Jason Noble v. State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-01-083 CR ____________________

JASON NOBLE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 80708

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O P I N I O N

A jury found Jason Noble guilty of arson and assessed his punishment at twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division and a fine of $10,000.

Requesting that the prosecution be dismissed, Noble brings one issue on appeal. He contends there was insufficient evidence to support the verdict because the State failed to prove all elements of the charged offense. He maintains specifically that the State failed to prove that a flammable liquid was ignited, and, thus, a fatal variance exists between the State's evidence and the allegations contained in the indictment and charge. Noble maintains there was no proof offered at trial that the fire was started by igniting a flammable liquid, and, thus, there was insufficient evidence to support the jury's finding as a matter of law.

In reviewing the evidence's legal sufficiency, we must determine whether, after considering the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Curry v. State, 30 S.W.3d 394, 405-06 (Tex. Crim. App. 2000). When evaluating the sufficiency of the evidence, the reviewing court must look at all the evidence, whether properly or improperly admitted. Bobo v. State, 843 S.W.2d 572, 575-76 (Tex. Crim. App. 1992).

Noble does not challenge the sufficiency of the evidence establishing that he started the fire that burned the home of Lori Wilson, his then estranged wife. ⁽¹⁾ Rather, Noble challenges the legal sufficiency of the evidence that a flammable liquid was used to start the fire.

Brian Simmons, an arson investigator, found "pour patterns" on the linoleum floor at the fire scene. He explained that wherever ignitable liquids are poured on a linoleum floor and ignited, the fire burns and "bubbles" the floor. In contrast, where no ignitable liquid is poured, the floor does not burn and bubble to the same degree. Simmons also identified as significant an aluminum strip that had been "burned through" by the fire. The strip, which separated the linoleum from the carpet, was melted away at one point, but parts of the strip on either side of the melted portion had not been damaged, an occurrence caused by the ignitable liquid's having been poured on the melted portion of the strip.

Harvey Hart, an arson investigator, testified the house contained several "heavy burn" areas that indicated the possibility of an accelerant's having been used, and explained that an accelerant was a flammable liquid. Further, he noted the house had a faint odor of a possible accelerant, with the smell becoming stronger in the areas identified as the possible points of origin. Hart took a sample of carpet padding because it smelled of accelerant.

The record also shows the fire department used approximately 5000 gallons of water to extinguish the fire. Captain Gary Sewell, a battalion chief with over thirty-one years of fire fighting experience, testified his men had difficulty with the fire's "flashing back" in some areas of Wilson's house, and that this problem generally was an indicator of the presence of a possible accelerant, usually a flammable liquid. After, Noble's trial counsel made a hearsay objection, the jury was instructed to disregard Sewell's testimony regarding flashbacks in the residence. The testimony, however, properly is included in our legal sufficiency review. See Bobo, 843 S.W.2d at 575-76.

Considering the evidence in the light most favorable to the jury's verdict, we find a rational trier of fact could have found that a flammable liquid was ignited to start the fire. The evidence is legally sufficient to support the jury's verdict. Noble's issue is overruled. We affirm the trial court's judgment.

AFFIRMED.

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DON BURGESS

Justice

Submitted on March 27, 2002

Opinion Delivered April 17, 2002

Do not publish

Before Walker, C.J., Burgess, and Gaultney, JJ.

1.

The record establishes Noble threatened to set fire to Wilson's house; he was seen at Wilson's home shortly before the fire was reported; he attempted to influence a witness to say he (Noble) was not present at the fire scene; and Noble later admitted to another person that he burned the house.