Michael Burrel v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00379-CR
Michael BURREL,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-6311
Honorable Maria Teresa Herr, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: March 24, 2004

AFFIRMED

A jury found appellant, Michael Burrel, guilty of attempted arson and assessed punishment at eight years confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Burrel argues the evidence is factually and legally insufficient to prove that he acted intentionally or knowingly. We disagree and affirm the trial court's judgment.

Factual Background

Early in the morning on July 2, 2002, Burrel began fighting with his live-in-girlfriend, Ernestine Owens. An altercation ensued involving Burrel, Owens, and Owen's adult son, Dominic Chase. Owens ran from the house to call the police. San Antonio Police Officer Eric Rubio responded to Owen's call and arrived at Owen's residence at approximately 5:30 a.m. Rubio observed items knocked over and a broken table, indicating possible signs of a fight. He testified that Owens told him she wanted Burrel to leave. Since Burrel was not there at that time, however, Rubio advised Owens to call the police again if he returned and caused further problems. Rubio left the residence at approximately 5:45 a.m.

Shortly thereafter Burrel returned with a rifle, and according to Chase, Burrel threatened to shoot Chase with it. Burrel approached the house and threw the rifle in through a window, ripping the screen. Chase testified that Burrel then went to his car and returned with a bag of marijuana that he began ripping open over the front porch and in through the open window as he exclaimed, "If I go to jail, you going to jail too." During this commotion, Owens called the police again.

Owens and Chase both testified that Burrel poured gas on the inside and outside of the house. Chase recounted that Burrel said, "I'm going to burn the house down." Owens testified that Burrel used the gasoline to destroy marijuana that was all over the porch and the inside of the house. In addition, she testified that Burrel is still her current boyfriend and that she did not want to testify against him. Chase, however, testified that Burrel was covering more than just the marijuana with the gasoline, and he believes that the police arrived just in time as Burrel was walking to his car where matches were later found.

San Antonio Police Officer Ronald Carnesi testified that he responded to a call concerning a man with a gun who was trying to start a fire at the same residence. Carnesi explained that when he arrived he found Burrel standing next to a car parked in the front yard, and he saw people on the porch yelling "that is him." As he exited his patrol car and approached Burrel's vehicle, Carnesi noted the strong smell of gasoline. Carnesi handcuffed Burrel and took him into custody. While placing Burrel in custody, Carnesi heard the woman on the porch (later identified as Owens) crying and yelling that "he went down the side of the house with the gas can" and that "he pointed a gun at us." Carnesi then asked her where the gun was and she kept yelling things such as "he tried to start the house on fire, he poured the gasoline on the front of the house, he was trying to start it on fire." Carnesi also smelled the strong smell of gasoline along the wooden porch attached to the house and along the side of the house where he noticed a gas can. As more officers began to arrive, Carnesi called for the fire department.

Shortly after Carnesi arrived on the scene, Officers McGibbons and Overton arrived. The officers testified that Owens and Chase were scared and upset. Owens and Chase told the officers that Burrel threw his gun into the house, retrieved a gas can, and then started pouring gasoline inside the front porch and inside a broken window. According to the officers, Owens and Chase also stated that Burrel had said he was going to burn the house down. The officers testified that Owens made statements at the scene such as "I knew that he was serious about setting the house on fire," and quoted Burrel when she said "I'm going to burn you out and I'm going to burn this bitch down." She attempted to minimize these statements at trial, however, by saying that she did not mean anything by them. After questioning Owens and Chase, the officers called in the arson detectives for further investigation.

Arson detective Anthony Guerrero arrived at the scene to search for the presence of an accelerant. He found a gasoline nozzle on the foot of the steps, a gasoline container on the side of the house, and gasoline on the front porch and inside the house near a broken window. Not only did he detect splash patterns of gasoline, but he also smelled the strong odor of gasoline as he investigated. In addition, Guerrero noticed wooden matches on the floorboard of Burrel's car. He recalled that Owens appeared frightened and that she told him that she wanted to make sure Burrel would not be back to retaliate against her.

Legal and Factual Sufficiency

On appeal Burrel challenges the legal and factual sufficiency of the evidence as to the required culpability for attempted arson. When reviewing the legal sufficiency of the evidence, the appellate court must view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998); Johnson v. State, 103 S.W.3d 463, 464 (Tex. App.-San Antonio 2003, no pet.). "A determination that the evidence is 'legally insufficient' means that the case should never have been submitted to the jury." Clewis v. State, 922 S.W.2d 126, 132-33 (Tex. Crim. App. 1996).

In reviewing the factual sufficiency of the evidence, the court of appeals must view "'all the evidence without the prism of 'in the light most favorable to the prosecution.' ... [and] set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.'" Clewis, 922 S.W.2d at 129 (quoting Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd, untimely filed)). An appellate court, however, must defer to a jury's findings and cannot reverse just because it disagrees with such findings. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). A finding of factual insufficiency may be made only where it is necessary to prevent a manifest injustice, and even then a detailed explanation of the finding must be provided. Id.; Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). After a neutral review of all of the evidence, both for and against the finding, the appellate court must determine if "the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11.

The State charged Burrel with the following:

Burrel . . . did then and there intentionally attempt to start a fire by pouring a flammable accelerant on and inside a structure, an act amounting to more than mere preparation that tended but failed to effect the commission of the offense of arson, having at the time the specific intent to commit the offense of arson, with intent to damage and destroy a HABITATION, knowing that the habitation was within the limits of the incorporated city of San Antonio.

The indictment tracks the language of Texas Penal Code section 28.02 for arson and section 15.01 for criminal attempt. Both Penal Code sections concerning arson and criminal attempt include the culpability states of "intent" and "knowing," which the Penal Code defines as:

A person acts . . . with intent . . . when it is his conscious objective or desire to engage in the conduct or cause the result. A person acts knowingly . . . when he is aware of the nature of his conduct or that the circumstances exist . . . when he is aware that his conduct is reasonably certain to cause the result.

Tex. Pen. Code Ann. 6.03(a), (b) (Vernon 2003).

Burrel contends the evidence is legally and factually insufficient to prove that he had the specific intent to commit the offense of arson. Burrel explains that there was no evidence presented of an attempt to ignite the gasoline. He refers to Owen's and Chase's testimony regarding the use of the gasoline to destroy the marijuana. Further, Burrel notes that only one witness, Detective Guerrero, saw matches in Burrel's car and Guerrero did not collect them.

The evidence presented is legally and factually sufficient for a jury to find that Burrel intended to commit arson. Although Owens later denied her statements made at the scene and testified that Burrel was destroying only the marijuana with the gasoline, there was sufficient testimony from multiple witnesses that Burrel's conscious objective was to burn the house down. "The jury is the sole judge of the weight of the evidence and may choose to believe all, some, or none of it." Rachal v. State, 917 S.W.2d 799, 805 (Tex. Crim. App. 1996). In addition, reconciling conflicts such as the differences in testimony presented in this case is within the exclusive province of the jury. See id. Although as Burrel states, only one witness saw an igniter (matches), the jury chose to believe that witness, as well as others who thought Burrel intended to burn the house down. Further, Burrel's intent to effect the offense may be inferred from his acts, such as splashing gasoline around. See Giddings v. State, 816 S.W.2d 538, 540 (Tex. App.--Dallas 1991, pet. ref'd). The jury heard all of the testimony and chose to believe the testimony that incriminated Burrel.

Burrel also claims the evidence is insufficient since the State failed to prove that San Antonio is an incorporated city. The indictment and the arson statute require that the person know the habitation is "within the limits of an incorporated city or town." Tex. Pen. Code Ann. 28.02(a)(2)(A) (Vernon 2003). Concerning Burrel's claim that the State failed to prove that San Antonio is incorporated, courts may take judicial notice of the fact that San Antonio is an incorporated city. Gonzales v. State, 723 S.W.2d 746, 751 (Tex. Crim. App. 1987).

Regarding the "knowing" requirement, "Texas case law recognizes that when knowledge of the defendant must be established, it can be shown by independent facts and circumstances indicative of such knowledge." Mouton v. State, 627 S.W.2d 765, 768 (Tex. App.--Houston [1st Dist.] 1981, no pet.). Initially, we note that there is no evidence that Burrel did not know the house that he had been living in for six months is within the limits of San Antonio. More importantly, Owens testified that Burrel knew the house is within the city limits. As evident by the verdict, the jury chose to believe that Burrel knew the habitation is within the limits of the incorporated city of San Antonio. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found that Burrel engaged in attempted arson. In addition, viewing the evidence in a neutral light, we hold that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

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