Jeffrey Layne Barrett v. The State of Texas--Appeal from 22nd District Court of Caldwell County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-133-CR
JEFFREY LAYNE BARRETT,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
NO. 3-92-134-CR
ZONKER DOUGLAS, A/K/A WAYNE DOUGLAS DUNCAN,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
NOS. 91-032 & 91-033, HONORABLE FRED A. MOORE, JUDGE PRESIDING

In a joint trial, a jury found appellants guilty of the offense of arson. See Tex. Penal Code Ann. 28.02 (West Supp. 1993). Punishments were assessed by the court at eight years' confinement for Barrett and at five years' confinement for Douglas. In single points of error, appellants challenge the sufficiency of the evidence to support the convictions. We will overrule appellants' points of error and affirm the judgments of the trial court.

Appellants had been living in and conducting a lawn care business out of a mobile home which was destroyed by fire on August 4, 1989. Robert Lee, a professional fire fighter, testified that his "outfit" responded to a call at 2:30 a.m. on the date in question to find a mobile home on Caldwell County Road 191 "fully involved" in fire. Upon arrival at the scene, Lee observed sparks coming from an electric line leading to the house. Lee saw two people standing in the street, but was unable to identify them. Lee stated an electrical short "could cause a fire."

Ed Stamnitz, an investigator with the State Fire Marshall's office, testified that his investigation revealed a "pour pattern" burn on the floor of the mobile home that was not natural to a regular fire. Stamnitz collected two debris samples, one of which was determined to contain a medium range petroleum distillate substance such as a "lighting fluid product." Stamnitz concluded that the fire was deliberately set and the source of the accelerant was found in debris samples examined in the D.P.S. crime lab in Austin. Douglas testified that there were two coal oil lamps used in the mobile home; however, Stamnitz stated that he was unable to find any evidence of coal oil lamps nor was he able to find any coal oil in the samples. Stamnitz related that his investigation excluded any accidental causes.

It is undisputed that there is no direct evidence which places appellants at the fire scene immediately prior to, during, or immediately after the fire. Appellants testified that they were on a camping trip north of Dallas at Lake Lavon and East Fork Camp on the night of the fire. A "user permit" shown to be issued by the Army Corps of Engineers reflects that a camping permit was issued to Douglas for the East Fork area of the Lavon project on August 2, 1989, with a stated departure date of August 7, 1989. Appellants testified that they were at Delana Teems' house in the White Rock area of Dallas earlier that evening. Teems, however, did not testify. The State offered evidence that it would have been possible for appellants to leave Teems' home at the stated time and reach the mobile home before the fire began.

Applicable to the instant cause, a person commits the offense of arson if he starts a fire with intent to destroy or damage a habitation, knowing that said habitation is insured against damage or destruction. See Tex. Penal Code Ann. 28.02(a)(2)(B) (West Supp. 1993). Barrett and his parents owned the mobile home. Barrett had purchased the lawn care business from Douglas in 1988 and owed Douglas "approximately" fifteen thousand dollars of the purchase price at the time of the fire. In addition, Barrett owed Douglas five to ten thousand dollars for personal property, including five thousand dollars for an antique organ alleged to have been purchased from Douglas in 1988. Barrett received two checks from the insurance company, one for six thousand dollars and one for twenty-five dollars. Douglas made no claim against the insurance company.

The convictions in the instant causes are dependent on circumstantial evidence. Recognizing that jurors are no longer instructed on the law of circumstantial evidence, and that direct and circumstantial evidence are equally probative, the Court of Criminal Appeals in Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), rejected the former analysis for sufficiency of the evidence that circumstantial evidence must exclude every other reasonable hypothesis other than guilt. The Geesa court found that an appellate review which focused on the outstanding reasonable hypothesis analysis "effectively repudiates the jury's prerogative to weigh the evidence, to judge the credibility of the witness, and to choose between conflicting theories of the case. When understood from this perspective, the construct effectively places the reviewing court in the place of a 'thirteenth juror.'" Id. at 159. Since the instant cause was tried in January 1992, a date following the effective date of Geesa, our review of the sufficiency of the evidence does not include a determination of whether there is an outstanding reasonable hypothesis inconsistent with guilt. We note that the trial court gave the definitional instruction on reasonable doubt that was formulated by the Geesa court. See id. at 162-63.

In reviewing the evidence as an appellate court, we must determine whether, viewing the evidence in the light most favorable to the conviction, 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 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989), overruled by Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991) (overruled to extent that opinion conflicted with Geesa by using analytical construct of excluding every reasonable hypothesis). The Court of Criminal Appeals in Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988), amplified on the correct way to apply the Jackson standard:

 

The court is never to make its own myopic determination of guilt from reading the cold record. It is not the reviewing court's duty to disregard, realign or weigh evidence. This the factfinder has already done. The factfinder, best positioned to consider all the evidence first-hand, viewing the valuable and significant demeanor and expression of the witnesses, has reached a verdict beyond a reasonable doubt. Such a verdict must stand unless it is found to be irrational or unsupported . . . by . . . the evidence, with such evidence being viewed under the Jackson light. Concrete application of the Jackson standard is made by resolving inconsistencies in the testimony in favor of the verdict.

 

Since the exclusion of the reasonable hypothesis analysis in circumstantial evidence cases, the Jackson standard is applicable in determining the legal sufficiency of the evidence in all criminal cases.

Appellant contends that the evidence has been held insufficient to support the conviction where the accused is not placed at or near the scene of the fire. See Baugh v. State, 776 S.W.2d 583 (Tex. Crim. App. 1989); O'Keefe v. State, 687 S.W.2d 345 (Tex. Crim. App. 1985). In Baugh, the evidence showed that the defendant had removed some of his furniture to be refinished. Prior to the fire, the defendant was asleep in a trailer house approximately one-half of a mile from the house. The defendant explained that he frequently slept in the trailer house because it was air conditioned and the structure that burned was not. The evidence regarding the incendiary nature of the fire was highly controverted, both the State and the defendant having offered the testimony of expert witnesses. The defendant explained that he had used gasoline in refinishing the furniture, and that it was stored on the front porch. The defendant had made no threat to start a fire nor had there been any suspicious circumstances such as showing an increase in insurance coverage. The Baugh court held that the State did not negate every reasonable hypothesis as to the cause of the fire, stating that the evidence circumstantially supported the inference that the fire started as the result of an accident rather than arson. Baugh, 776 S.W.2d at 586.

In O'Keefe, the defendants were observed departing the scene of the fire at a "slow rate of speed" a short time before the fire started. Only one of the defendants made a claim on insurance. The defendants, father and son, were at a car-wash when they were notified of the fire. Several witnesses testified that the defendants' reaction was one of shock and disbelief and that they immediately returned to the scene of the fire. Both sides presented expert testimony that was in direct conflict as to whether the fire had been intentionally set. The O'Keefe court concluded that there were at least two other reasonable hypothesis besides arson, and that there was no evidence connecting the defendants with the fire. O'Keefe, 687 S.W.2d at 349-50.

In noting that Baugh and O'Keefe predated Geesa, we are not passing on whether Geesa lessened the standard by which an appellate court reviews the sufficiency of the evidence to sustain a conviction. However, our review of the sufficiency of the evidence in a post-Geesa circumstantial evidence cause does not include a determination of the existence of an outstanding reasonable hypothesis inconsistent with guilt.

While none of the following circumstances, standing alone, meet the State's burden of proof in the instant cause, we find the cumulative effect of all the incriminating evidence sufficient to sustain the jury's findings of guilt under the Jackson and Moreno standard. A number of factors distinguish the instant cause from Baugh and O'Keefe. Appellants had made it known that they were in dire need of money, and the lawn care business was insolvent and no longer in operation. Tracey Krause, a former employee, testified that Douglas stated in July 1989 that, "he might as well burn it and take the money and go." Krause related that the business was in bad financial condition before she was fired. While it was shown that Krause was not on friendly terms with appellants, the jury, as the fact finder, was in a position to determine the weight to be given her testimony. Both appellants stood to improve their financial condition as the result of the fire. While Douglas made no claim against the insurance company, his chance of collecting any portion of the money Barrett owed him would be greatly enhanced by Barrett's collection of insurance following a fire. Eight months prior to the fire, Barrett increased insurance coverage on the personal property in the mobile home from six thousand dollars to eleven thousand dollars. The State's expert testimony about the incendiary origin of the fire and the deliberate setting of the fire was not controverted. While fireman Lee testified that a fire could be started by an electrical short, he voiced no opinion about the cause of the instant fire. Both appellants were shown to have had experience with insurance claims and Douglas had some knowledge of fire investigations from having been a volunteer fireman.

Appellants removed a number of personal property items from the mobile home prior to the fire. A television, a V.C.R., and some clothes were taken on the camping trip. Two dogs were removed to a barn behind the mobile home. Other items of personal property were taken from the mobile home and placed in the barn, including a trunk owned by Douglas that contained his personal property. During the investigation of the fire a television was found on top of the trunk with no dust or debris on it. Appellants related that items were placed in the barn because it was a safer location. However, Barrett claimed that he had left nine hundred dollars in an antique organ in the mobile home. No evidence of the existence of an antique organ was found by investigators following the fire.

Appellants were notified of the fire the following morning between nine and ten o'clock. Unlike the defendants in O'Keefe who returned home immediately after learning of the fire, the appellants remained at the camp ground the remainder of the day and did not start their return trip home until the next morning. Barrett testified that four people could place appellants in Dallas "at about 10:00 p.m." the night preceding the fire; however, no witnesses testified at trial to confirm the alibi. The State offered evidence that if appellants were in Dallas or at the camp site at the stated time, they could have driven home before the fire started. Both appellants failed to cooperate with the fire investigator. Barrett initially told the investigator that the business had not experienced financial difficulties and gave conflicting reports about what he owed Douglas. The only items related to the investigator as having been removed from the house were the television and the V.C.R. until the investigator started his investigation at the barn. Terry DePhillips, a representative of the insurance company, identified a claim filed by Barrett for the sum of $11,950 in which Barrett listed, among other items lost in the fire, an antique organ valued at five thousand dollars, nine hundred dollars in cash, a 12 x 12 oriental rug, a 4 x 6 oriental rug, and 250 record albums valued at $1,500. Barrett did not fill out the portion of the claim form listing the "month and year of purchase, store and city, things like that."

Viewing the cumulative effect of all the incriminating circumstances, we conclude that any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Appellants' points of error are overruled.

The judgments are affirmed.

 

Tom G. Davis, Justice

Before Justices Powers, Aboussie and Davis*

Affirmed on Both Causes

Filed: December 22, 1993

Do Not Publish

 

* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (West 1988).