John M. Cole v. The State of Texas--Appeal from 230th District Court of Harris County

Opinion issued November 15, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00742-CR

JOHN M. COLE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1070909

MEMORANDUM OPINION

A jury convicted appellant, John M. Cole, of arson. // After it found one enhancement true, the trial court assessed appellant s punishment at confinement for 15 years. In two points of error, appellant argues that the evidence is legally and factually insufficient to show that he started a fire.

We affirm.

Background

On October 14, 2006, Jimmie Archer Jr., a firefighter with Sheldon Fire & Community Rescue, testified that, at 5:26 a.m, he was called to a fire at 11950 Greenloch. As he entered the house, Archer noticed that most of the fire was coming from the rear of the house.

Three witnesses, Lucio Francisco Delarosa, Lucio Padron Delarosa, and Maximillian Delarosa, who lived on the same street as the fire, saw appellant driving his truck away quickly, with the headlights off, from the backyard of 11950 Greenloch at five in the morning. Shortly thereafter, the witnesses saw smoke coming from the house.

Donald Farris, an arson investigator with the Harris County Fire Marshal s Office, testified that he investigated the fire and learned that Patricia Neil owned the home at 11950 Greenloch, but that no one was staying there at the time of the fire. Farris testified that, inside the home, he saw no beds, dressers, or clothing, and it appeared that no one had been there for a while. Farris determined that the fire had started in the rear bedroom, and he requested a canine unit because some of the patterns on the floor appeared suspicious. Farris eliminated the water heater or electrical device as the source of the fire because none of the devices were present in the area. Farris testified that an open flame initially ignited the fire.

Farris also testified that appellant owned the home at 11954 Greenloch, the house next door to the fire, and that the two addresses shared a backyard. Farris described appellant s home as boarded up and stated that no one was living there. Farris learned that Neil had been living in a Best Western hotel provided by FEMA and that appellant was also staying at the same hotel. Farris also learned that appellant served as Neil s caretaker.

Tom Petty, the owner of the canine unit for the fire marshal s office, testified that his dog, Hunter, gave an alert in the east bedroom. Petty stated that, based on the alerts given by Hunter, he believed that the fire was incendiary. He testified that ignitable liquid was introduced into the scene and that the forensic lab identified it as gasoline.

Jim Swindall, an employee with the Texas Department of Insurance who is the manager of the arson lab, testified that he received 5 one-gallon cans of debris that had been taken from the fire at 11950 Greenloch. Swindall testified that five out of the six cans contained gasoline or alkanes. //

William Richardson, a property adjuster with the Texas Insurance Claims Service, testified that Patricia Neil owned the home at 11950 Greenloch. He testified that the loss was reported to the insurance company on the same day the fire was reported, but that it was not unusual that the claim would be made on the same day as the loss.

Analysis

In his first and second points of error, appellant argues that the evidence is legally and factually insufficient to show that he started the fire.

When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury, as trier of fact, is entitled to resolve any conflicts in the evidence, to evaluate the credibility of witnesses, and to determine the weight to be given any particular evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

In a factual-sufficiency review, we view all the evidence, both for and against the finding, in a neutral light and set aside the verdict only if the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, i.e., the verdict seems clearly wrong and manifestly unjust, or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414 15 (Tex. Crim. App. 2006). We will reverse a jury s verdict only if the record clearly shows that a different result is required to prevent a manifest injustice. See id. at 416 17; see also Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000). In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

A jury is in the best position to evaluate the credibility of witnesses, and we are required to afford due deference to the jury s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). The jury is free to accept or to reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Reconciling conflicting testimony is within the exclusive province of the jury. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001); see Cleveland v. State, 177 S.W.3d 374, 380 (Tex. App. Houston [1st Dist.] 2005, pet. ref d). We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. See Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The essential elements of arson in this case include starting a fire, with intent to destroy or damage any building, habitation, or vehicle, knowing that it is within the limits of an incorporated city or town. Tex. Pen. Code Ann. 28.02(a)(2)(A) (Vernon Supp. 2007).

Appellant asserts that the evidence merely showed that he was present at the scene before and after the fire and that the evidence is legally and factually insufficient to show he started the fire. Appellant primarily relies on O Keefe and Machado in support of his legal and factual sufficiency argument. See O Keefe v. State, 687 S.W.2d 345, 349 50 (Tex. Crim. App. 1985); Machado v. State, 753 S.W.2d 252, 253 54 (Tex. App. Houston [1st Dist.] 1988), pet. ref d, 767 S.W.2d 809 (Tex. Crim. App. 1989). These opinions were based on a different legal standard, one that required evidence negating every reasonable hypothesis except that of appellant s guilt. See O Keefe, 687 S.W.2d at 349 50; Machado, 753 S.W.2d at 253 54. Because this is no longer the law, these cases are not on point. See Geesa v. State, 820 S.W.2d 154, 159 61 (Tex. Crim. App. 1991) (abrogating legal standard that required evidence negating every reasonable hypothesis except appellant s guilt).

We agree with appellant s argument that mere presence is not legally sufficient evidence that appellant committed arson. See Fitts v. State, 982 S.W.2d 175, 186 (Tex. App. Houston [1st Dist.] 1998, pet. ref d). However, the evidence in the record shows more than appellant s mere presence at the scene.

The State presented evidence that three witnesses saw appellant leaving the backyard of 11950 Greenloch at a high rate of speed at 5 a.m. in the morning, without his headlights. The witnesses also testified that appellant had a washing machine, refrigerator, bicycles, and an oven in the back of the truck, from which the jury could have inferred that appellant did not want these items destroyed. Immediately after appellant left the scene, the witnesses saw smoke coming from the back of the house, which eventually turned into a fire. The jury also heard expert testimony that debris taken from the house contained gasoline, leading investigators to opine that the fire was intentionally set. The evidence further showed that the fire was reported at 5:26 a.m. and that a call had been made from Neil s cell phone to the Best Western at 5:29 a.m. The State showed that appellant took care of Neil and that an insurance claim was made on the same day as the fire. The State s circumstantial evidence leads to the inference that appellant set the fire so that an insurance claim could be asserted. Although the State s evidence that appellant ignited the fire was circumstantial, that evidence is as probative as direct evidence. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). We conclude that the State presented legally sufficient evidence for a rational trier of fact to conclude the fire was intentionally set by appellant.

In his factual sufficiency challenge, appellant argues that the evidence is factually insufficient because numerous witnesses placed appellant at another location when the fire started. Specifically, appellant states that Demetrius Cunningham, // Mona Lisa Cunningham, // Mary Marks, // Chantol Betencourt, // and Patricia Neil all testified that appellant was at the Best Western Hotel on the night before and morning of the fire. However, the jury is the sole judge of the weight and credibility of witness testimony and may choose to believe all, some, or none of it. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Accordingly, the verdict is not manifestly unjust because the jury may have disbelieved appellant s alibi witnesses.

After examining all of the evidence, we conclude that the evidence is legally and factually sufficient to support the verdict. See McLendon v. State, 167 S.W.3d 503, 509 (Tex. App. Houston [14th Dist.] 2005, pet. ref d) (holding that evidence was legally and factually sufficient to support conviction for arson when expert testimony showed that fire was intentionally set, diesel was used, and defendant fled from house on foot and in truck).

We overrule appellant s first and second points of error.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

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