Walter Lamond Elliott v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-91-061-CR

WALTER LAMOND ELLIOTT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 18,011

O P I N I O N

A jury convicted Walter Elliott of arson and assessed his punishment at forty years in prison. We affirm.

Elliott claims in point one that the court erred in denying his motion for an instructed verdict. To preserve a complaint for appellate review, a party must have presented the court with a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make. Tex. R. App. P. 52(a). The complaining party must also obtain a ruling. Id.

The statement of facts reveals that after the State rested its case Elliott moved for an instructed verdict. The record does not reflect, however, that the court ever ruled on the motion. Because Elliott failed to obtain an adverse ruling, he waived any complaint relating to the motion. See id. Point one is overruled.

Elliott's second point is that the evidence is insufficient to support his conviction. In reviewing the sufficiency of evidence, the appellate court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989).

Based on this standard, the facts established at trial clearly support the conviction. An eyewitness, Shirley Collins, testified that she saw Elliott strike two matches, set fire to her sister's house, and run from the scene. Collins said the time was 6:30 a.m., the sun was up and it was light outside. Collins had known Elliott for many years and immediately recognized him. She was also able to identify the type and color of clothing he was wearing.

Elliott claims on appeal, as he did in the trial court, that Collins' identification was faulty because it was made in the predawn darkness. He alleges that the 1990-1991 edition of the Texas Almanac indicates that the sun arose at 6:46 a.m. that morning. He also introduced into evidence his time card from Jameson Manufacturing Company, located in Italy, Texas, which showed that he arrived for work on the morning of the offense at 6:49 a.m. This was verified by his supervisor. The distance between Bardwell, where the fire occurred, and Italy is approximately fourteen miles. Elliott asserts that he could not have set the fire at 6:30 a.m. and then driven to work and punched in only nineteen minutes later.

The jury was the sole judge of the witnesses' credibility and the weight to be given their testimony. Accordingly, the jury had to determine whether Collins actually saw what she said she saw, whether the distance and lighting conditions adversely affected her ability to accurately identify the culprit, and whether her identification of Elliott was thus accurate or inaccurate. Moreover, the jury had the sole responsibility of determining whether Elliott could have set the fire, fled the scene, driven fourteen miles, and then reported to work by the time indicated on his time card. In any event, the jury was not required to believe that Elliott's time card was accurate or that his supervisor's verification of the time he arrived at work was accurate. Viewing the evidence in the light most favorable to the verdict, which included the testimony of an eyewitness, a rational trier of fact could have found beyond a reasonable doubt that Elliott committed the arson. See id. at 239. Point two is overruled.

Elliott contends in point three that the court erred in failing to take judicial notice of the time of sunrise on the morning the offense occurred. A court can take judicial notice of a fact as long as it is not subject to reasonable dispute because it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination from sources whose accuracy cannot be reasonably questioned. Tex. R. Crim. Evid. 201(b). A court must take judicial notice if requested by a party and supplied with the "necessary information." Id. at 201(d).

After Collins testified that the offense occurred at 6:30 a.m., when the sun was already up, Elliott asked the court to take judicial notice that on the morning of the offense sunrise actually occurred at 6:46 a.m. He provided the court with the 1990-1991 Texas Almanac, which contained astronomical tables and instructions for calculating sunrise on the date of the offense. The court announced to the jury, however, that it would not take judicial notice of the time of sunrise, but would instead provide jurors with a copy of the tables and instructions so they could make their own calculations.

Had the court taken judicial notice of the time of sunrise on the date of the offense, it would have instructed the jury that "it may, but [was] not required to, accept as conclusive" the judicially noticed fact. See id. at 201(g). Assuming the court erred when it refused to take judicial notice as requested, the error was harmless. See Tex. R. App. P. 81(b)(2). The jury had before it the same tables and instructions for calculating sunrise as did the court. The record does not affirmatively indicate that the jury did not calculate the time of sunrise on its own and still reach the same decision based on Collins' eyewitness testimony.

Applying the guidelines in Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989), isolating the error against the backdrop of the evidence as a whole, and considering that the jury was not required to accept as conclusive the determination of sunrise either by the court or as calculated under the tables and instructions furnished by the court, we find that any error was harmless beyond a reasonable doubt. Point three is overruled and the judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 1, 1992

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