John M. Cole v. State

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. T ex. 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) .