Baugh v. State

725 S.W.2d 450, 1987 Tex. App. LEXIS 6682
CourtCourt of Appeals of Texas
DecidedFebruary 11, 1987
DocketNos. 3-85-236-CR, 3-85-237-CR
StatusPublished
Cited by2 cases

This text of 725 S.W.2d 450 (Baugh v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baugh v. State, 725 S.W.2d 450, 1987 Tex. App. LEXIS 6682 (Tex. Ct. App. 1987).

Opinion

BRADY, Justice.

Appellants Henry and Lynn M. Baugh, husband and wife, appeal from their judgment of conviction for arson. After the jury found both appellants guilty, the trial court imposed probated sentences of ten years. Appellants each argue two points of error. Both complain the trial court should have sustained preliminary motions to quash their indictments. They also challenge the sufficiency of the evidence to support their convictions. We will affirm the judgment of conviction of Henry Baugh and will reverse the judgment as to his spouse, Lynn Baugh.

On August 3, 1984, a fire completely destroyed appellants’ rural home in Milam County. The home was insured, and the appellants subsequently received compensation for the loss from their insurance company. Although many firefighters appeared upon the scene during the fire, there were no witnesses to its ignition. The evidence indicating the fire was set intentionally was both direct and circum[451]*451stantial, while the evidence linking the Baughs to the act touching off the blaze was wholly circumstantial.

The State’s major witness was Charles R. Killingsworth, an expert in fire investigation employed by the State Fire Marshal’s Office. Killingsworth stated that he conducted an investigation of the burn site. Although he could not testify precisely to the origin of the fire, he concluded it had been intentionally set. This opinion was based on several factors: 1) admissions made by the Baughs that valuables had been removed from the house before the fire; 2) the fact that he found few remnants of furniture or other possessions at the fire scene; 3) subsequent discovery of copious amounts of furniture and other possessions stored in a shed on the property; 4) that Mr. Baugh was on the property and awake at the time of the fire; 5) the fact that upon returning home and discovering the fire, Mrs. Baugh did not immediately investigate the safety of Mr. Baugh, but rather went to a telephone some distance away; and 6) evidence that the fire had been started with a flammable liquid.

Although the evidence linking the appellants to the fire is circumstantial, some of the proof demonstrating arson by way of a flammable liquid is quite direct. Killings-worth testified he found spalding marks in the concrete of the front porch and back patio. Spalding, explained the witness, is caused when a liquid accelerant is poured on the concrete and ignited. What happens is that some of the liquid will penetrate into the pores of the concrete and will expand rapidly when set aflame. The result is that the top layer of concrete will blow away, leaving open or raw concrete exposed. The presence of spalding marks on the concrete porches of the Baugh’s residence demonstrated to him that someone had used gasoline or some other flammable liquid to start the fire.

Other aspects of the fire were also consistent with ignition by use of an acceler-ant. Firefighters on the scene testified the house burned down all at once. According to Killingsworth, this rapid and even burning is highly unusual. Normally, he explained, a non-incendiary residence fire will start at one location, bum upwards into the attic, and then proceed throughout the rest of the house. Here, the house burned evenly. Furthermore, the garage, separated from the house by a short walkway, was also completely “involved” with fee from the inside despite the fact that it had a dirt floor and was constructed of sheet metal over a wood frame. Because the fire was equal throughout the structure, Killings-worth stated an electrical origin for the fire would have been impossible. Other accidental sources such as butane gas were also discounted by that witness for the same reason.

In order to show the appellants were criminally responsible for the fire, the State presented circumstantial evidence of a plan to collect on the fire insurance. The primary evidence was that the Baughs had removed most of the furniture and personal possessions before the house was destroyed. Killingsworth testified his investigation of the fire scene failed to uncover vestiges of many items the Baughs claimed the house contained at the time of the fire. This observation was coupled with the discovery of a shed on the premises which, according to Killingsworth, contained “enough to furnish the house.” Additionally, witnesses present at the fire scene testified they heard one of the couple's children state “it was a good thing they had gotten all the valuables out of the house.”

There was also testimony concerning Henry Baugh’s behavior at the fire scene. Henry Baugh was residing in a trailer approximately a half a mile from the fire, but despite the noise of the numerous sirens on emergency vehicles, he did not come to the fire scene until summoned. Furthermore, Killingsworth testified that Henry Baugh told him he was awake at the time of the fire.

Lynn Baugh’s behavior was also unusual. Although the nearest telephone was about a mile away at a neighbor’s house, upon returning home and discovering the fire, she went an extra mile back to [452]*452the town of Buckholts to summon help. Witnesses also testified that she seemed unconcerned at the loss of her home and was more interested in displaying photos of the fashion show she had just attended with her daughter.

The defense presented extensive evidence in an attempt to rebut the proof offered by the State. Through the testimony of William Colthorp, an engineer specializing in fire investigation, the defense challenged both the contention that the fire was intentionally set and that few furnishings were in the house at the time of the fire. Colthorp disputed that spalding was caused by accelerants, asserting instead that it was caused by pouring cold water on hot concrete. As proof of this contention, Colthorp related the results of an experiment performed on the Baugh’s porch in which he was unable to cause spalding with gasoline but was successful when water was applied to the heated surface. This is significant because firefighter’s testified 1200 gallons of water was put on the fire and it is clear the concrete was quite hot at that time. Although he was uncertain of the actual cause of the fire, this witness pointed to an electrical origin and displayed pieces of copper wire from the breaker box that had “arced” together. He did, however, admit that this arcing could have been caused by the fire. Colthorp also found traces of gasoline on one glass fragment taken from the fire scene.

Other testimony by Colthorp disputed the State’s evidence that the fire scene was devoid of substantial furniture and other household possessions. Although Killings-worth claimed he had spent a day investigating the house, Colthorp showed pictures indicating much of the metal roof had not been removed. Colthorp also presented a series of detailed photographs documenting the remains of almost all the property the Baughs claimed the house contained. Significantly, the defense showed photographs of many items that Killingsworth specifically stated he failed to find at the scene, including a steel filing cabinet, a Zenith TV, food cans, a dining table, a staple gun, and several iron skillets, one of which was welded to the top of the electric range.

The defense also called witnesses to explain the furniture found in a shed on the ranch. According to the testimony of the Baughs, the items in the shed were pieces of old furniture they were storing until they could be re-upholstered. An upholsterer testified that he recovered several of the items for the Baughs some time after the fire.

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776 S.W.2d 583 (Court of Criminal Appeals of Texas, 1989)

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Bluebook (online)
725 S.W.2d 450, 1987 Tex. App. LEXIS 6682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baugh-v-state-texapp-1987.