck was not in Lee’s possession. According to Lee,
the total purchase price of the truck was $2,500, and appellant paid Lee $700 as a
down payment.2 Appellant offered to pay the remaining balance on the truck in $30
or $40 increments, which Lee did not consider to be a suitable arrangement. Lee
proposed that they “keep [their] friendship agreement” while terminating their
business agreement and that he return appellant’s $700 down payment. Lee testified
that he and appellant made plans to meet on September 16, 2016, for Lee to return
appellant’s down payment.
2
Appellant introduced into evidence a handwritten receipt indicating that, on June 7,
2016, he paid $700 to Lee “for the purchase of a 1998 Chevy [four-door] white”
truck. This receipt was signed by both appellant and Lee. Appellant argued that
because the receipt did not mention a purchase price of $2,500, the total purchase
price of the vehicle was $700. Eddie Clark, Jr., who was a friend of both appellant
and Lee, testified on appellant’s behalf that he was present when appellant and Lee
entered into the agreement concerning the truck and that the purchase price was
$700 or $750. He did not recall any discussion of a $2,500 purchase price.
2
Lee and his girlfriend, Bridget Nelson, lived in a house in northeast Houston.
On September 15, 2016, the day before appellant and Lee were scheduled to meet,
appellant stopped by Lee’s house when Lee was not present. Appellant was “kind of
acting erratically,” and Nelson called Lee and passed her phone through the front
door so Lee and appellant could speak. Nelson heard appellant ask Lee, “When can
you pay me my money?” Lee told appellant, “I am giving you your money
tomorrow.” Appellant responded, “Well, okay, that’s fine.” Appellant then left Lee’s
house.
Around 8:30 that evening, Lee and Nelson were at home when appellant
returned to the house. Appellant started cursing and banging on the front door to the
house, and Lee declined to speak further with appellant and stayed inside the house.
At this time, a black truck was parked in Lee’s driveway. Lee used this vehicle in
his carpet-installing business. He testified that he owned this truck and that this was
not the truck that was the subject of the agreement between him and appellant—that
truck, which was white, was being repaired and was not located at Lee’s house. Both
Lee and Nelson testified that they had left a squeeze bottle containing lighter fluid
sitting on their front porch.
Lee and Nelson then received a phone call from a family friend of Lee’s,
notifying them that they should go outside. At Lee’s direction, Nelson looked
through the peephole of the front door, which had a view of their driveway. She saw
3
appellant “standing in front of our black truck squeezing something that he had in
his hand and all I [saw] was flames.” Nelson saw appellant squeeze lighter fluid onto
Lee’s black truck and she saw a fire ignite. Nelson went outside and walked about
ten feet from the front door. She “locked eyes” with appellant, whom she had met
on several occasions and whom she identified in court, before going back inside the
house. She testified that the fire did not appear to be an accident, stating, “Because
[appellant] had banged on the door maybe ten minutes prior, banging and screaming,
telling [Lee] he want[ed] his money.” Nelson stated that she had “no doubt” that
appellant lit the fire that destroyed Lee’s truck.
When Lee learned that appellant had lighter fluid in his hand, he looked
outside and saw that appellant was holding a container of lighter fluid and that his
black truck was burning. Lee described the fire as a “very good blaze,” and he stated
that he had a “very good view of it.” He saw appellant speak to someone near his
mailbox at the end of the driveway before leaving his property, and Lee called the
police. Lee acknowledged on cross-examination that he did not witness appellant
pour lighter fluid on his truck or set the truck on fire.
Lee testified that while police officers and firefighters were at his house
investigating the fire, appellant called him. Lee put the call on speaker so officers
could hear the call, and he asked appellant why he set the fire. Appellant responded,
“I told you I wanted my money,” and Lee replied, “I told you I was going to give
4
you your money back tomorrow at 4:30.” Appellant called Lee several times that
evening, and, at one point, Lee offered to meet him at a nearby washeteria and to
give him whatever money Lee had in his possession and the remainder of the down
payment the next day, but appellant did not appear for this meeting.
While officers were still present at Lee’s house, appellant returned to the
scene, riding in the passenger seat of a car. Lee was speaking to an investigator at
the time, and he told the investigator that appellant was the one who started the fire.
The investigator informed other officers of what Lee had said, and the officers
detained appellant. Lee identified appellant as the perpetrator of the arson.
Houston Police Department Officer J. Hatcher was dispatched to Lee’s house,
where he saw a truck that had been burned along the hood and the dashboard. This
did not look like an accidental fire to Hatcher; instead, “[i]t looked like it was set.”
Hatcher observed a container of lighter fluid located on the ground near the truck.
Hatcher was present at Lee’s house when appellant returned to the scene as a
passenger in a car, and, after Lee identified appellant, Hatcher conducted a traffic
stop of the vehicle. Before officers arrested appellant, appellant stated that he had
come by Lee’s house because Lee owed him money and Lee had told him to come
to the house.
J. Eli, an arson investigator with the Houston Fire Department, was also
dispatched to Lee’s house, where he learned that the fire had been located around
5
the hood and front windshield of the black truck. Eli examined the entire truck and
saw that there was almost no damage to the truck’s engine compartment, indicating
that the cause of the fire was likely not mechanical or electrical. The damage from
the fire was “contained to the dashboard and the windshield and mostly on the hood,”
although a hole had burned through the windshield and “scorched” a portion of the
steering wheel and the driver’s seat. Based on the burn pattern, Eli determined that
the fire started on the outside of the truck. He also determined, based on the damage
to the truck, the statements of Lee and Nelson, and the presence of the container of
lighter fluid located close to the truck, that the fire was incendiary, “meaning that
somebody started the fire.” Eli collected swabs from the truck, as well as “a small
amount of fire debris,” and sent this material to be tested for the presence of
accelerants.
G. Chapa is an “accelerant detection canine handler” for the Houston Fire
Department, and he works with dogs who have been trained to detect the presence
of various accelerants. He was dispatched to the scene, and he walked his canine
around the truck. He was not able to get his canine up near the hood and windshield
of the truck, where investigators believed the fire had started. Chapa’s canine did not
alert on any portion of the truck, nor did he alert on appellant. The canine did,
however, alert on a patch of grass approximately twelve feet from the truck, and
Chapa was told that this was the area around where officers had found the container
6
of lighter fluid. Chapa offered several reasons why an accelerant-detection canine
would not alert on a person, including the possibilities that the person changed their
clothes, washed their hands, had worn gloves, or did not have any accelerant on
them. Chapa also testified that lighter fluid is typically packaged in a squeeze bottle,
and that, when using this type of bottle, accelerant may not get on the user “because
when you squeeze it, it projects [the fluid] away from you, instead of if you pour it,
it could splash on you.”
Emerald Nazareno, a forensic scientist with the Texas Department of Public
Safety Forensic Arson Laboratory, conducted the technical review of the testing of
the materials collected from the truck. The laboratory testing involved using a gas
chromatograph/mass spectrometer to test for the presence of ignitable substances.
The testing of the swabs and debris involved in this case revealed the presence of
“medium petroleum distillate,” which includes substances such as paint thinners,
paint strippers, and charcoal lighter fluids.
Ronald Magic, who had been friends with appellant for several years, testified
on appellant’s behalf. Magic testified that, on September 15, 2016, he first saw
appellant around 3:00 or 4:00 p.m., when they gathered with others for a barbecue.
At some point that evening, appellant received a phone call, which Magic heard
because appellant had placed his phone on speaker. After the phone call, appellant
asked Magic and another man if they could “take him over there,” which Magic
7
understood to be “the place where the person said he got part of [appellant’s] money
for him.” Magic agreed to drive appellant, and they drove past Lee’s house, where
police were still present. Officer Hatcher then conducted a traffic stop on Magic’s
vehicle, and officers arrested appellant. Magic testified that the only times appellant
was not in his presence from around 3:00 or 4:00 in the afternoon on September 15
to the time Hatcher stopped his vehicle were when appellant made two short trips to
a convenience store across the street from the barbecue to purchase more beer. Magic
had no personal knowledge “of any kind of arson at all.”
The jury found appellant guilty of the offense of arson. After appellant
pleaded true to the allegations in two enhancement paragraphs, the jury assessed his
punishment at twenty-six years’ confinement. This appeal followed.
Sufficiency of the Evidence
In his sole issue, appellant contends that the State failed to present sufficient
evidence that he burned Lee’s vehicle. Specifically, appellant argues that the State
did not present sufficient evidence that (1) he was the person who committed the
arson, and (2) Lee owned the vehicle that was burned.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
8
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Griffin v. State, 491 S.W.3d 771,
774 (Tex. Crim. App. 2016). The jurors are the exclusive judges of the facts and the
weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex.
Crim. App. 2008). The jury, as the sole judge of credibility, may accept one version
of the facts and reject another, and it may reject any part of a witness’s testimony.
Rivera v. State, 507 S.W.3d 844, 853 (Tex. App.—Houston [1st Dist.] 2016, pet.
ref’d).
We may not re-evaluate the weight and credibility of the evidence or substitute
our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex.
Crim. App. 2007). We give great deference to the jury’s credibility determinations.
Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). We resolve any
inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d
394, 406 (Tex. Crim. App. 2000); see also Murray v. State, 457 S.W.3d 446, 448–
49 (Tex. Crim. App. 2015) (“When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict, and we defer
to that determination.”). A criminal conviction may be based on circumstantial
evidence. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Temple v. State,
390 S.W.3d 341, 359 (Tex. Crim. App. 2013) (quoting Hooper v. State, 214 S.W.3d
9
9, 13 (Tex. Crim. App. 2007)). “Each fact need not point directly and independently
to the guilt of the appellant, as long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13.
B. Analysis
In this case, the State was required to prove that appellant started a fire by
igniting a flammable liquid with the intent to destroy or damage a vehicle owned by
Demetrius Lee and appellant knew that the vehicle was located on property
belonging to another. See TEX. PENAL CODE ANN. § 28.02(a)(2)(E). “[T]o sustain an
arson conviction, the State must show, in addition to the other elements, that the
accused set the fire or was ‘criminally connected therewith.’” Merritt, 368 S.W.3d
at 525 (quoting Bussey v. State, 474 S.W.2d 708, 710 (Tex. Crim. App. 1972)); see
Wiggins v. State, 255 S.W.3d 766, 771 (Tex. App.—Texarkana 2008, no pet.)
(“Identification of the defendant as the person who committed the offense charged
is part of the State’s burden of proof beyond a reasonable doubt.”). The State may
prove the defendant’s identity and criminal culpability “by either direct or
circumstantial evidence, coupled with all reasonable inferences from that evidence.”
Gardner, 306 S.W.3d at 285; Wiggins, 255 S.W.3d at 771 (“When a defendant
contests the identity element of the offense, we are mindful that identity may be
proven by direct evidence, circumstantial evidence, or even inferences.”).
10
At trial, Lee testified about the agreement he had with appellant concerning
the sale of a truck: appellant made a $700 down payment towards the total purchase
price of $2,500. After appellant told Lee that he could only pay around $40 at a time
towards the remainder of the purchase price, Lee called off the sale and arranged to
refund appellant’s down payment on September 16. Lee and Nelson testified that,
on September 15, appellant stopped by Lee’s house while Lee was not present and
had a conversation with Lee on Nelson’s cell phone. During this conversation, Lee
assured appellant that he would refund his down payment the next day.
Lee and Nelson testified that appellant stopped by their house again later that
evening. Appellant was cursing and banging on their front door, demanding that Lee
give him his money, and Lee declined to speak with him further. Lee then received
a phone call from a family friend, telling him to go outside. Nelson looked through
the peephole of their front door, and she could see their front yard and driveway,
where Lee had parked a black truck that he used for work. Nelson testified that she
saw appellant standing in front of the truck, squeezing something that he was holding
in his hands. She then saw the truck catch fire. Although Lee did not see the fire
ignite, he looked outside and saw appellant standing near the burning truck and
holding a container of lighter fluid. Lee, while in the presence of investigating police
officers, later spoke with appellant on the phone, and he testified that when he asked
appellant why he had set the fire, appellant responded, “I told you I wanted my
11
money.” Officers discovered a squeeze bottle containing lighter fluid lying on the
grass several feet from Lee’s truck. Analysis of debris from the fire revealed the
presence of “medium petroleum distillate,” which includes substances such as
charcoal lighter fluids.
The State thus presented testimony of an eyewitness—Nelson—who testified
that she saw appellant—a person with whom she was familiar—squeeze lighter fluid
onto the truck, which then ignited. The State also presented Lee’s testimony that he
was having a disagreement over money with appellant, that appellant had arrived at
Lee’s house just before the truck caught fire and was angry with Lee, that Lee
witnessed appellant standing near the burning truck holding lighter fluid, and that
appellant later admitted to Lee that he started the fire because Lee had not yet
returned his down payment. Based on this evidence, a rational jury could have found
beyond a reasonable doubt that appellant started the fire that burned Lee’s truck. See
TEX. PENAL CODE ANN. § 28.02(a)(2)(E); Merritt, 368 S.W.3d at 525.
On appeal, appellant attacks both Lee’s and Nelson’s credibility, arguing that
Lee was not a credible witness because he had lied about the purchase price of the
truck appellant had wished to buy and that Nelson’s identification of appellant as the
perpetrator of the arson, which took place through the peephole of the front door,
was not reliable. Lee testified that he had sold a white truck to appellant for a total
purchase price of $2,500, of which appellant paid $700 as a down payment.
12
Appellant introduced into evidence a receipt for $700, signed by both appellant and
Lee, that made no mention of a $2,500 total purchase price, and he also called as a
witness Eddie Clark, who purportedly witnessed the transaction between appellant
and Lee and testified that he had no recollection of any discussion of a $2,500
purchase price, only a payment of $700. The jury, however, is the sole judge of
credibility of the witnesses, and we presume that when evidence supports conflicting
inferences, the jury resolved those conflicts in favor of the verdict. See Gardner, 306
S.W.3d at 285; Murray, 457 S.W.3d at 448–49. It was within the province of the
jury to believe or disbelieve all or any part of Lee’s testimony and Clark’s testimony
concerning the transaction, and we will not re-evaluate Lee’s credibility on appeal.
Williams, 235 S.W.3d at 750; Rivera, 507 S.W.3d at 853.
With respect to Nelson’s testimony concerning her identification of appellant
through the peephole of her front door, the trial court admitted several photographs
of the house, the location of the front door, and the location of the driveway relative
to the front door. Nelson testified that the view of the driveway from the front door
was unobstructed. She also testified that, after she looked through the peephole and
saw appellant ignite the fire, she went outside and walked about ten feet from the
door. She then “locked eyes” with appellant before going back inside the house. As
with Lee’s credibility, it was within the province of the jury to examine the
photographs of the house and to determine that Nelson’s identification of appellant
13
as the perpetrator of the arson was credible and reliable. See Rivera, 507 S.W.3d at
853. We defer to the jury’s credibility determination. Gardner, 306 S.W.3d at 285.
As evidence undermining his conviction, appellant points out that Officer
Chapa’s canine did not detect the presence of lighter fluid on him and that Magic
provided an alibi for appellant, testifying that appellant was in his presence at a
barbecue at all times from around 3:00 or 4:00 in the afternoon on September 15 up
until the time Officer Hatcher conducted the traffic stop of Magic’s vehicle and
arrested appellant, with the exception of two instances when appellant made short
trips to a nearby convenience store to purchase more beer for the barbecue. Chapa
testified that his canine alerted to the presence of an accelerant on a portion of the
grass at Lee’s house, which is where the bottle of lighter fluid was found, but the
canine did not alert to the presence of an accelerant on appellant. Chapa also
testified, however, that when lighter fluid is packaged in a squeeze bottle, which was
the case here, traces of accelerant may not end up on the person using the lighter
fluid because the squeeze bottle “projects [the fluid] away from you, instead of if
you pour it, it could splash on you.” With respect to Magic’s alibi testimony, which
conflicted with Lee’s and Nelson’s testimony placing appellant at their house and
setting the truck on fire before Magic drove appellant by the house later that evening,
we again note that when the record supports conflicting inferences, we presume the
jury resolved the inconsistencies in favor of the verdict. See Murray, 457 S.W.3d at
14
448–49; see also Rivera, 507 S.W.3d at 853 (stating that jury, as sole judge of
credibility of witnesses, may accept one version of facts and reject another, and may
reject any part of witness’s testimony).
Finally, appellant argues that the State presented insufficient evidence that
Lee owned the truck that burned, as the State relied only on Lee’s testimony at trial
that he owned the truck and failed to provide any documentary evidence of
ownership such as a vehicle title or registration.3 Appellant, however, cites no
authority that such documentary evidence is necessary in an arson case and that a
person’s unequivocal testimony that he owns the vehicle that burned is insufficient
to establish ownership, particularly in a case in which ownership of the vehicle was
not contested at trial. Here, during cross-examination of Lee, appellant’s trial
counsel stated, “there is no dispute that your vehicle got burned” and “[n]obody is
arguing that your vehicle got burned.” Defense counsel instead framed the issue for
trial as being who committed the arson.4 The Court of Criminal Appeals has long
held that proof of ownership in arson cases may be established by parol evidence.
See, e.g., Hamilton v. State, 165 S.W.2d 737, 738 (Tex. Crim. App. 1942). Lee’s
3
Nelson also testified that the truck that burned belonged to Lee, describing the truck
as “our truck” and stating that Lee used the truck for work.
4
During closing argument, appellant’s trial counsel stated, “We also didn’t argue
about the fact that Mr. Lee had his vehicle destroyed. Also a bad thing.”
15
testimony that he owned the truck that burned is sufficient to establish ownership of
the vehicle.
Based on the evidence presented at trial and viewing the evidence in the light
most favorable to the verdict, we conclude that a rational jury could have found
beyond a reasonable doubt that appellant committed arson by igniting a flammable
liquid that damaged a vehicle owned by Lee. See TEX. PENAL CODE ANN.
§ 28.02(a)(2)(E); Merritt, 368 S.W.3d at 525. We therefore hold that the State
presented sufficient evidence to support appellant’s conviction for the offense of
arson.
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Goodman, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
16