Stanford Dewayne Jones Sr. v. State

ACCEPTED
12-15-00157-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
10/15/2015 1:20:28 PM
Pam Estes
CLERK
__________________________________________________________________
12-15-00157-CR FILED IN
12th COURT OF APPEALS
_______________________________________________________________
TYLER, TEXAS
10/15/2015 1:20:28 PM
IN THE COURT OF APPEALS PAM ESTES
FOR THE TWELFTH JUDICIAL DISTRICT Clerk
TYLER, TEXAS
________________________________________________________________
STANFORD JONES, SR.
v.
The State of Texas
APPEAL FROM THE 159th DISTRICT COURT
OF ANGELINA COUNTY, TEXAS
Cause No. 2013-0744
AMENDED BRIEF OF APPELLANT
STANFORD JONES, SR.
__________________________________________________________________
Respectfully, Submitted:
/S/ John D. Reeves
JOHN D. REEVES
Attorney at Law
1007 Grant Ave.
Lufkin, Texas 75901
Phone: (936) 632-1609
Fax: (936) 632-1640
SBOT # 16723000
Email: tessabellus@yahoo.com
ATTORNEY FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Parties:
Appellant in Trial Court:
Stanford Jones, Sr.
TDCJ# 01836270
Appellee in Trial Court:
The State of Texas
Trial and Appellate Counsel:
Appellant:
JOHN D. REEVES Trial John W. Tunnell
Attorney at Law Attorney at Law
1007 Grant Ave P.O. Box 414
Lufkin, Texas 75901 Lufkin, Texas 75901
Phone: (936) 632-1609 Phone: 936/699-3131
Fax: (936) 632-1640 SBOT: 20292100
SBOT # 16723000
Appellee:
April Ayers- Perez Trial John Peralta
Asst. Angelina County District Atty. Asst. Angelina County District Atty.
P.O. Box 908 P.O. Box 908
Lufkin, Texas 75901 Lufkin, Texas 75901
Phone: 936-632-5090 Phone: 936/ 632-5090
SBOT# SBOT# 15771250
ii.
TABLE OF CONTENTS
Page:
IDENTITY OF PARTIES AND COUNSEL……………………………………. ii
TABLE OF CONTENTS…………………………………………………….......iii
INDEX OF AUTHORITIES…………………………………………………... iv-v
STATEMENT OF THE CASE……………………………………………….....1-2
STATEMENT OF JURISDICTION………………………………………………2
ISSUE PRESENTED................................................................................................2
STATEMENT OF FACTS …………………………………………………..…3-29
SUMMARY OF THE ARGUMENT ……………………………………........29-30
ARGUMENT………………………………………………………………….30-45
CONCLUSION AND PRAYER…………………………………………………45
CERTIFICATE OF COMPLIANCE…………………………………………….46
CERTIFICATE OF SERVICE…………………………………………………..46
iii.
INDEX OF AUTHORITIES
Page:
U.S. Supreme Court Cases
Jackson v. Virginia, 443 U.S. 307, (1979)………………………..……….31,38
Texas Cases
Campbell v. State, 382 S.W.3d 545, (Tex. App.-Austin 2012, no pet.) ………..42
Ellingsworth v. State, 487 S.W.2d 108, (Tex. Crim. App. 1972) ……………....41
Gonzalez v. State, 337 S.W.3d 473, (Tex. App.-Houston [1 Dist.] 2011) ..31,32
Hooper v. State, 214 S.W.3d 9, (Tex. Crim. App. 2007)…………….…….....31
Malik v. State, 953 S.W.2d 234, (Tex. Crim. App. 1997)…………………….32
Malone v. State, 253 S.W.3d 253, (Tex. Crim. App. 2008)…………………..38
Martinez v. State, 327 S.W.3d 727, (Tex. Crim. App. 2010) ………………..…..41
Montgomery v. State, 810 S.W.2d 372, (Tex. Crim. App. 1990)
(op. on reh'g). ……………………………………………….………..…….…….41
Moore v. State, 652 S.W.2d 411, (Tex. Crim. App. 1983) …………………..….42
Moses v. State, 105 S.W.3d 622, (Tex. Crim. App. 2003) ….……………….…41
Osteen v. State, 61 S.W.3d 90, (Tex. App.—Waco 2001, no pet.). ………….41,42
Shea v. State, 167 S.W.3d 98, (Tex. App.-Waco 2005, pet. ref'd……….……….43
Taylor v. State, 268 S.W.3d 571, (Tex. Crim. App. 2008) ……………….…….41
iv.
Thomas v. State, 444 S.W.3d 4, (Tex. Crim. App. 2014) ………………….31
Tienda v. State , 358 S.W.3d 633 (2012) ….………………………..……….43,45
Williams v. State, 235 S.W.3d 742, (Tex. Crim. App. 2006) ………..32,37,38
RULES AND OTHER AUTHORITIES
Tex. Penal Code Ann. Section 28.02 ( West 2011) ….…..………..………….30
Tex. Rules Evidence 613(a) ….…………………………….……..……….38,41
Tex. Rules Evidence 901….…………………………………………..……….43
v.
___________________________________________________________
12-15-00157-CR
_______________________________________________________________
IN THE COURT OF APPEALS
FOR THE TWELFTH JUDICIAL DISTRICT
TYLER, TEXAS
________________________________________________________________
Stanford Jones, Sr.
v.
The State of Texas
APPEAL FROM THE 159th DISTRICT COURT
OF ANGELINA COUNTY, TEXAS
Cause No. 2013-0725
BRIEF OF APPELLANT
STANFORD JONES, SR.
TO THE HONORABLE COURT OF APPEALS;
STATEMENT OF THE CASE
Appellant was indicted by a grand jury in the October/ December term for
six counts of Arson. (CR p. 19-21) On June 3, 2014, Appellant waived
arraignment and entered a plea of not guilty on all counts. (CR p. 6) A jury was
selected on March 23, 2015. ( RR Vol. 2) A jury trial began on March 23,2014
and concluded on March 25, 2015. Appellant was found guilty on counts I,II,V of
a six count indictment for the offenses of arson.. (RR Vol. 5 p.119) The state
abandoned count IV and appellant was found not guilty on counts III and VI.. A
sentencing hearing was conducted on May 15, 2015 and appellant was sentenced to
twenty years in the ID-TDJC.( RR Vol. 6) Notice of Appeal was filed on June
10, 2015. (CR p. 115) John Reeves was appointed to represent Appellant on June
10, 2015. (CR p. 114)
STATEMENT OF JURISDICTION
The Trial Court Certification was signed by the trial court on June 10, 2015 and
states that the case was not a plea bargain case, and the defendant has the right of
appeal. (CR p. 119-120)
ISSUE PRESENTED
Issue 1
The evidence is legally insufficient to prove the three offenses of Arson
as alleged in count I, II and V in the indictment.
Issue 2
The trial court erred in permitting impermissible impeachment evidence.
Issue 3
The trial court erred in allowing face book prints which were not
properly authenticated.
2.
STATEMENT OF FACTS
The case was called for trial upon an indictment charging appellant with six
counts of arson ,of which appellant was convicted of three. 1) with intent to
damage or destroy a habitation located in Lufkin, Texas, start a fire by igniting a
stick with leaves and other items against said habitation, knowing that said
habitation was within the limits of an incorporated city or town, 2) with intent to
damage or destroy a building located in Lufkin, Texas, start a fire by putting
accelerant on said building and lighting it knowing that said building was within
the limits of an incorporated city or town, 5) with intent to damage or destroy a
habitation located in Lufkin, Texas, start a fire by igniting a piece of carpet, rug or
paper, knowing that said habitation was within the limits of an incorporated city or
town. (RR Vol. 3, p. 21-24) The testimony considered by the jury on
guilt/innocence consisted of twenty witnesses beginning with the testimony of
Officer Sean Alexander of the Lufkin Police Department (LPD). (RR Vol. 3, p. 32-
40)
Officer Alexander testified he had been employed with LPD for nine years.
(RR Vol. 3, p. 32-33) He was dispatched on November 13, 2012 to 907 O’Quinn
where he made contact with the homeowner, Samuel Gilmore, who stated that he
thought his house had caught fire. (RR Vol. 3, p. 33-34) The Officer observed
some ash and scorching on the side of the house and two vehicles about ten feet
from the house that had been tampered with. Both cars had gas running down the
side, one had a rag sticking in the fuel tank and the other car’s gas cap had also
been removed. (RR Vol. 3, p. 34)
State’s Exhibit 2A through 2R, photographs of the house at 906
O’Quinn and its surroundings were admitted. (RR Vol. 3, p. 34-35) The Officer
3.
identified State’s Exhibit 2E as the left side of the house and the two vehicles. (RR
Vol. 3, p. 35-36) State’s Exhibits 2H, 2I, 2J, and 2L, were the char marks on and
around the window and ash below the window on the left side of the house, where
the fire was located when he arrived. (RR Vol. 3, p. 36) State’s Exhibit 2M shows
the rag sticking out of the vehicle fuel filler hole that appears black in color and
was wet to the touch. (RR Vol. 3, p. 36-37) State’s Exhibits 2P and 2Q showed the
back of the house with char marks on the window frame. (RR Vol. 3, p. 37)
On cross-examination, Officer Alexander stated that he was dispatched at
about 4:45 a.m. (RR Vol. 3, p. 38) He could not recall his response time. He was
not aware of whether anyone else was at the residence than Mr. Gilmore and did
not recall talking to or seeing anyone else in the area. (RR Vol. 3, p. 39-40)
Officer Christopher Nash, a patrol officer of the LPD for nine years,
responded to a fire at 1401 Keltys on November 13,2012.. (RR Vol. 3, p. 41-54).
Officer Nash testified that he talked to a neighbor who told him the residence had
been vacant for some time. He identified where the fire appeared to have started at
the back of the residence and he observed a red lighter fluid can less than a foot
underneath the building where flames were emitting. He hit and kicked the can to
the street. (RR Vol. 3, p. 42-44)
State’s Exhibits 4A through 4G, photographs of the structure at 1401 Keltys
after the fire had been extinguished, were admitted. The Officer identified State’s
Exhibit 4D as the back of the house that was on fire. (RR Vol. 3, p. 46) He
described where he found the lighter fluid can under the house and identified the
can in State’s Exhibit 4G. (RR Vol. 3, p. 47)
On cross examination, Officer Nash stated that he responded at about 5:20
a.m. (RR Vol. 3, p. 48) The witness stated that the lighter fluid can was about the
3.
size of a book. He testified that no one was present around the house. (RR Vol. 3,
p. 50) Officer Nash stated that Officer Davis stopped and spoke with LaTonya
Siggers who was riding a bicycle down the road. (RR Vol. 3, p. 51)
On redirect examination, Officer Nash identified the lighter fluid can
collected at the residence. The can was contained in a paper bag that was placed in
a box sealed with yellow evidence tap from the LPD’s evidence property. (RR Vol.
3, p. 52) State’s Exhibits 5 and 5A, the brown paper bag and lighter fluid can, were
admitted. (RR Vol. 3, p. 53-54)
James “Baski” Davis, testified that he had lived in Lufkin all of his life and
identified the defendant as Stanford Jones. (RR Vol. 3, p. 54-62) He remembered
the fire, but he wasn’t with and did not see the defendant. He got up around 4 a.m.
and saw somebody, wearing a hood, riding a bike, coming off of Keltys behind the
house. When he got off work that evening, the house was gone. He had told the
Fire Marshal, Steve McCool, about seeing someone on a bicycle. (RR Vol. 3, p.
57-58)
The defense attorney objected to the witness testifying to what he had said
on another occasion outside of court as being hearsay, unless being offered for a
limited purpose. The court allowed the testimony for the limited purpose of
impeaching the credibility of the witness. (RR Vol. 3, p. 58-59) Mr. Davis testified
that he had spoken with the Fire Marshall in person and had viewed a photograph
of more than one person. Mr. Davis stated that he did not recall telling the Fire
Marshall who was on the bicycle. He did recall telling the Fire Marshall that the
defendant was a classmate. The witness testified that he did not know why the Fire
Marshall was talking to him and that he did not recall helping him with the
investigation. (RR Vol. 3, p. 60-62)
Steve McCool, Fire Marshall for the City of Lufkin for six years,
4.
investigates fires in the city to determine the origin, cause, and circumstances
resulting in a fire. (RR Vol. 3, p. 64-98) On November 13, 2012, he investigated a
fire at 906 O’Quinn. (RR Vol. 3, p. 68) State’s Exhibit 11, a certified copy of the
Lufkin City Charter, was admitted. (RR Vol. 3, p. 69) Mr. McCool explained there
were multiple points of origin of the fire outside the structure with no other
reasonable competent source of ignition, which indicated that the fire was
intentionally set. There was also a stick that was set up against the house that was
on fire. (RR Vol. 3, p. 70) There was a similar stick located in the back of the
property that appeared to have been removed from a pile and brought to the house.
There was also a tire leaning on another window with debris on top that had caught
on fire. He opined that fire could not have initiated in the two different locations.
There were no electrical receptacles or other possible ignition source, so he
determined that both fires were intentionally set. There was also a Jeep parked
three to five feet from the left side of the house, that had the gas cap removed with
a rag in the tank filler point. Since the cap was nearby, it appeared clear that the rag
was not used as a gas cap and was “obviously” placed there. (RR Vol. 3, p. 71-72)
Mr. McCool viewed State’s Exhibit 2I, a photograph of the left side of the
house. He pointed out the fire damage from the stick. He explained that the stick
had been removed prior to his arrival, but when he placed the stick back in its
location, it matched the burn patterns. There appeared to be fire damage on the
windowsill, and on the ground in front of the windowsill. (RR Vol. 3, p. 72) State’s
Exhibit 2G, was a photograph of the stick and 2B was a photograph of a cigarette
lighter found in the yard, but he did not know whether the lighter was used to start
the fire. (RR Vol. 3, p. 73-74)
State’s Exhibit 13, a black rag, was removed from packaging. (RR Vol. 3, p.
77-78) Mr. McCool testified that State’s Exhibit 13 is the rag he saw. (RR Vol. 3,
5.
p. 79-80) Mr. McCool testified that he found some bicycle tracks at the 906
O’Quinn scene. He had seen a bicycle at defendant’s and defendant’s mother’s
residence. However, he was unable to match the tires of the bicycle and bicycle
tracks. (RR Vol. 3, p. 81) The prosecutor asked Mr. McCool what Mr. Davis had
told him. (RR Vol. 3, p. 82)
The defense attorney objected on the basis of hearsay and violation of the
Sixth Amendment right to confrontation to admit that for the truth of the matter
asserted. (RR Vol. 3, p. 82) The prosecutor argued that Mr. Davis was previously
on the stand and was available to be confronted, that he was impeaching Mr. Davis
with a prior inconsistent statement, and that he gave Mr. Davis an opportunity to
admit or deny making this statement. (RR Vol. 3, p. 83)
During a bench conference, defense counsel stated that the prior statement
by Mr. Davis was being offered for all purposes, not just impeachment. The
prosecutor argued that he had given Mr. Davis the opportunity to admit making the
statements and he denied it, so the prosecution was allowed to put in extraneous
evidence that the statements were made under Rule 613A. The statement was
verbal, recorded and transcribed. The court allowed the statement to be admitted
for all purposes. The court noted defense counsel’s objection due to hearsay, and
overruled the objection. (RR Vol. 3, p. 83-86)
Mr. McCool stated that when he called Mr. Davis, Mr. Davis stated that he
had some information. (RR Vol. 3, p. 87) Mr. McCool met Mr. Davis who said that
he saw a man on a blue bicycle go behind the house that caught fire. Mr. Davis
viewed a picture produced by Mr. McCool of the defendant taken at an LPD
interview room and identified the person in the picture as the defendant. (RR Vol.
3, p. 88) The witness stated that Mr. Davis said that the defendant was the person
riding the bicycle and that they had been classmates. Mr. Davis also told him what
6.
the bicyclist was wearing, his build, and told him to look at his Facebook page.
(RR Vol. 3, p. 89) Defense counsel objected and asked that the jury be instructed
to disregard the last statement. The Court instructed the jury to disregard the last
question and response. Defense counsel moved for a mistrial which the court
denied. (RR Vol. 3, p. 89)
Mr. McCool investigated another fire at 1000 Hosea Adolphus, in the city of
Lufkin, Angelina County, Texas on the same day. (RR Vol. 3, p. 90) State’s
Exhibits 6A through 6E, photographs of the structure at 1000 Hosea Adolphus,
were admitted. (RR Vol. 3, p. 90-91) Ruby Alexander lived at this location. State’s
Exhibit 6B showed the back of the structure and a pickup truck which was where
the fire was located. The truck was situated about three to five feet from the
structure. (RR Vol. 3, p. 92) State’s Exhibit 6C shows blackening in the bed of the
truck, and State’s Exhibit 6E showed some material in the bed of the truck that was
damaged by the fire. (RR Vol. 3, p. 93) Mr. McCool testified that he believed the
fire was intentionally set, primarily because there was a reasonable or competent
source of ignition in that area, and it occurred within two hours and within a block
of two other cars that were, in his opinion, intentionally set. (RR Vol. 3, p. 93) In a
conversation with the defendant, Mr. McCool stated that he had asked the
defendant whether he was related to Marktez Alexander, and the defendant stated
he was not but that they both fathered a child with the same woman. Mr. McCool
testified that the defendant was very upset. (RR Vol. 3, p. 94)
On cross examination, Mr. McCool stated that he took photographs of the
bicycle tire tracks at the 906 O’Quinn location. The tire tracks were in very fine
powdered sand, so it didn’t leave good tracks, and he could not say whether those
tracks were from the bicycle located at the defendant’s home. (RR Vol. 3, p. 95)
Mr. McCool testified that Mr. Davis did not tell him he saw the defendant on the
7.
bicycle at first. Mr. McCool did not offer a photograph of anyone else for Mr.
Davis to identify the bicyclist. (RR Vol. 3, p. 96) Mr. McCool stated that most of
the people he had been dealing with had prior convictions, but was unaware that
Mr. Davis had four felony convictions. (RR Vol. 3, p. 97)
At a bench conference, the court stated that he should have limited Mr.
McCool’s statements regarding his discussion with Mr. Davis to impeachment
purposes, i.e., the inconsistent statements only and not for all purposes. Defense
counsel stated that the court overruled his objection. The court stated that they can
instruct the jury, and that it didn’t believe that anything was asked other than for
impeachment purposes that made any difference. (RR Vol. 3, p. 98)
Ozzie Jarman, Captain with the Lufkin Fire Department (LFD) has been
with the LFD for nearly 14 years. (RR Vol. 3, p. 99-104) Mr. Jarman investigated a
fire at 1401 Keltys on November 13, 2012. (RR Vol. 3, p. 100) In his opinion, the
fire was set intentionally based on the fact that the structure was boarded up, the
fire started on the outside of the structure on a windowsill, there was no gas or
electricity, and there was no reasonable or competent ignition source other than an
outside source, which could have been a match or lighter. Additionally, right under
the point of origin there was a can of lighter fluid. Mr. Jarman interacted with the
defendant several times, once pursuant to a court order to obtain a DNA sample.
He did collect and preserve a DNA sample according to the step-by-step
instructions and turned the sample in to the police department’s evidence room.
Mr. Jarman identified State’s Exhibit 12 as the buccal swab contained in an
envelope with his handwriting. (RR Vol. 3, p. 101-104)
Keith Lewing is the custodian of records and records supervisor for LPD.
(RR Vol. 3, p. 105-110) Mr. Lewing discussed the collection and retention of in-
8.
car videos. The collection and initial storage of videos is automated. (RR Vol. 3, p.
106-109) State’s Exhibit 8, a video of a fire that occurred on November 14, 2012
was admitted, a portion of which was published. (RR Vol. 3, p. 109-110)
Fire Marshal Steve McCool was recalled. (RR Vol. 3, p. 111-120) Mr.
McCool had also investigated a fire on November 14, 2012 on Wilson Street.
State’s Exhibits 7A through 7Q, photographs of the 917 Wilson premises, were
admitted. (RR Vol. 3, p. 112-113) Mr. McCool testified that he could not conclude
whether this fire, the largest of the six fires, was intentional or not, but believed it
was more likely than not that it was set intentionally. He did find it suspicious
since it was unoccupied, had no electricity or gas, involved two other structures,
and the time of day and proximity in time and location to the other fires. The
witness testified that the house on the right caught fire first, burning to the ground,
and he believed the radiant heat caused the adjacent house to catch fire, then a
garage apartment behind the structure caught fire. State’s Exhibit 7B showed the
garage apartment and the remains of the first structure. It is Mr. McCool’s opinion
that the fire was initiated only in the first structure, and can’t definitively say that
fires were started in the other two structures. State’s Exhibit 7K shows the first
burned structure. (RR Vol. 3, p. 113-116)
On cross examination, Mr. McCool testified that the fire on Wilson Street
was suspicious but was classified of undetermined origin, which could include an
accident. The witness testified that he did not collect evidence to determine
whether an accelerant was used. He could only say it was more likely than not that
the fire was intentionally set, and could not be more definitive. There was a
reference in some of the materials to a heavyset white female, wearing a black
hooded shirt leaving in a green car that had not been located. No physical evidence
9.
was taken from the Wilson location due to the extent of the damage which
prevented a determination of whether the fire was set intentionally. (RR Vol. 3, p.
116-120)
Michelle Dupree testified she is a good friend with defendant. (RR Vol. 3, p.
120-126) On the morning of November 15, 2012, she recalled dropping the
defendant off at his home around 7:15 to 7:30 a.m., and he went to the backyard,
she believed to get in the house. She then went home to change clothes prior to
going to class at Angelina College. She remembered it was around that time
because she was five minutes late to class and was reprimanded for being late. She
did not recall telling Mr. McCool it was around 6:00 or 6:15 a.m. (RR Vol. 3, p.
123-125)
The prosecution recalled Steve McCool. (RR Vol. 3, p. 127-131) Mr.
McCool testified that he spoke with Michelle Dupree on several occasions. Mr.
McCool stated it had been important to talk to her because the defendant said he
was at her house. Defense counsel objected due to hearsay and the court ruled that
any statements regarding what Ms. Dupree said were permissible for impeachment
purposes only. Defense counsel requested that the jury be instructed on the
meaning of impeachment. The court stated that impeachment is when you have a
witness that makes one statement that is completely contrary to their prior
statement, it is an inconsistent statement. The court is admitting the statement for
that reason only, that the witness said one thing one day and another thing today.
Defense counsel requested that the court instruct the jury that Mr. McCool’s
testimony regarding Mr. Davis’ statements were limited to impeachment purposes
as well. (RR Vol. 3, p. 127-130) Mr. McCool stated that Ms. Dupree had told him
she returned home between 6:00 and 6:15 a.m. She remembered that because her
alarm went off right after she arrived home. Mr. McCool regularly records his
10.
interviews and the recordings are transcribed. (RR Vol. 3, p. 130-131) Bobby
Hobbs is the Battalion Chief for LFD, being with LFD for 29 years. (RR Vol. 3, p.
135-145) He responded to a fairly sizable fire at 514 Wilson. (RR Vol. 3, p. 135-
136) Initially they normally send three stations, which is what happened for this
fire. (RR Vol. 3, p. 137) Regarding this fire, the first thing that might be different
or unusual was that station five arrived on scene first and reported that three
structures were on fire and an unusual blue color flame from the front of one of the
structures. The blue color flame signifies something unusual like a significant gas
leak, an accelerant or other chemical. It appeared that one structure had been
burning longer than the others and had started to collapse, and the other two
structures were fully involved in flame. Since the structures appeared to be vacant,
the goal was not to try to save the structures, but to contain the fire and make sure
it did not spread. The witness testified that the fire was under control in about 25
minutes. He also recalled an extremely concerned family was out in the front yard
across the street. (RR Vol. 3, p. 138-141) He said fire most often spreads either
through direct contact or by radiant heat. (RR Vol. 3, p. 142)
On cross examination, Chief Hobbs stated that the blue flame could be
caused by a gas leak or an accelerant. The LFD did contact the gas company and it
was Chief Hobbs understanding that there were no gas lines in that particular area.
Regardless, it still could have been a gas leak, but in his opinion that is unlikely.
(RR Vol. 3, p. 143) Chief Hobbs did not determine what caused the fire. He relies
on an investigator when the cause is not obvious. There are a lot of reasons that
unintentional fires occur. (RR Vol. 3, p. 144)
Mr. McCool was recalled. (RR Vol. 3, p. 145-159) On November 15, 2012,
two fires occurred with multiple ignition points. On that day, Mr. McCool had an
opportunity to investigate a fire at Lanzy’s Club, also called Owens’ Club located
11.
at 813 Keltys where the defendant had an altercation prior to these fires. (RR Vol.
3, p. 146) State’s Exhibits 9A through 9N, photographs of 813 Keltys and the
surrounding areas, were admitted. (RR Vol. 3, p. 147-148) The first story of the
structure is the club and the second story is the residence of Ms. Owens, a relative
of Lanzy Owens, the owner. (RR Vol. 3, p. 149) Mr. McCool testified that there
were at least three sources of ignition. State’s Exhibits 9C and 9B show fire
damage on a white metal door and a piece of brown paper, the ignition source, with
fire damage that had been wedged in the door. (RR Vol. 3, p. 150-151) State’s
Exhibit 9F shows stairs to the upstairs residence, being the only access to the
residence and a door at the base of the stairs that is the back entrance to the club.
(RR Vol. 3, p. 151) State’s Exhibits 9G, 9H, 9J and 9I were photographs of the
back door to the club and show fire and heat damage to the door, and the
newspapers which were the ignition source. (RR Vol. 3, p. 152) State’s Exhibit 9L
showed the building’s floor mat hanging off the roof that had fire damage. (RR
Vol. 3, p. 153) In his opinion, three sources of fire would point to an intentionally
set fire. (RR Vol. 3, p. 154) With most of the fires that he investigated, the
materials used in ignition were readily available at the scene such as the floor mat,
paper, and the stick. (RR Vol. 3, p. 155)
On cross examination, regarding 813 Keltys, Owens Club, Mr. McCool
stated the remainder of the paper that was stuffed into the door was submitted to
evidence, but the newspaper was wet, so it was not submitted for fingerprint
analysis. (RR Vol. 3, p. 156-157)
Ozzie Jarmen was recalled. (RR Vol. 3, p. 159-165) Mr. Jarmen also
investigated a fire at 714 Cottonbelt on November 15, 2012. (RR Vol. 3, p. 160)
State’s Exhibits 10A through 10H, photographs of the structure and surrounding
areas of the 714 Cottonbelt fire, were admitted. (RR Vol. 3, p. 160-161) State’s
12.
Exhibit 10D shows the attached carport and laundry room, where the fire was
located. State’s Exhibits 10E and 10G show one piece of plywood that was left in
the laundry room and the remnants of pine straw and cardboard used to ignite the
fire. State’s Exhibit 10C shows another piece of plywood that was removed by a
LPD officer. The LPD officer was alerted to the fire stopped to investigate and
removed that piece of plywood to the driveway to prevent the fire from spreading.
The house was vacant. Mr. Jarmen’s opinion is that this fire was intentionally set
based on the facts that the house was abandoned, there was no electricity or gas,
there was no other competent and reasonable ignition source in that area, and the
pine straw and cardboard appeared to be positioned in a way to ignite the plywood.
The photographs show that some of the pine straw and cardboard had been
charred. (RR Vol. 3, p. 161-165)
Laura Owens Black, Lanzy Owens’ sister, was called as the next witness.
(RR Vol. 4, p. 7-11) She currently lives in the second story, above Owens Club at
817 Keltys. (RR Vol. 4, p. 8) She was asleep at the time of the fire, smelled
something burning, thought it was the burn pile, but then looked out the kitchen
window and saw the back door of the club was on fire. She then ran down the
stairs and next door where her brother lived, and called the fire department. The
witness testified that her brother started putting out the fire with a water hose and
was almost extinguished by the time the LFD got there. Ms. Black testified that the
stairs are the only access to the second story apartment. (RR Vol. 4, p. 10-11)
Lanzy Owens lived at 815 Keltys for 62 years. (RR Vol. 4, p. 11-18) He has
operated the club since 1987, and owns the whole block. (RR Vol. 4, p; 12) He
lives in the house next door. The fire of November 15, 2012 started between 5:00
a.m. and 6:00 a.m. He recalled his sister, Ms. Black screaming. He went outside
and the club door was on fire. His sister was standing at the top of the stairs, so he
13.
grabbed the water hose, sprayed the door, unlocked it and opened it. The whole
building was filled with smoke. Mr. Owens testified that he extinguished the fire.
Only the door was on fire. The flames were reaching the roof, so he sprayed the
roof first and then the door. Mr. Owens viewed State’s Exhibits 9A, 9D, and 9F
and described the structures and visible fire damage. State’s Exhibit 9M showed
that carpet that was thrown on the roof, and the witness opined that “he could not
reach it anymore, so that is why he went to the back.” The day before the fire, the
carpet and paper were not there. He did not see anybody set the fires. (RR Vol. 4,
p. 13-17)
Officer Brandon White had worked for the LPD for five and a half years.
(RR Vol. 4, p. 18-23) On the morning of November 15, 2012, he was travelling
down Cottonbelt and observed smoke emitting from underneath a carport. He
discovered an active fire in the washroom. A piece of plywood that was on fire was
leaned up against the washroom wall. Officer White testified that he removed the
wood from the room to the yard. The fire department responded and the put the fire
out. The witness testified that the fire appeared to have just been set. The fire was
small and did not “get on the walls that much.” Officer White viewed and
described State’s Exhibits 10A, the residence, 10D, the carport, and 10 C and 10E,
the board he removed. (RR Vol. 4, p. 19-22)
Officer Jeremy Charvoz is a patrol officer with the LPD. (RR Vol. 4, p. 23-
28) At the time of the fires, he was a crime scene technician, collecting and
preserving evidence, photographing the scene, and storing and securing evidence.
(RR Vol. 4, p. 24) He responded to 906 O’Quinn on November 13, 2012. Officer
Charvoz identified the vehicle and the black rag hanging out of the gas tank in
State’s Exhibits 2L and 2M. (RR Vol. 4, p. 25) The black rag was collected for
14.
evidence, placed in a brown sack, labeled, secured at the scene and transported to
the LPD property room. Officer Charvoz identified State’s Exhibit 13 as the black
rag that was collected at the scene of the fire. (RR Vol. 4, p. 26)
On cross examination, Officer Charvoz stated that other items were collected
for evidence such as photographs, a black gas cap and a cigarette lighter. He was
unaware of whether any testing was performed on these items after being collected.
(RR Vol. 4, p. 27-28)
Stephen Abbott is the Sergeant of Criminal Investigations for the LPD. (RR
Vol. 4, p. 28-36) He was called out at about 7:15 to 7:30 a.m. on November 15,
2012, to respond to a possible arson event at Owens’ Club on Keltys. Upon arrival,
he was directed to the front door where it appeared that someone had attempted to
set it on fire. (RR Vol. 4, p. 29) He believed there were two fires that morning, one
on O’Quinn and one on Keltys. These locations are about seven or eight blocks
apart. The LPD walked the railroad track trail that runs from O’Quinn to the
backside of Owens Club, because that was the most logical place for someone not
to be seen. Sergeant Abbott identified the railroad tracks on State’s Exhibit 1. The
witness testified that the weather was almost freezing with a hard frost on the
ground. He identified some phlegm that appeared fresh, and directed that a swab be
collected. The swab was entered into evidence and transported to DPS for analysis.
(RR Vol. 4, p. 29-32)
On cross examination, Sergeant Abbott corrected himself that the trail ran
between Owens’ Club and Cottonbelt, not O’Quinn. The witness testified that
people have access to the trail along the train tracks. He opined the trail was an
area which was used by people who wanted to avoid detection, but not all people
who use the trail want to avoid detection. The Sergeant testified that the distance
15.
from Owens’ Club to Cottonbelt, is between one-half mile to one mile. (RR Vol. 4,
p. 34-36)
Christy Pate works for the LPD in the property and evidence section and
crime scene technician. (RR Vol. 4, p. 37-46) Her duties include collecting
evidence, storing evidence, sending evidence to labs and bringing it to court.
Regarding this case, she did not collect any evidence, it had already been collected.
On July 10, 2013, three pieces of evidence were sent by certified mail to the DPS
lab in Houston, being a buccal swab from the defendant, some swabs of saliva, and
a black cloth. A buccal swab is like a Q-tip that you swab a person’s mouth to
collect DNA. The items were properly packaged and stored. Ms. Pate discussed
chain of custody procedures. The DPS lab retains the evidence until LPD picks it
up in person or via mail. These particular items were picked up by her partner,
Christi Esteves. (RR Vol. 4, p. 38-41)
On cross examination, Ms. Pate confirmed that one of the reasons to collect
evidence is for various testing like DNA and fingerprints. (RR Vol. 4, p. 41) Other
items were also collected as evidence, one of which may have been a cigarette
lighter, but she wasn’t sure because she did not have her evidence sheets available.
She believed Officer Charvoz collected the cigarette lighter and had it tested for
fingerprints. (RR Vol. 4, p. 42) Also, according to notes on an evidence sheet, Ms.
Pate testified that a lighter fluid can was sent on November 15, 2012 to
Southwestern Forensics in Dallas. Ms. Pate explained that the log sheet she was
viewing contained notes for her purposes and there is more paperwork that goes
with different items. Defense counsel noted that the log sheet did not mention the
cigarette lighter. Ms. Pate explained that the lighter is on another log sheet since
several case numbers were associated with this case. Defense counsel requested to
view all of the logs. (RR Vol. 4, p. 43-44) Ms. Pate admitted that she wasn’t sure
16.
whether latent fingerprints were taken from any of the items on her log sheet. She
stated that either Officer Charvoz or Debra Walsh may know whether latent
fingerprints were obtained from these items. (RR Vol. 4, p. 45)
Christi Esteves also works for the LPD as a property evidence technician
and crime scene technician. (RR Vol. 4, p. 46-49) Ms. Esteves has worked as a
property evidence technician for the past year and a half. (RR Vol. 4, p. 46) She
was not involved in the logging, storage, or submitting to a lab of the evidence in
this case. She did pick up and transport the three items, being the black rag, the
buccal swab and two swabs from the railroad tracks, from the DPS lab in Houston
to the LPD facility. Ms. Esteves testified about the chain of custody and storage of
the three items. (RR Vol. 4, p. 47-48)
Brenda Jones Runnels is the defendant’s mother. (RR Vol. 4, p. 50-71) Ms.
Runnels testified that she had been at the defendant’s house for a while during the
day and left around 8:00 p.m. At midnight, she received a call to come check on
the defendant. (RR Vol. 4, p. 53) She saw him walking down the street on Keltys,
acting strangely and he was wearing jeans and a button down shirt. His girlfriend
was with him and some other people. Ms. Runnels stated that he said he had hit a
wall and thought he broke his fingers. She and another son, Carl Jr., drove him to
the hospital. (RR Vol. 4, p. 54-55) Evelyn Hamilton was his girlfriend at the time.
He was in the hospital for three or four days. The witness testified that the hospital
never said what was wrong with the defendant. (RR Vol. 4, p. 55-57) State’s
Exhibit 24A through 24I, photographs of the defendant were admitted. (RR Vol. 4,
p. 58-60) The witness was shown State’s Exhibit 24D, a photograph of the
defendant in the hospital. She wasn’t sure who took the picture, but thought it may
have been little Carl. Ms. Runnels testified that she did not know until later that
this photograph was posted on the defendant’s Facebook page and didn’t know
17.
when it had been posted. (RR Vol. 4, p. 61-63) Ms. Runnels stated that, while in
the hospital, the defendant talked on his phone some, but that she did not see him
using Facebook. (RR Vol. 4, p. 65) She stated that if there were some behavior that
she didn’t like, she would address that face-to-face, not through Facebook. (RR
Vol. 4, p. 66)
During a bench conference, defense counsel objected to testimony regarding
the content of the Facebook postings since there was an issue about authentication
that the Court had not ruled on as part of his motion in limine. The prosecution
stated that he was just asking the witness what upset her about the defendant’s
Facebook page and that the defendant’s family members routinely conversed with
him online. The prosecution stated that he had two witnesses claiming that the
defendant had his phone while in the hospital and that he posted things to
Facebook while he was in the house and the only posts when he was in the hospital
“are these bad ones.” The Court stated that the prosecution needed to establish the
predicate of the face book posting and then defense counsel can make his
objection. (RR Vol. 4, p. 66-67)
Ms. Runnels testified that the defendant was born in Lufkin. She stated that
he had lived out of state, had worked for a food distribution company named
William George, and called himself “jboyheartofthanorth.” (RR Vol. 4, p. 67-68)
On cross examination, Ms. Runnels testified that she had three Facebook
pages, and that someone had posted a picture to her page before. Often she did not
log out of Facebook. The witness stated that she could go onto her son’s Facebook
page and type, email or post anything she wanted without his password. (RR Vol.
4, p. 68-70)
Jenna Dunton testified as an expert in DNA analysis. (RR Vol. 4, p. 73-96)
On voir dire examination by defense counsel, Ms. Dunton testified that it is not
18.
possible to determine how long DNA has been present on an item like the black
cloth or the swabs from the railroad tracks. When referring to DNA evidence, a
mixture means that there is more than one contributor or person to a DNA profile.
Ms. Dunton stated that she was submitted only one known sample in this case for
comparison. (RR Vol. 4, p. 74-75)
Jenna Dunton is a forensic scientist at the Texas Department of Public
Safety Crime Laboratory in Houston (RR Vol. 4, p. 76-78) Ms. Dunton then
explained how DNA samples were extracted from evidence samples and
summarized the analytical process.(RR Vol. 4, p. 79-80) State’s Exhibit 15, a
forensic biology laboratory report, is the first report that is issued in a DNA case
where an analyst screens the evidence and decides what can be forwarded on for
DNA analysis, was admitted. (RR Vol. 4, p. 82-84) State’s Exhibit 15 indicated
that a black cloth, swabs from the railroad track, and buccal swabs were received
by the lab from LPD. The witness described the storage and tracking of samples
once received by the lab. (RR Vol. 4, p. 84-85) With regards to the sputum sample
found on the railroad tracks, Ms. Dunton testified that the defendant could not be
excluded as a contributor of the profile, and to a reasonable degree of scientific
certainty, the defendant is the source. (RR Vol. 4, p. 86-88) Ms. Dunton testified
that the DNA profile from the black rag/cloth was consistent with a mixture and
that the defendant cannot be excluded as a contributor to the profile, but there was
an unknown portion of this profile that could potentially be compared to at least
one other contributor. (RR Vol. 4, p. 88) State’s Exhibit 16, the DNA laboratory
report that she prepared and substantially sets forth these findings, was admitted.
(RR Vol. 4, p. 89-90) Ms. Dunton testified that she was unaware of any scientific
studies, findings or conclusions showing that the presence of a petroleum
19.
accelerant would impair the validity of her analysis. She stated that the presence of
such an accelerant may make it more difficult to obtain a profile but would not
negate any profile that was obtained. (RR Vol. 4, p. 90)
On cross examination, Ms. Dunton testified that it was not possible for her to
determine how long DNA had been on a particular object. The witness stated that
many variables were involved in transferring DNA to the black cloth, including
how long he touched it. She stated that certain people shed DNA more than others.
(RR Vol. 4, p. 92) The witness testified that the cloth had DNA from at least two
people, but could have been more than two people. She was not asked to compare
the DNA profile to anyone other than the defendant. Ms. Dunton stated that it is
possible to have tested a cigarette lighter, a gas can, a cigarette butt, plywood, or
newspaper for DNA. If an item had been exposed to fire it may have been more
difficult to obtain DNA from the item, but it is still possible. (RR Vol. 4, p. 93-96)
During a bench conference, defense counsel stated that he had reviewed the
redacted booking sheet. (RR Vol. 97-98) Defense counsel informed the court that
he was going to object to admittance of the booking sheet due to being more
prejudicial than probative and should be excluded under Rule 403. The prosecution
stated that as soon as the defendant was arrested the fires stopped and it isn’t
prejudicial because they were excising out information regarding the charge. The
Court ruled that they would allow the exhibit. (RR Vol. 4, p. 98)
Chad Hooper is the jail administrator for Angelina County. (RR Vol. 4, p.
99-103) His duties include the general running of the facility, including the
booking process, the release process, property, discipline, grievances, inmate
issues, employees and staff. (RR Vol. 4, p. 99) A booking sheet contains all of the
information on the arrestee, including name, sex, race, his personal property, his
charges, and marital status. They prepare a booking sheet for everyone that is
20.
arrested. (RR Vol. 4, p. 100) State’s Exhibit 17, a booking sheet for the defendant
dated November 15, 2012, was offered. Defense counsel objected citing his
previous objection. The Court overruled defense counsel’s objection and admitted
State’s Exhibit 17. The booking sheet noted the defendant had three lighters in his
possession upon arrest. (RR Vol. 4, p. 101-102)
Brenda Jones Runnels was recalled. (RR Vol. 4, p. 103-106) The witness
viewed a printout of the defendant’s Facebook page that included a picture taken at
the hospital. (RR Vol. 4, p. 105)
LaTonya Siggers knows the defendant. (RR Vol. 5, p. 8-14) The witness
recalled that she was with the defendant early one morning of the fires, while it
was still dark. Defendant left her to go over to O’Quinn Street for about five to ten
minutes. He did not specify what he was doing. (RR Vol. 5, p. 9) She believed he
was on a bicycle. She wasn’t sure if that was the same day that the 906 O’Quinn
house almost caught fire, but the Keltys fire was later that day. Ms. Siggers
testified that the defendant was at his mother’s house at the time of the Keltys fire.
She saw fire trucks in the daytime. (RR Vol. 5, p. 10) When they saw the fire
trucks, the defendant asked her to ride down there to see what was going on and let
him know. The defendant asked her a lot of questions, but they were standing
together and the defendant did not go see the fire. After she went to look at the fire
trucks, she told the defendant that the house on Carver and Keltys was on fire and
they left. He went to his mother’s house which is on the other end of Keltys. (RR
Vol. 5, p. 11) She had some criminal history, being a state jail felony burglary in
2000. (RR Vol. 5, p. 12)
On cross examination, Ms. Siggers testified that on the morning of the
Keltys fire, she was riding a bicycle, but when the police saw her she was not
21.
riding a bicycle, that one of the police officers knew her, so she thought he
assumed that she was the one that started the fire. She stated that she and a couple
of more people walked up to the fire. (RR Vol. 5, p. 13)
On redirect examination, Ms. Siggers stated that the bicycle she was riding
was the defendant’s mother’s bicycle and the same one the defendant used to ride
down to O’Quinn. (RR Vol. 5, p. 13-14)
Evelyn Hamilton was the defendant’s girlfriend for five years. (RR Vol. 5, p.
14-20) Ms. Hamilton testified that she and defendant had been at Lanzy’s bar
immediately prior to those fires. (RR Vol. 5, p. 15) The defendant met her at the
bar and appeared to be acting normally. The witness stated that after two drinks he
started acting “crazy”, not like himself. She left the club, but received a phone call
asking for her to pick up the defendant. When she returned to the club, she did not
see him at first, and when she did find him he was in an abandoned house,
unclothed, except his boxers, and had hit a wall, breaking his finger. Ms. Hamilton
testified that the defendant then started running down the street, so she called the
defendant’s brother. The defendant’s brother, mother and herself took the
defendant to the hospital. She stayed at the hospital until she was told that
“somebody had put something in his drink and they like to have given him an
overdose.” Then she left and returned the next day. She did not see the defendant
post anything to Facebook with his phone while he was in the hospital. Ms.
Hamilton testified that she looked at her Facebook page after she returned home
and saw posts from the defendant. She was unaware of any photographs taken of
the defendant at the hospital. (RR Vol. 5, p. 16-18) Ms. Hamilton viewed State’s
Exhibit 24D, being a picture of the defendant, apparently taken at the hospital, but
she did not know who had taken the picture. She had heard of the defendant’s user
22.
name “jboyheartofthanorth”, but did not know whether he used it as his e-mail
address. She stated that she had been convicted of tampering with evidence the
previous year. (RR Vol. 5, p. 19-20)
Steve McCool was recalled. (RR Vol. 5, p. 24-61) Mr. McCool testified that
he was the lead investigator on this case, and that he spoke with many people in the
neighborhood, including the defendant. When he spoke with the defendant, he
wasn’t considered to be a suspect and appeared to be “in possession of his
faculties.” (RR Vol. 5, p. 24) Mr. McCool stated that he was not able to verify any
alibi that the defendant had given. (RR Vol. 5, p. 25) Almost all of the interviews
with the people in the neighborhood were recorded and then transcribed. In his
experience, he had not ever heard of six accidental fires in a 48 hour period in one
neighborhood. After the defendant was arrested, there were no additional fires, and
then several months passed before an accidental fire occurred in that area. (RR
Vol. 5, p. 26) Mr. McCool viewed State’s Exhibits 19A through 19F, photographs
of the defendant at the time of his arrest and interview at the LPD, were offered.
State’s Exhibits 19B through 19E were admitted. State’s Exhibits 19A and 19F
were excluded by the Court after defense counsel objection that those photographs
of the defendant in handcuffs were prejudicial and the prejudice would outweigh
the probative value since they unfairly suggested guilt. (RR Vol. 5, p. 27-28) Mr.
McCool had observed a blue bicycle at the defendant’s residence once when he
was speaking with the defendant between fires. Mr. McCool observed State’s
Exhibit 1 and stated that the six stickers on the exhibit accurately represented the
locations of the fires. (RR Vol. 5, p. 29) State’s Exhibit 1, a map of the fire
locations, was admitted. (RR Vol. 5, p. 30)
Mr. McCool testified that attempts were made to see if any fingerprints were
found on the cigarette lighter, two gas caps found at 906 O’Quinn, a piece of paper
23.
wedged in the door at 813 Keltys, and a piece of paper at 714 Cottonbelt, but none
were found. The lighter fluid can found at 1401 Keltys was tested for DNA testing
with no result. Mr. McCool explained that there are different types of lighter fluid,
such as charcoal lighter fluid and cigarette lighter fluid. Charcoal lighter fluid is
designed specifically to absorb into the wood or the charcoal and assist in igniting
the material and cigarette lighter fluid evaporates quickly and would not be as
effective at catching a piece of wood on fire. (RR Vol. 5, p. 32-35) State’s Exhibit
22, hospital records for the defendant immediately prior to the fires, was admitted.
Mr. McCool testified that he considered suspects other than the defendant,
including Ms. Siggers. (RR Vol. 5, p. 36-37) Mr. McCool suspected Ms. Siggers
may have been present at the Owens’ Club and Cottonbelt fires. He considered her
alibis for the remaining fires were sufficient and was confident that she had no
involvement. The witness stated that if he recalled correctly, the defendant also
said that she was at his house during the time of the Owens’ Club and Cottonbelt
fires. (RR Vol. 5, p. 38) Mr. McCool viewed State’s Exhibit 25, the defendant’s
Facebook page that he printed. (RR Vol. 5, p. 39) State’s Exhibit 23, Yahoo
records for e-mail address jboyofthanorth@yahoo.com, were admitted. (RR Vol. 5,
p. 41) Mr. McCool testified that this e-mail address is the same that is linked to the
defendant’s Facebook page. (RR Vol. 5, p. 42) Mr. McCool viewed State’s
Exhibits 24A through 24I, pictures off of the defendant’s Facebook page. Some of
the photographs appear to be selfies. At least one of the photographs was taken
immediately preceding the days the fires occurred. Prosecution offered State’s
Exhibit 25. (RR Vol. 5, p. 43)
During bench conference, defense counsel objected that State’s Exhibit had
not been satisfactorily authenticated under Rule 901. Case law has stated that it is
not enough that evidence or testimony shows that a printout “comes from a
24.
Facebook page or social media site registered to someone or is under their name.
There has to be other circumstances. The case the Court’s heard is that other
people can have access to a Facebook page. His mother even testified that someone
has gone under her Facebook page and posted some other things. To satisfy the
predicate, I believe you would have to have some evidence about it being exclusive
access to the computer or from the site that was used to post the information. In
that absence, Rule 901 is unsatisfied.” The Court ruled that proper predicate had
been established, overruled defense counsel’s objection, and admitted State’s
Exhibit 25. (RR Vol. 5, p. 44) Defense counsel requested a running objection to all
references to the material which the Court noted. State’s Exhibits 25A through
25C, presumably printouts of defendant’s Facebook page, also being referred to as
25, were admitted and objection noted. (RR Vol. 5, p. 45)
Mr. McCool viewed State’s Exhibits 25A through 25C, stated that these
were printouts of defendant’s Facebook page, and dated November 11, 2012, the
date the defendant was in the hospital. Mr. McCool read from State’s Exhibit 25A,
a posting under defendant’s name being “No tell your brother I’m ready to put a
match to Lufkin tx and watch this muthafucka burn down su wuu biz.” State’s
Exhibit 25B included another posting on that same date saying “Enjoy a peaceful
night get plenty of sleep because after tonight some of you will see heaven the rest
of you go burn ya go burn slow.” State’s Exhibit 25C included a third posting on
the same date by defendant saying “I’m alive and all you muthafucka who want me
dead you go die before me one by one lord forgive me for my sins.” Mr. McCool
stated that he interviewed at least 35 people, and multiple people told him to look
at the defendant’s Facebook page. Defense counsel objected, and the Court
sustained. Defense counsel asked the Court to instruct the jury to disregard. The
25.
Court instructed the jury to disregard the questions and answers regarding
interviewees who told Mr. McCool to look at defendant’s Facebook page. Defense
counsel moved for a mistrial, which the Court denied. (RR Vol. 5, p. 46-48)
On cross examination, Mr. McCool testified that the cigarette lighter that
was collected as evidence related to the O’Quinn Street fire was not tested for
DNA analysis. The witness stated that the lighter fluid can was not tested for
fingerprints because they did not want to compromise any potential DNA on the
can. The floor mat collected at Owens’ Club found on the roof that was on fire was
not submitted for DNA analysis. A piece of paper sack that had been stuffed in the
doorway and set on fire at Owens’ Club was not submitted for DNA analysis, and
there was not enough material to submit for fingerprinting. The tire that was set up
against the house at 906 O’Quinn was not submitted for DNA analysis. Mr.
McCool testified that neither of the gas caps from that location were submitted for
DNA analysis, because he felt that the caps would not effectively collect enough
DNA to justify sending them to a lab. Mr. McCool stated that he actually
determines the degree of significance and probability that is will actually contain
evidence, not the lab. (RR Vol. 5, p. 49-54) Mr. McCool stated that he interviewed
the defendant at his residence at 10:32 a.m. on November 14, 2012, after the first
three fires. At the time of the interview, he was dressed in his official uniform. (RR
Vol. 5, p. 54-56) The witness testified that the distance between Lanzy’s Bar and
Cottonbelt, based on the map, is about five blocks. He did not walk the distance.
Lanzy’s fire occurred at approximately 6:31 a.m., the Cottonbelt fire was
discovered at approximately 6:50 a.m., and the 813 Keltys fire was discovered at
approximately 6:30 a.m. (RR Vol. 5, p. 57-58) Regarding Ms. Siggers, the witness
checked out where she was during the fires primarily through statements made by
people. Mr. McCool stated that he didn’t really recall who he spoke with regarding
26.
Ms. Siggers nor whether any of them testified in court. (RR Vol. 5, p. 59-60) Mr.
McCool testified that he did not obtain a DNA sample from Ms. Siggers, although
the DNA profile showed more than one person. (RR Vol. 5, p. 61) The State and
the defense rested. (RR Vol. 5, p. 61-62)
At bench conference, defense counsel informed the court that he planned to
make a motion for a directed verdict regarding count four, the Wilson Street fire.
The basis for his motion was that the State did not prove that the fire was set
intentionally. Fire Marshall McCool testified that the fire was suspicious, and it
was more likely than not intentionally set. Additionally, there was no physical
evidence of any kind connecting the defendant to this fire. The prosecution
responded that Mr. McCool testified that this fire was sandwiched between other
fires that were intentionally set and that the odds of having all of these accidental
fires in a short time span was extremely unlikely. Additionally, the modus operandi
was similar in time. Mr. McCool had testified that the reason this fire was
suspicious was simply because it was sandwiched between the others. The Court
advised the prosecution to exclude count four. (RR Vol. 5, p. 63-65) After
discussion, the Court stated that it would inform the jury that count four would not
be presented to them and it is not their concern as to the reason. Defense counsel
agreed to said instruction. (RR Vol. 5, p. 67)
During the charge conference, defense counsel objected to the entire charge
being submitted to the jury based on insufficiency of the evidence. The Court
overruled the objection except for count four. (RR Vol. 5, p. 70)
The court read the charge to the jury. (RR Vol. 5, p. 72-84) During the
prosecution’s closing arguments, the prosecution stated that Mr. Baski Davis had
testified that he saw someone riding a bicycle but did not know who it was. Then
Mr. McCool testified that Mr. Davis had told him that it was Stanford Jones.
27.
Defense counsel objected to the characterization as the evidence was admitted for
impeachment purposes only. The Court reiterated that the evidence was admitted
for impeachment purposes only. The prosecution responded that when Mr. Davis
stated that the person was not the defendant, he was not being credible. (RR Vol. 5,
p. 92-93) After closing arguments, the jury deliberated. (RR Vol. 5, p. 114-118)
The jury returned a verdict of guilty on count one, arson of a habitation, of guilty
on count two, arson of a building, of not guilty on count three, arson of a vehicle,
of guilty on count five, arson of a habitation, and of not guilty on count six, arson
of a building. (RR Vol. 5, p. 119) The court recessed. (RR Vol. 5, p. 122)
A sentencing hearing was held on May 14, 2015. (Vol. 6, p. 4) The
prosecution stated that he would not call any witnesses and requested that the court
rely on the presentence investigation report. (RR Vol. 6, p. 4) Defense counsel
called Brenda Runnels, the defendant’s mother. (RR Vol. 6, p. 5-11) Ms. Runnels
testified that she was involved in obtaining nearly 80 letters in support of the
defendant from people in the community that were willing and able to provide
them. The witness stated that the defendant has a big support system in the
community and will support him no matter what happens. (RR Vol. 6, p. 6-7) Ms.
Runnels testified that the defendant had changed within the last two years and she
believed he “got his head on straight.” (RR Vol. 6, p. 8) She reiterated she had
never seen her son in the condition he was in when he went to the hospital. (RR
Vol. 6, p. 9)
On bench examination, the Court questioned Bonita Barlow, the probation
officer that prepared the presentence investigation report. (RR Vol. 6, p. 11-13)
Ms. Barlow testified that the defendant had told her he had made a career out of
selling drugs until sentenced to a TDJC facility in 2012. He had some work history
at a variety of places, and that the variability was partially due to being
28.
incarcerated. The witness testified that he had been incarcerated prior to trial due to
a revocation of probation. (RR Vol. 6, p. 11-12) Ms. Barlow stated that the
defendant had gone to treatment and that he had not displayed any remorse for the
victims in this case. (RR Vol. 6, p. 13)
The trial court sentenced appellant to confinement in the Texas Department
of Criminal Justice System Institutional Division for a period of 20 years. (RR Vol.
6, p. 16)
SUMMARY OF THE ARGUMENT
The evidence is legally insufficient to prove counts 1, 2 and 5 of arson as
alleged in the indictment. The appellant argues the jury’s verdict of guilt was
improper and the judgment should be reversed and the appellant acquitted. There
were no eyewitnesses to any of the arsons and the only DNA among several
possibilities was a cloth/rag not shown to be used in the crimes to contain
appellants and one other parties DNA. Secondly, sputum found some distance from
the fires was found to have the appellant’s DNA but not at the scene of any crime.
These two items were not shown to be connected to the offenses. Additionally,
improper hearsay was allowed in respect to impermissible impeachment evidence
regarding two witnesses. Lastly, the trial court allowed unauthenticated Face book
evidence which cumulatively resulted in conviction of the appellant on unreliable
29.
evidence. The inconsistency and conflict of testimony fails to provide sufficient
testimony which is legally sufficient for the basis of the trial court’s finding of
guilt.
ARGUMENT
Issue 1
The evidence is legally insufficient to prove the three offenses of Arson
as alleged in count I, II and V in the indictment.
Appellant argues that the evidence is legally insufficient to support the
finding of guilt for three counts of the arson as the convictions are not supported by
the evidence. The State’s indictment is pursuant to
Tex. Penal Code Ann. § 28.02 (West 2011) Sec. 28.02. ARSON.
(a) A person commits an offense if the person starts a fire, regardless of
whether the fire continues after ignition, or causes an explosion with
intent to destroy or damage:
(1) any vegetation, fence, or structure on open-space land;
or
(2) any building, habitation, or vehicle:
(A) knowing that it is within the limits of an
incorporated city or town;
(a-2) A person commits an offense if the person intentionally
starts a fire or causes an explosion and in so doing:
(1) recklessly damages or destroys a building belonging to
another; or
(d) An offense under Subsection (a) is a felony of the second
degree, except that the offense is a felony of the first degree if it is shown
on the trial of the offense that:
((2) the property intended to be damaged or destroyed by
the actor was a habitation or a place of assembly or worship.
30.
Appellant is aware that in a legal sufficiency review, this Honorable Court
will examine 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
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979). Appellant recognizes the jury is the sole judge of the credibility and weight
to be attached to the testimony of witnesses. Thomas v. State, 444 S.W.3d 4, 8
(Tex. Crim. App. 2014) (citing Jackson, 443 U.S. at 319). Appellant understands
this court will give full deference to the jury's responsibility to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). Further, appellant understands if the record contains conflicting
inferences, this court will presume the jury resolved such conflicts in favor of the
verdict and defer to that resolution. Thomas, 444 S.W.3d at 8.
"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.
Appellant argues that the evidence in the instant matter is insufficient
because “the record contains a mere modicum of evidence probative of an element
of the offense.” Gonzalez v. State, 337 S.W.3d 473, 479 (Tex. App.-Houston [1
31.
Dist.] 2011) Appellant recognizes this Honorable Court will give deference to the
responsibility of the fact finder to fairly resolve conflicts in testimony, weigh
evidence, and draw reasonable inferences from the facts. Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). However, Appellant asks this Court to:
“to ensure that the evidence presented actually supports a conclusion that the
defendant committed; the criminal offenses of arson in counts I, II and V and of
which he is accused. Williams, supra.
The sufficiency of the evidence is measured by the elements of the offense
as defined in a hypothetically correct jury charge, which is one that accurately sets
out the law, is authorized by the indictment, does not unnecessarily increase the
State's burden of proof or unnecessarily restrict the State's theories of liability, and
adequately describes the particular offense for which the defendant was tried.
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). If an appellate court
finds the evidence insufficient under this standard, it must reverse the judgment
and enter an order of acquittal. Gonzalez, 337 S.W.3d at 479.supra.
The State failed to prove as reflected in the indictment regarding counts 1,
2, 5 that the appellant committed the offenses of arson. (RR Vol. 3) On appeal,
Appellant argues there is legally insufficient evidence he committed arson as
required to convict him for the offenses of arson.
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In the instant matter there were two items of physical evidence linked to
the appellant. The state introduced a rag/cloth with DNA and sputum with DNA
over objection and additionally the state offered impeachment testimony and face
book postings. Each of these will be considered. This evidence is circumstantial as
appellant argues the state had no direct evidence. The issue here is whether the
circumstantial evidence is “as probative and sufficient in establishing the guilt of
the appellant. Appellant is aware circumstantial evidence alone can be sufficient to
establish guilt." Hooper v. State, supra.
Officer Alexander did not see appellant in the area during the course of his
investigation in regard to the 907 O’Quinn fire. (RR Vol. 3 p. 39-40) Officer
Nash in regard to 1401 Keltys discovered the house had been vacant some time.
(RR Vol. 3 p. 40) The Officer observed Ms. Siggers and not the appellant on a
bicycle, as she rode over on her bike and left the area fast. RR Vol. 3 p.51) James
Davis could not identify a person in the area on November 13, 2012.( RR Vol. 3 p.
54-58) He denied suggesting it was the appellant to fire chief McCool or to
confirm he said he saw a man riding a bike wearing a hoodie. (RR Vol. 3 p. 54-58)
He did not recall identifying appellant as being a former classmate or trying to help
officer McCool. (RR Vol. 3 p. 60) Officer McCool found a rag at 906 O’ Quinn
with appellants and another person’s DNA. (RR Vol. 3 p. 77-80) A bicycle found
at appellant’s mother’s house could not be matched to bicycle tracks at the scene.
(RR Vol. 3 p.95-96) Mr. McCool testified that he found some bicycle tracks at the
906 O’Quinn scene. He had seen a bicycle at defendant’s and defendant’s mother’s
residence. However, he was unable to match the tires of the bicycle and bicycle
tracks. (RR Vol. 3, p. 96) Officer Nash stated that Officer Davis stopped and
33.
spoke with LaTonya Siggers who was riding a bicycle down the road. (RR Vol. 3,
p. 51)
Michelle Dupree testified she is a good friend with defendant. (RR Vol. 3, p.
120-126) On the morning of November 15, 2012, she recalled dropping the
defendant off at his home around 7:15 to 7:30 a.m., and he went to the backyard,
she believed to get in the house. She then went home to change clothes prior to
going to class at Angelina College. She remembered it was around that time
because she was five minutes late to class and was reprimanded for being late. She
did not recall telling Mr. McCool it was around 6:00 or 6:15 a.m. (RR Vol. 3, p.
123-125) Defendant left her to go over to O’Quinn Street for about five to ten
minutes. He did not specify what he was doing. (RR Vol. 5, p. 9) She believed he
was on a bicycle. She wasn’t sure if that was the same day that the 906 O’Quinn
house almost caught fire, but the Keltys fire was later that day. Ms. Siggers
testified that the defendant was at his mother’s house at the time of the Keltys fire.
She saw fire trucks in the daytime. (RR Vol. 5, p. 10) When they saw the fire
trucks, the defendant asked her to ride down there to see what was going on and let
him know. The defendant asked her a lot of questions, but they were standing
together and the defendant did not go see the fire. After she went to look at the fire
trucks, she told the defendant that the house on Carver and Keltys was on fire and
they left. He went to his mother’s house which is on the other end of Keltys. (RR
Vol. 5, p. 11).
Mr. Owens did not see anybody set the fires. (RR Vol. 4, p. 13-17) Officer
Abbot identified some phlegm that appeared fresh, and directed that a swab be
collected. The swab was entered into evidence and transported to DPS for analysis.
(RR Vol. 4, p. 29-32) Ms. Dunton testified that the defendant could not be
excluded as a contributor of the profile, and to a reasonable degree of scientific
34.
certainty, the defendant is the source. (RR Vol. 4, p. 86-88) Ms. Dunton testified
that the DNA profile from the black cloth was consistent with a mixture and that
the defendant cannot be excluded as a contributor to the profile, but there was an
unknown portion of this profile that could potentially be compared to at least one
other contributor. (RR Vol. 4, p. 88-90)On cross examination, Ms. Dunton testified
that it was not possible for her to determine how long DNA had been on a
particular object. The witness stated that many variables were involved in
transferring DNA to the black cloth, including how long he touched it. She stated
that certain people shed DNA more than others. (RR Vol. 4, p. 92) The witness
testified that the cloth had DNA from at least two people, but could have been
more than two people. She was not asked to compare the DNA profile to anyone
other than the defendant. Ms. Dunton stated that it is possible to have tested a
cigarette lighter, a gas can, a cigarette butt, plywood, or newspaper for DNA.
In regard to the face book evidence Ms. Hamilton did not see the defendant
post anything to Facebook with his phone while he was in the hospital. Ms.
Hamilton testified that she looked at her Facebook page after she returned home
and saw posts from the defendant. She was unaware of any photographs taken of
the defendant at the hospital. (RR Vol. 5, p. 16-18) Ms. Hamilton viewed State’s
Exhibit 24D, being a picture of the defendant, apparently taken at the hospital, but
she did not know who had taken the picture. She had heard of the defendant’s user
name jboyheartofthanorth, but did not know whether he used it as his e-mail
address. She stated that she had been convicted of tampering with evidence the
previous year. (RR Vol. 5, p. 19-20)
Mr. McCool testified that he considered suspects other than the defendant,
including Ms. Siggers. (RR Vol. 5, p. 36-37) Mr. McCool suspected Ms. Siggers
35.
may have been present at the Owens’ Club and Cottonbelt fires. He considered
her alibis for the remaining fires were sufficient and was confident that she had no
involvement. The witness stated that if he recalled correctly, the defendant also
said that she was at his house during the time of the Owens’ Club and Cottonbelt
fires. (RR Vol. 5, p. 38) Mr. McCool viewed State’s Exhibit 25, the defendant’s
Facebook page that he printed. (RR Vol. 5, p. 39) State’s Exhibit 23, Yahoo
records for e-mail address jboyofthanorth@yahoo.com, were admitted. (RR Vol. 5,
p. 41) Mr. McCool testified that this e-mail address is the same that is linked to the
defendant’s Facebook page. (RR Vol. 5, p. 42) Mr. McCool viewed State’s
Exhibits 24A through 24I, pictures off of the defendant’s Facebook page. Some of
the photographs appear to be selfies. At least one of the photographs was taken
immediately preceding the days the fires occurred. Prosecution offered State’s
Exhibit 25. (RR Vol. 5, p. 43)
The face book postings could obviously be considered damning evidence.
Over defense objection and argument postings were allowed into evidence.
Appellant addresses this as issue 3. Mr. McCool read from State’s Exhibit 25A, a
posting under defendant’s name being “No tell your brother im ready to put a
match to Lufkin tx and watch this muthafucka burn down su wuu biz.” State’s
Exhibit 25B included another posting on that same date saying “Enjoy a peaceful
night get plenty of sleep because after tonight some of you will see heaven the rest
of you go burn ya go burn slow.” State’s Exhibit 25C included a third posting on
the same date by defendant saying “I’m alive and all you muthafucka who want me
dead you go die before me one by one lord forgive me for my sins.” Appellant
argues without this allowed evidence the State had less than a scintilla of evidence
to connect appellant as a suspect of the arsons’. Being unauthenticated as argued
appellant argues this evidence should not have been considered. This will be
36.
addressed in issue 3.
In addition several items were not subjected to DNA testing. Ms. Dunton
stated that it is possible to have tested a cigarette lighter, a gas can, a cigarette butt,
plywood, or newspaper for DNA. The floor mat collected at Owens’ Club found on
the roof that was on fire was not submitted for DNA analysis. A piece of paper
sack that had been stuffed in the doorway and set on fire at Owens’ Club was not
submitted for DNA analysis. The tire that was set up against the house at 906
O’Quinn was not submitted for DNA analysis. Mr. McCool testified that neither of
the gas caps from that location was submitted for DNA analysis. (RR Vol. 5, p. 49-
54) Mr. McCool stated that he interviewed the defendant at his residence at 10:32
a.m. on November 14, 2012, after the first three fires. (RR Vol. 5, p. 54-56) The
witness testified that the distance between Lanzy’s Bar and Cottonbelt, based on
the map, is about five blocks. He did not walk the distance. Lanzy’s fire occurred
at approximately 6:31 a.m., the Cottonbelt fire was discovered at approximately
6:50 a.m., and the 813 Keltys fire was discovered at approximately 6:30 a.m. (RR
Vol. 5, p. 57-58) Regarding Ms. Siggers, the witness checked out where she was
during the fires primarily through statements made by people. Mr. McCool stated
that he didn’t really recall who he spoke with regarding Ms. Siggers nor whether
any of them testified in court. (RR Vol. 5, p. 59-60) Mr. McCool testified that he
did not obtain a DNA sample from Ms. Siggers, although the DNA profile showed
more than one person. (RR Vol. 5, p. 61)
Appellant argues there obviously was a lack of evidence as recognized by
the jury in counts3 and 6. Appellant argues no rational trier of fact could determine
a consistent set of facts of which could be believed beyond a reasonable doubt.
Thus, pursuant to Williams v. State, Gonzales v. State and Jackson v. Virginia,
supra, appellant argues there is a “mere modicum’ of evidence probative of the
37.
element of the direction of the discharge as well hereinafter be addressed.
Appellant argues the jury could not as a rational fact finder have found the
elements of the offense as alleged in the indictment to have been shown beyond a
reasonable doubt. Appellant argues the witnesses’ testimony is inconsistent and no
one actually sees the appellant start a fire. At best the testimony may show
appellant was at some time near the location of the fires by virtue of his sputum
and a cloth/rag found. However, the sputum was located a distance away and the
cloth/rag was not shown to have been touched exclusively by the appellant.
Appellant argues the wrongful admission of the Facebook evidence highly
prejudiced his chances of a fair trial. In the instant matter when considering “the
evidence in the light most favorable to the prosecution,” appellant argues the
evidence (as reviewed above) is insufficient to establish that appellant committed
arson and that the State provided sufficient evidence to support the jury’s finding
of guilt. Jackson, 443 U.S. at 319; supra. Appellant realizes, “No certain quantity
of corroborating evidence is required. Malone v. State, 253 S.W.3d 253, 257 (Tex.
Crim. App. 2008) Appellant argues as such this Honorable court must
“ensure that the evidence presented actually supports a conclusion that the
defendant committed the crime. (as alleged) Williams v. State, supra. Appellant
argues for this Honorable Court to reverse the finding of guilt and acquit the
Appellant.
Issue 2
The trial court erred in permitting impermissible impeachment evidence.
The trial court erred in allowing hearsay evidence as impeachment evidence
of Mr. Davis and Ms. Hamilton regarding 613(a) of the Texas Rules of Evidence.
The trial court agreed it should have limited Mr. McCool’s statements regarding
38.
his discussion with Mr. Davis to impeachment purposes. (RR Vol. 3, p. 98) James
“Baski” Davis, testified that he had lived in Lufkin all of his life and identified the
defendant as Stanford Jones. (RR Vol. 3, p. 54-62) He remembered the fire, but he
wasn’t with and did not see the defendant. He got up around 4 a.m. and saw
somebody, wearing a hood, riding a bike, coming off of Keltys behind the house.
When he got off work that evening, the house was gone. He had told the Fire
Marshal, Steve McCool, about seeing someone on a bicycle. (RR Vol. 3, p. 57-58)
The defense attorney objected to the witness testifying to what he had said on
another occasion outside of court as being hearsay, unless being offered for a
limited purpose. The court allowed the testimony for the limited purpose of
impeaching the credibility of the witness. (RR Vol. 3, p. 58-59) Mr. Davis testified
that he had spoken with the Fire Marshall in person and had viewed a photograph
of more than one person. Mr. Davis stated that he did not recall telling the Fire
Marshall who was on the bicycle. He did recall telling the Fire Marshall that the
defendant was a classmate. The witness testified that he did not know why the Fire
Marshall was talking to him and that he did not recall helping him with the
investigation. (RR Vol. 3, p. 60-62) The prosecutor asked Mr. McCool what Mr.
Davis had told him. (RR Vol. 3, p. 82)
The defense attorney objected on the basis of hearsay and violation of the
Sixth Amendment right to confrontation to admit that for the truth of the matter
asserted. (RR Vol. 3, p. 82)
During a bench conference, defense counsel stated that the prior statement
by Mr. Davis was being offered for all purposes, not just impeachment. The court
noted defense counsel’s objection due to hearsay, and overruled the objection due
to violation of the right to confrontation. (RR Vol. 3, p. 83-86)
Mr. McCool stated that when he called Mr. Davis, Mr. Davis stated that he
39.
had some information. (RR Vol. 3, p. 87) Mr. McCool met Mr. Davis who said that
he saw a man on a blue bicycle go behind the house that caught fire. Mr. Davis
viewed a picture produced by Mr. McCool of the defendant taken at an LPD
interview room and identified the person in the picture as the defendant. (RR Vol.
3, p. 88) The witness stated that Mr. Davis said that the defendant was the person
riding the bicycle and that they had been classmates. Mr. Davis also told him what
the bicyclist was wearing, his build, and told him to look at his Facebook page.
(RR Vol. 3, p. 89) Defense counsel objected and asked that the jury be instructed
to disregard the last statement. The Court instructed the jury to disregard the last
question and response. Defense counsel moved for a mistrial which the court
denied. (RR Vol. 3, p. 89) ) Secondly, Michelle Dupree testified she is a good
friend with defendant. (RR Vol. 3, p. 120-126) On the morning of November 15,
2012, she recalled dropping the defendant off at his home around 7:15 to 7:30 a.m.,
and he went to the backyard, she believed to get in the house. She then went home
to change clothes prior to going to class at Angelina College. She remembered it
was around that time because she was five minutes late to class and was
reprimanded for being late. She did not recall telling Mr. McCool it was around
6:00 or 6:15 a.m. (RR Vol. 3, p. 123-125)
Appellant argues on appeal that the hearsay statements of Officer McCool
were not admissible to show as a prior inconsistent statement of Mr. James Davis
or Ms. Hamilton. Appellant argues the State failed to lay the proper foundation and
that the statement is not inconsistent with Mr. Davis’s trial testimony. The
appellant argues that the state failed to lay the proper foundation because the
witness simply could not remember what he said to Officer McCool. Ms. Hamilton
clarified her statement.
Appellant argues the trial court abused its discretion in allowing Mr.
40.
McCool’s testimony in both matters. Martinez v. State, 327 S.W.3d 727, 736 (Tex.
Crim. App. 2010). Appellant understands an abuse of discretion occurs only if the
decision is "so clearly wrong as to lie outside the zone within which reasonable
people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App.
2008); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on
reh'g). Appellant is not asking this court to substitute its own decision for that of
the trial court .Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003) Rule
613(a) of the Texas Rules of Evidence imposes three requirements to establish the
proper predicate or foundation for impeachment testimony: (1) identification ("the
time and place and the person to whom [the statement] was made"), (2) "the
contents of such statement," and (3) the witness "must be afforded an opportunity
to explain or deny such statement." TEX. R. EVID. 613(a); see Ellingsworth v.
State, 487 S.W.2d 108, 112 (Tex. Crim. App. 1972); Osteen v. State, 61 S.W.3d
90, 91 (Tex. App.—Waco 2001, no pet.). The plain language of Rule 613(a) does
not require the witness to deny the statement, it only provides that extraneous
evidence may not be admitted if "the witness unequivocally admits having made
such statement." TEX. R. EVID. 613(a). This did not occur in the instant matter as
shown above. Neither denied speaking to Officer McCool. Mr. Davis could not
remember and Ms. Hamilton explained her answer but neither admitted making the
statements attributed to them.
It does not appear the state laid its predicate by confronting either witness with
their alleged statements to Officer McCool and thus the officer’s testimony should
have been excluded. Rule 613(a) provides. If the impeaching party fails to lay a
proper predicate or foundation, the prior inconsistent statement should not be
41.
admitted. Moore v. State, 652 S.W.2d 411, 413 (Tex. Crim. App. 1983); Osteen v.
State, 61 S.W.3d 90, 91,supra.
Issue 3
The trial court erred in allowing face book prints which were not
properly authenticated.
Mr. McCool viewed State’s Exhibit 25, the defendant’s Facebook page that
he printed. (RR Vol. 5, p. 39) State’s Exhibit 23, Yahoo records for e-mail address
jboyofthanorth@yahoo.com, were admitted. (RR Vol. 5, p. 41) Mr. McCool
testified that this e-mail address is the same that is linked to the defendant’s
Facebook page. (RR Vol. 5, p. 42) Mr. McCool viewed State’s Exhibits 24A
through 24I, pictures off of the defendant’s Facebook page. Some of the
photographs appear to be selfies. At least one of the photographs was taken
immediately preceding the days the fires occurred. Prosecution offered State’s
Exhibit 25. (RR Vol. 5, p. 43)
Appellant argues the face book evidence was unauthenticated pursuant to Rule
901. The Court ruled that proper predicate had been established, overruled defense
counsel’s objection, and admitted State’s Exhibit 25. (RR Vol. 5, p. 44) Defense
counsel requested a running objection to all references to the material which the
Court noted. State’s Exhibits 25A through 25C, presumably printouts of
defendant’s Facebook page, also being referred to as 25, were admitted and
objection noted. (RR Vol. 5, p. 45)
.
Appellant understands “the issue of authentication arises when the relevancy
of any evidence depends upon its identity, source, or connection with a particular
person, place, thing, or event.'" Campbell v. State, 382 S.W.3d 545, 548-49 (Tex.
42.
App.-Austin 2012, no pet.) (quoting Shea v. State, 167 S.W.3d 98, 104 (Tex. App.-
Waco 2005, pet. ref'd)). "Evidence has no relevance if it is not authentically what
its proponent claims it to be." Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim.
App. 2012). Rule 901(a) of the Texas Rules of Evidence provides that for a party
to satisfy the requirement of authenticating or identifying an item of evidence, "the
proponent must produce evidence sufficient to support a finding that the item is
what the proponent claims it is." Tex. R. Evid. 901(a). Rule 901(b) includes a list
of evidence that satisfies this requirement, including testimony that an item is what
it is claimed to be and evidence of the "appearance, contents, substance, internal
patterns, or other distinctive characteristics of the item.
Mr. McCool viewed State’s Exhibits 25A through 25C, stated that these
were printouts of defendant’s Facebook page, and dated November 11, 2012, the
date the defendant was in the hospital. Mr. McCool read from State’s Exhibit 25A,
a posting under defendant’s name being “No tell your brother im ready to put a
match to Lufkin tx and watch this muthafucka burn down su wuu biz.” State’s
Exhibit 25B included another posting on that same date saying “Enjoy a peaceful
night get plenty of sleep because after tonight some of you will see heaven the rest
of you go burn ya go burn slow.” State’s Exhibit 25C included a third posting on
the same date by defendant saying “I’m alive and all you muthafucka who want me
dead you go die before me one by one lord forgive me for my sins.” Mr. McCool
stated that he interviewed at least 35 people, and multiple people told him to look
at the defendant’s Facebook page. Defense counsel objected, the Court sustained.
Defense counsel asked the Court to instruct the jury to disregard. The Court
instructed the jury to disregard the questions and answers regarding interviewees
who told Mr. McCool to look at defendant’s face book page. Defense counsel
43.
moved for a mistrial, which the Court denied. (RR Vol. 5, p. 46-48) Ms. Runnels
stated that, while in the hospital, the defendant talked on his phone some, but that
she did not see him using Facebook. (RR Vol. 4, p. 65) She stated that if there were
some behavior that she didn’t like, she would address that face-to-face, not through
Facebook. (RR Vol. 4, p. 66) The witness stated that she could go onto her son’s
Facebook page and type, email or post anything she wanted without his password.
(RR Vol. 4, p. 68-70)During a bench conference, defense counsel objected to
testimony regarding the content of the Facebook postings since there was an issue
about authentication that the Court had not ruled on as part of his motion in limine.
The Court stated that the prosecution needed to establish the predicate of the
Facebook posting and then defense counsel can make his objection. (RR Vol. 4, p.
66-67)
Ms. Hamilton did not see the defendant post anything to Facebook with his
phone while he was in the hospital. Ms. Hamilton testified that she looked at her
Facebook page after she returned home and saw posts from the defendant. She was
unaware of any photographs taken of the defendant at the hospital. (RR Vol. 5, p.
16-18) Ms. Hamilton viewed State’s Exhibit 24D, being a picture of the defendant,
apparently taken at the hospital, but she did not know who had taken the picture.
She had heard of the defendant’s user name jboyheartofthanorth, but did not know
whether he used it as his e-mail address. She stated that she had been convicted of
tampering with evidence the previous year. (RR Vol. 5, p. 19-20) Appellant
contends the trial court erred in admitting prints/photographs taken of his computer
screen depicting the face book statements he allegedly posted, because the prints
were not properly authenticated.
Although the content of the messages at issue purport to be messages
posted on a face book account bearing appellant’s name; the appellant’s mother
44.
testified anyone could post on the face book. Appellant argues there was not
sufficient circumstantial evidence such that a reasonable juror could have found
that the messages were authored and sent by appellant. Tienda v. State , 358
S.W.3d 633,supra. Therefore, appellant argues the improper admission of the
Facebook prints impermissibly prejudiced the appellant in receiving a fair trial and
cumulatively with the admission of the improper impeachment testimony as argued
previously as well as lack of direct evidence should result in appellants acquittal.
PRAYER
Appellant Stanford Jones Sr. argues that the decision of the jury is not
supported by legally sufficient evidence. Therefore, appellant asks that this
judgment be reversed and the appellant acquitted of counts I, 2 and 5 of Arson.
Further, appellant requests this Honorable Court to grant such other and further
relief to which Appellant is justly and equitably entitled.
Respectfully, Submitted:
/S/ John D. Reeves
JOHN D. REEVES
Attorney at Law
1007 Grant Ave.
Lufkin, Texas 75901
Phone: (936) 632-1609
Fax: (936) 632-1640
SBOT # 16723000
Email: tessabellus@yahoo.com
ATTORNEY FOR APPELLANT
45.
CERTIFICATE OF COMPLIANCE
I, John D. Reeves Counsel for appellant hereby certify that this brief exclusive of
the rule provisions that do not provide counting contains 14,472 words.
/S/ John D. Reeves
John D. Reeves
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Appellant’s
Brief on this 15th day of October has been forwarded to the State’s Counsel,
April-Ayers-Perez, Assistant District Attorney of Angelina County, by E filing
service .
/S/ John D. Reeves
John D. Reeves
46.