Brian O'Neil Cooley a/ka Dayren O'Neal Armstrong v. The State of Texas--Appeal from 35th District Court of Brown County

Opinion filed November 30, 2006

In The

Eleventh Court of Appeals

____________

   Nos. 11-05-00036-CR & 11-05-00037-CR

__________

   BRIAN O=NEIL COOLEY A/K/A DAYREN O=NEAL ARMSTRONG,

Appellant

V.

STATE OF TEXAS, Appellee

On Appeals from the 35th District Court

Brown County, Texas

Trial Court Cause Nos. CR17342 & CR17343

O P I N I O N

The trial court convicted Brian O=Neil Cooley a/k/a Dayren O=Neal Armstrong of aggravated assault[1] and of arson.[2] In each case, appellant entered pleas of Atrue@ to allegations of two prior felony convictions, and the trial court sentenced him to confinement for 40 years. We affirm.

Issues Presented

Appellant=s sole issue in each case challenges the factual sufficiency of the evidence to support his conviction. For the aggravated assault offense, appellant contends that the evidence is factually insufficient to support the trial court=s finding that he knowingly caused serious bodily injury to Karen Hawthorne on June 10, 2004. For the arson offense, appellant argues that the evidence is factually insufficient to support the trial court=s finding that he committed the offense of arson on June 10, 2004. Appellant argues that the State=s witnesses were Aso inconsistent and contradictory@ that their testimony did not amount to proof beyond a reasonable doubt that he committed either offense. We disagree.

Standard of Review

To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 2006 WL 2956272, at *8 (Tex. Crim. App. Oct. 18, 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 2006 WL 2956272, at *8; Johnson, 23 S.W.3d at 10-11.

Evidence Presented

It is undisputed that on June 10, 2004, appellant started a fire that seriously burned Karen and charred her home. It is appellant=s culpable mental state when he ignited the fire that is disputed.

Karen testified that, at the time of the incident, appellant and her three sons, Quan, Joseph, and Joe, lived with her in the house. On the night in question, several people had been at the house, and Karen confronted appellant about dancing with a young lady in the dark. Appellant became upset and walked off. About three hours later, appellant came back. Karen testified that, when she told appellant to leave, he started throwing shoes and cassette tapes around their bedroom. Karen again told appellant to get out of the house. Appellant was very upset and was cursing. However, appellant did not make any threats. When appellant told her that he had no place to go, Karen told him that she did not care. Appellant put his things in a Abig old green Army bag@ and walked outside. Karen thought that appellant was gone until Joseph told her that appellant was on the front porch with a gasoline can.

Karen testified that, when she went out on the front porch, the porch was wet and that she could smell gasoline. She saw appellant bending down with a lighter in his hand. Together with Quan and Joseph, she tried to stop appellant. Karen testified that she told appellant, A[P]lease, please don=t do this.@ Appellant answered her, AI love you.@ Karen asked him, AHow could you love me and then you try to burn me and the kids up?@ Appellant did not answer.

Karen saw appellant touch the lighter to the porch and ignite the gasoline. Quan then yelled, AMama, roll over, you=re on fire.@ She was in pain and in shock. Karen was not really sure what Joseph was doing at this time. She remembered Quan pulling off her pajama bottoms. When she looked at her legs, she saw her Askin laying open.@

Karen testified that she was first taken to Brownwood Regional Medical Center and then transferred to Parkland Hospital in Dallas. She had surgery, skin grafts, hydrotherapy, and casts to treat her injuries. She received physical therapy to help her walk. At the time of trial, Karen was still receiving treatment.

Karen denied that the fight was over appellant having drugs in her home or that she had ever told a doctor that their fight was over drugs. Karen did state that appellant had been Aaggressive toward [her] a couple of [times],@ but she also stated that she Anever thought he would do something like that.@ Karen stated that appellant had written her letters from jail after his arrest in an effort, in her opinion, to get her to drop the charges. Karen testified that, once, appellant had picked her up, threw her down, and then started to drag her down the street. Karen further testified that she had not seen appellant=s Army bag outside in her yard.

Quan Hawthorne testified that his mother and appellant were fighting because appellant had had marihuana in the house. His mother told appellant to pack his bags and get out. Quan also stated that his mother was unhappy because appellant had been dancing in the dark with another woman. Appellant became really mad, packed his things in what looked like an Army duffle bag, and went outside. Appellant then ran to the back of the house, got a can of gasoline, and began pouring gasoline on the front porch. Quan testified that appellant Ahad the gas can, steady pouring till the gas jug was almost empty.@ Quan saw appellant ignite the gasoline on the front porch. The flames arose quickly, and his mother was not aware that she was on fire. He grabbed his mother, threw her down, and rolled her to put out the flames. He also pulled off her pajamas. Quan testified that his mother=s Askin was just hanging everywhere.@ She was in a lot of pain and kept saying, AI can=t believe he burned me.@ Appellant just Atook off running.@

Quan testified that, during the incident, he had gone back into the house to put his shoes on, that he had struggled with appellant over the gasoline can, and that he had made physical contact with appellant during the struggle. Also during this time, Quan stated that his mother told appellant, ANo, don=t do that.@ Quan testified that appellant Ajust said, >You F=d up.=@

Joseph Hawthorne testified his mother and appellant had an argument. His mother was yelling, and it looked like appellant was packing. Appellant took a box of cereal and poured it in his mother=s bed. Joseph stated that he did not know what the argument was about and that his mother asked appellant to leave. Appellant told Joseph=s mother, AYou shouldn=t have ever done me like this.@ Appellant went outside, put his bag down on the sidewalk, and left. Appellant came back with a gasoline can and poured gasoline on the walkway all the way up to the front porch. Appellant=s bag was out of the way, and it did not look like appellant was trying to burn his belongings.

Joseph called to his brother Quan and to his mother that appellant was trying to burn the house down. Joseph stated that Quan and his mother tried to push appellant away Abefore he started doing anything stupid.@ Joseph saw appellant ignite the gasoline on the porch. Joseph testified, A[T]he porch and the walkway was in flames and so was my mom.@ Joseph sprayed his mother with a hose, and appellant ran off. Joseph stated that appellant=s things did not burn because they were not in the path of the fire.

Dr. Charles Valadez testified that he was the emergency room physician at Brownwood Regional Medical Center who treated Karen at 3:57 a.m. Karen had second and third degree burns to her lower legs. The burns on her right leg were circumferential meaning that her burns went all around her lower right leg. Karen also had second and third degree burns on her left ankle and foot. Dr. Valadez stated that Karen=s burns covered 20% of her body, constituted serious bodily injuries, and warranted her transfer to the Parkland burn unit. Dr. Valadez testified that Karen told him that she had fought with appellant because she did not want drugs in her house and that appellant had started the fire.

Brownwood Police Sergeant Tracey Edgar testified that, when she arrived at the house, Karen was screaming that she had been set on fire, that appellant=s bag was at the end of the sidewalk, and that there was a gasoline can near the front porch. Karen=s skin was sloughing off of her legs. Sergeant Edgar held Karen down and held a water hose over her legs. Karen told Sergeant Edgar that she and appellant had fought, that appellant had packed his things and left, that he had poured gasoline on the porch and down the steps, and that he had ignited the gasoline while she was standing in it. Sergeant Edgar further testified that Karen said she had found marihuana and had told appellant that he had to leave.

When Brownwood Patrol Officer Michael Sheedy arrived, he looked around but was not able to locate appellant. Brownwood Police Sergeant Dennis Weathermon testified that he was able to identify appellant from a Taco Bueno cap in appellant=s bag. Sergeant Weathermon received information that appellant had made a phone call to a relative and was able to trace the number to the Whistle Stop Grocery in Blanket where appellant was then arrested. Brownwood City Fire Marshal Gene ABuddy@ Wells Preston Jr. testified that he investigated the fire. Marshal Preston found a pour pattern on the sidewalk and front porch of the home. There were splatter and burn marks on the wall of the home. A gasoline can was upright in the front yard when Marshal Preston arrived. Marshal Preston testified that the fire was a Adeliberate fire.@ Karen told Marshal Preston that Ait all started over [appellant] bringing drugs into the house.@

Appellant testified that he was convicted in 1992 and again in 1993 for possession with the intent to deliver a controlled substance. After his release from prison, he lived in a halfway house in Dallas and then moved to a halfway house in Brownwood. Karen was first his friend and later became his girlfriend. On the night in question, Karen and appellant had been drinking. They were each supposed to get three beers, but he only got two. Appellant testified that Karen had also drank about a fifth and a half of Boone=s Farm wine. The couple had an argument because Karen thought he had been dancing with a girl. Appellant testified that he did not like to argue and so he left for about fifteen minutes. When he returned, Karen told him to Aget [his] s--t and leave.@

Appellant stated that he had too many belongings to carry and that he only owned a bicycle. Appellant took his belongings Aout@ Aby the street@ to sort them. He had decided to burn the things that he did not want to keep. Joseph saw him put gasoline on the sidewalk but did not say anything. Appellant told Quan that he was going to burn his clothes. Gasoline only spilled on the porch when Quan pulled on the gas can. Quan also caused gasoline to spilled on him. When Karen came out and asked him why there was gasoline on her porch and steps, appellant told her that he was not going to burn the house down.

Appellant testified that his intent was to burn his belongings and that he had no intention of injuring Karen or of harming her home. Appellant also stated that he tried to light a fire that night but that he never Areally@ did. When he tried to burn his clothes, Karen jumped in the middle of what he was doing. Appellant testified that that was when he told her, ADon=t f--k with me like that.@

Appellant testified that Karen was concerned that, if he burned his clothes, her porch and steps would catch fire. To reassure her that there was Ano other gas out [there] connected from [his] bag to her porch,@ appellant struck the lighter. The gas ignited. Karen was out in the yard at the time and tried to move to the porch. Appellant testified that he was afraid that she might catch fire and that he Abarricaded@ her against a pillar of the house. He turned and hit his knee against the pillar. Karen pushed him off of her, and his left sleeve caught fire. Karen stumbled, and her right leg caught fire. At first, the fire was just at the base of her foot. Appellant testified that, as Karen kicked, the fire spread up her right leg and over to her left leg.

Appellant testified that he left Karen=s front yard and went across the street where he sat down in the neighbor=s yard behind a chain fence. The police did not look across the street, and no neighbors came over. He only left Karen=s yard because Quan and Joseph were screaming at him. He did not leave the neighborhood because he was concerned about Karen=s well-being. Appellant testified that he later left Brownwood because he was Adismayed,@ he was Ahurt,@ he did not want to talk to anyone, and he Awas disbelieving that this had happened.@ He tried to get a ride to Dallas, and a man dropped him off in Blanket where he was arrested.

Appellant testified that he had never hit Karen, that they Agot along generally fairly well,@ and that he had never threatened her. One time, Karen thought a girl was Acom[ing] on to [him],@ and Karen started to scream and yell. He did not think anyone Aneed[ed] to be hearing that,@ so appellant picked Karen up, put her on his shoulder, and started to walk away. When Karen screamed that she wanted down, appellant put her down. She was screaming and swinging her arms at him. Appellant grabbed Karen=s arms, Atook her down,@ and sat on top of her. The police came, and Karen Agot right then.@ She told the police that there was no problem between she and appellant.

Appellant further testified that he had attempted to communicate with Karen after the fire. He called once, and her boyfriend answered. However, he thought that he was still her boyfriend, and the man threatened him. Appellant also testified that he wrote Karen letters telling her that he was sorry she had been burned and that he had not meant for that to happen to her. Appellant stated that he should have thrown his extra things away and that, if he had never thought of burning them, Athis@ would not have happened.

Analysis

The trial court, as the finder of fact, is the sole judge of the weight and credibility of the testimony. Adelman v. State, 828 S.W.2d 418 (Tex. Crim. App. 1992); DeBolt v. State, 604 S.W.2d 164 (Tex. Crim. App. 1980); Austin v. State, 794 S.W.2d 408 (Tex. App.CAustin 1990, pet. ref=d). We review the fact-finder=s weighing of the evidence and cannot substitute our judgment for that of the fact-finder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 133. Due deference must be given to the fact-finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 9; Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996). This court has the authority to disagree with the fact-finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson, 23 S.W.3d at 9.

Appellant was charged with Aintentionally, knowingly or recklessly@ causing serious bodily injury to Karen by igniting a combustible liquid causing Karen to be burned and with starting a fire or causing an explosion by pouring a combustible liquid on the porch or steps of Karen=s residence. The trial court stated in open court that, while it did not find that the proof established that appellant acted intentionally, it did find that the proof established he acted knowingly in committing the aggravated assault. The trial court further stated that the proof did not establish an explosion but did establish beyond a reasonable doubt that appellant started a fire by pouring a combustible liquid on the porch or steps of Karen=s residence. The trial court then found appellant guilty of aggravated assault and of arson as charged in the indictments.

After reviewing all of the evidence in a neutral light, we do not find that the evidence is so weak that the verdicts are clearly wrong and manifestly unjust. The record supports the trial court=s finding that appellant acted knowingly when he ignited the lighter and held it to the area where gasoline was present and that appellant committed the offense of arson. Likewise, we do not find that the verdicts are against the great weight and preponderance of the conflicting evidence of appellant=s testimony that he acted only to reassure Karen and to protect her; of Joseph=s, Quan=s, and Karen=s testimony concerning the exact sequence of their movements in the front yard; or of the testimony concerning the reason for Karen and appellant=s argument. The sole issue in each case is overruled.

Conclusion

The judgments of the trial court are affirmed.

PER CURIAM

November 30, 2006

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Cause No. 11-05-00036-CR.

[2]Cause No. 11-05-00037-CR.