In The
Court of Appeals
Ninth District of Texas at Beaumont
________________ NO. 09-19-00206-CR ________________
CRAIG LEE ANDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 18-30269 ________________________________________________________________________
MEMORANDUM OPINION
Craig Lee Anderson appeals his first-degree felony conviction for arson of a
habitation. See Tex. Penal Code Ann. §§ 28.02(a)(2), (d)(2). The State alleged two
enhancements for prior felony convictions to which Anderson pled “true,”
increasing the range of possible punishment. See id. § 12.42(c)(1). The jury assessed
punishment at fifteen years of confinement, and the trial court sentenced Anderson
accordingly. In three issues, Anderson challenges the sufficiency of the evidence
arguing: (1) the evidence was insufficient to support the conviction; (2) the trial court
1 committed reversible error by commenting on the weight of the evidence to support
the enhancement allegations; and (3) he was denied an impartial tribunal resulting
in a denial of due process and a fair trial. For the following reasons, we affirm the
trial court’s judgment.
I. Background
Anderson and Jamalliar Sadler had been in a dating relationship for
approximately four and a half years when they moved into a home together in Port
Arthur, Texas. Sadler’s teenage son also resided with them. They rented the home
from Beverly Higgins and her husband. Anderson and Sadler had not resided in the
home long when their relationship soured, and Sadler moved out. In a string of phone
calls and text messages, Anderson threatened to burn Sadler’s possessions, at which
point Sadler called the authorities. The police arrived at the rental home, entered
through unlocked doors, and observed smoke. The Port Arthur Fire Department
(PAFD) also responded to the scene.
A. Evidence
1. Beverly Higgins’s Testimony
Beverly Higgins was the State’s first witness. She testified that she and her
husband owned the home in question. Higgins said that she leased the house to
Anderson, and at the time the fire occurred, he had only been leasing the home for
about three months. Higgins testified that her husband received a call from the fire
2 department, and she met her husband at the house. When they arrived, motor oil had
been spread all over the house in every room and Higgins described it as “just
splashed everywhere[.]” Higgins testified that there were burned curtains in a back
room and the wall was scorched. During Higgins’s testimony, the State offered, and
the trial court admitted, multiple photographs as exhibits depicting the home after
the fire. These photographs showed a substance poured throughout the house, burnt
curtains, and scorched walls. Higgins described these photographs and the damage
to the home during her testimony.
2. Jamalliar Sadler’s Testimony
Jamalliar Sadler, Anderson’s ex-girlfriend, also testified during the State’s
case in chief. Sadler testified that when they moved in together, she and Anderson
were not getting along, but they were going to “give it a chance.” She confirmed that
neither she nor Anderson owned the home. At some point, their disagreements
became such that she and her son moved out. When she left and took her son, there
was still animosity between her and Anderson so she did not tell him where she was
going. Sadler testified that Anderson called her and sent text messages in an attempt
to reach her, and copies of text messages between them were admitted as exhibits
during her testimony. In one of these texts, Anderson told her that “stuff of yours is
going up in smoke.” Sadler explained that meant to her that Anderson was “trying
to tell me he’s going to burn my stuff.” Sadler further testified that she received a
3 phone call from Anderson about 1:19 a.m. telling her the “house burned, stuff in the
house is on fire[,]” and he was going to “[p]our oil on everything . . . [a]nd burn it.”
After Anderson’s phone call, Sadler called the police and asked them to check
on the house. Sadler explained that the police checked the home and called to tell
her that as soon as they opened the door, they saw smoke coming out and the house
was on fire. Sadler testified that she went to the home the next day and described for
the jury that the fire damage included the walls and curtains, and there was “oil
everywhere.” Sadler testified that she had to throw her son’s things away because
they were soaked in oil. Sadler testified that none of the damage exhibited in the
photographs existed when she left the home, and fire caused the damage on the night
of the phone call.
3. Michael Adaway’s Testimony
Michael Adaway is a Captain for the PAFD and was dispatched to the address
in question around 1:30 a.m. When they arrived, they were able to walk into the
home because the doors were unlocked. Adaway described the house as having
“very light smoke throughout[.]” It also appeared as if someone poured some
substance over belongings and throughout the house on the floor and walls. Adaway
testified that the substance on the floor appeared to be motor oil. He testified that
while gasoline burns very quickly, oil is not easy to ignite and requires a very high
temperature to get it to burn and to keep it burning.
4 When asked where the fire originated, he said some mini blinds appeared to
have melted and there were some curtains that were partially burned. There was
nothing smoldering when they arrived, so they did not have to extinguish any fire.
Adaway said they used their thermal imager to make sure there were not any hot
spots remaining in the house before they left.
4. Joe Pirtle, Jr.’s Testimony
Joe Pirtle, Jr. testified that he is the PAFD’s Deputy Fire Marshal over
investigations and inspections and has worked for PAFD for twenty-four years. He
explained that his job duties include conducting arson and cause of origin
investigations. He has been actively investigating arson cases since 2001 or 2002.
Pirtle testified that on July 7, 2017, he went to the house in question, but when
he arrived, it was not actively burning. He told the jury that he walked around outside
the house, but he did not find anything of interest related to the fire.
Pirtle then “enter[ed] the structure and look[ed] for any burn patterns[.]” Pirtle
testified that he found a substance poured all over the house that appeared to be
motor oil and multiple fires started in different areas of the home that were not
connected in any way. Pirtle explained that motor oil burns hot, but in order to get it
going, you must light it with something hot; “you can’t light motor oil usually with
just a lighter or something.”
5 Pirtle testified there were multiple unconnected burnt areas. He explained that
with accidental fires, like electrical, something will usually originate in one spot,
whereas when you see multiple spots on fire that are not connected, somebody lit
those fires separately. Once Pirtle found multiple unconnected fires, he began
looking for “natural heat sources[,]” like electrical outlets, in order to rule them out.
Pirtle said he could not pinpoint where the fire started; it looked like somewhere on
the curtains, but he could not tell for sure. Pirtle opined that it was an incendiary fire,
which he explained meant the fire was intentionally lit by someone. When asked
what kind of charge it is called when someone intentionally sets fire to something,
Pirtle responded, “Arson.”
5. Marcelo Molfino’s Testimony and Cell Phone Records
Marcelo Molfino, a Criminal Investigator with the Jefferson County District
Attorney’s Office, also testified for the State. Molfino explained that his job included
looking at cell phone records, like the call detail records in question in this case.
Molfino described T-Mobile records for a number belonging to Craig Anderson and
said the records were obtained through a search warrant. These records were
admitted into evidence. Molfino described the software they used to break down the
records into dates, times, and the length of the calls.
The State introduced a call log from Anderson’s phone, which Molfino
discussed. Molfino testified the records showed an outgoing call from Anderson’s
6 phone to Sadler’s phone at 1:19 a.m. that lasted twelve seconds and the call was
completed successfully. Molfino explained that the call Anderson made at 1:19 a.m.
hit a tower “just a couple of blocks” from the fire’s location, leading him to conclude
that at 1:19 a.m. on July 7, 2017, Anderson’s phone was in the general area of the
fire’s location.
6. Esau Anderson, Jr.’s Testimony
The defense called Anderson’s older brother, Esau, to testify. Esau testified
that on the evening in question, he received a text message from Sadler at 1:21 a.m.,
telling him what his brother did. After receiving Sadler’s message, Esau went to their
mother’s house where he found Anderson asleep. On cross-examination, Esau
explained that he had seen his brother earlier in the evening, but he was not with
Anderson for several hours as Anderson told investigators, and Esau was at his own
home when the fire occurred. Esau also testified that their mother was living with
him at the time and was not hospitalized in Houston, like Anderson told
investigators.
7. Antonio Mitchell’s Testimony and Anderson’s Sworn Statement
Following Esau’s testimony, the State called Antonio Mitchell as a rebuttal
witness. Mitchell testified that he works for the PAFD where he oversees the arson
investigation program. He said that he contacted Anderson, who came into the office
and talked to him about the fire. Mitchell testified that Anderson said “something
7 about him being with his brother” the night of the fire. He also discussed a sworn
statement Anderson signed that was admitted into evidence. In the statement,
Anderson claimed he went to Houston to visit his mother in the hospital and that
Esau stayed with him until around midnight.
B. Trial Judge’s Comments During Punishment
During the punishment phase, the State read the balance of the indictment,
which included enhancements for two prior felony convictions. The first conviction
was a second-degree felony possession of a controlled substance, and the second
conviction was for a third-degree felony delivery of a simulated controlled
substance. Anderson pled “true” to both enhancements.
The trial court then read the punishment charge to the jury. After reading the
charge to the jury but before closing statements, the trial court told the jury, “Now
two things. Number one, the paragraphs 2 and 3 are non-state jail felonies. We talked
about the levels, and each of those convictions were higher than a state jail felony.
So, that is by law the fact.” Anderson did not object to the trial court’s statement.
C. Trial Outcome
The jury found Anderson guilty of the first-degree felony offense of arson of
a habitation. Anderson pled “true” to two enhancements and was sentenced to the
minimum punishment within the applicable range after enhancement, fifteen years
of confinement. Anderson timely appealed.
8 II. Analysis
A. Sufficiency
In his first issue, Anderson challenges the sufficiency of the evidence to
support his conviction. Anderson argues that the State failed to establish the facts
alleged in the indictment and specifically contends that “[n]o rational juror could
have found that appellant started a fire by igniting oil.” Anderson further contends
there “is a remarkable absence in the record of any evidence to establish that
appellant ignited oil.”
When an appellant challenges the sufficiency of the evidence, we review the
evidence in the light most favorable to the verdict to determine whether any rational
factfinder could have found the essential elements of the offense beyond a
reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010
(citing Jackson v. Virginia, 443 U.S. 307 (1979)) (concluding the Jackson standard
is the only standard that a reviewing court should apply when examining
sufficiency); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “[We] must
evaluate all of the evidence in the record, both direct and circumstantial, whether
admissible or inadmissible.” Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.
1999). The jury is the sole judge of the witnesses’ credibility and weight to be given
their testimony. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). We
9 must defer to the jury’s determinations of weight and credibility of the witnesses and
its responsibility to fairly resolve conflicts in testimony. See Hooper, 214 S.W.3d at
13; see also Brooks, 323 S.W.3d at 899. Juries may draw multiple reasonable
inferences from facts so long as each inference is supported by the evidence
presented at trial. Tate, 500 S.W.3d at 413. We determine whether necessary
inferences are reasonable based on the combined, cumulative force of all evidence
when examined in the light most favorable to the verdict. Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). In conducting a sufficiency review, “we
should look at ‘events occurring before, during and after the commission of the
offense[.]’” See Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d
107, 111 (Tex. Crim. App. 1985)).
The State charged Anderson with the offense of arson of a habitation. See Tex.
Penal Code Ann. § 28.02(a)(2). The statute provides that “[a] person commits an
offense if the person starts a fire, regardless of whether the fire continues after
ignition or causes an explosion with intent to destroy or damage . . . any building,
habitation, or vehicle[.]” Id. Here the State specifically alleged in the indictment that
Anderson “did then and there intentionally and knowingly start a fire, by igniting
oil, with intent to damage and destroy a habitation . . . and the Defendant knew that
the property was owned by another[.]”
10 Testimony at trial revealed that Anderson and Sadler had recently had a
contentious breakup, which resulted in Sadler moving out of the home they rented
together. The evidence at trial established that Anderson sent Sadler text messages
shortly before the fire and threatened that “stuff of yours is going up in smoke.”
Sadler also testified that Anderson called her at 1:19 a.m. telling her that the “house
burned, stuff in the house is on fire[,]” he “pour[ed] oil on everything[,]” and he
“burn[ed] it.” Additional evidence in the form of cell phone records and a criminal
investigator that analyzes cell tower data confirmed Anderson called Sadler from his
cellphone and the call pinged a tower within blocks of the fire’s location at 1:19 a.m.
PAFD employees testified that there was a substance that appeared to be
consistent with motor oil poured throughout the home. Photographic evidence
admitted at trial showed a black substance consistent in appearance to motor oil in
nearly every room in the home on the floors, walls, and personal belongings. Sadler’s
testimony described her observations of the home the day after the fire, which
included that there was oil everywhere, the room was burned, the walls were burned,
and the curtains were burned. Sadler testified that before Anderson called her that
night, there had been no previous fire in the home; she called police immediately
after he called her, and the police found fire damage to the home when they arrived
shortly after Anderson’s call to Sadler.
11 When the fire department arrived, they observed smoke in the house and
burned areas around the windows. Deputy Marshal Pirtle confirmed that the
substance poured around the home appeared to be motor oil. Pirtle explained that
motor oil burns hot, but in order to get it going, you must light it with something
extremely hot. He testified that “you can’t light motor oil usually with just a lighter
or something. You have to get something else going to get the motor oil going.”
Pirtle also testified that he found evidence of multiple unconnected fires in the home,
and when he began looking for heat sources that may have accidentally caused the
fires, he could not find any. Pirtle explained to the jury that accidental fires usually
originate in one spot, whereas when you see multiple unconnected fires, someone
has intentionally lit them. Ultimately, Pirtle opined that the fire was incendiary in
nature, which meant someone intentionally lit it.
We disagree with Anderson’s contention there is insufficient evidence to
support the jury’s verdict that he “intentionally and knowingly start[ed] a fire, by
igniting oil, with intent to damage and destroy a habitation[.]” A jury is allowed to
draw multiple reasonable inferences. Jackson, 443 U.S. at 318–19; Hooper, 214
S.W.3d at 13. The evidence established that Anderson threatened to set fire to
Sadler’s things and the home. He further told Sadler that he poured oil on everything
and burned it. Evidence also indicated recent fire damage to the home when the fire
department arrived soon after Anderson called Sadler, and Anderson’s phone was
12 shown to be within the general location of the fire at 1:19 a.m. when he called Sadler.
Further, a fire investigator testified that the fire was incendiary in nature. A jury
could reasonably infer that Anderson poured the oil and started fires in the home as
he said he would, despite the difficulty he obviously encountered attempting to set
the motor oil on fire. Moreover, the jury could reasonably infer that Anderson lit the
oil and it burned out shortly thereafter. The arson statute expressly states that “[a]
person commits an offense if the person starts a fire, regardless of whether the fire
continues after ignition[.]” Tex. Penal Code Ann. § 28.02(a) (emphasis added). The
fact that other items in the home, including the curtains, were also set on fire in an
attempt to ignite the oil does not negate evidence supporting the jury’s reasonable
inferences that Anderson started a fire by igniting oil. We overrule Anderson’s first
issue.
B. Trial Judge’s Comments and Impartiality of Tribunal
In his second and third issues, Anderson complains that the trial court erred
by commenting on the evidence to support the enhancement allegations and that he
was denied an impartial tribunal resulting in a denial of due process and a fair trial.
The trial court’s “comments” occurred during the punishment phase after Anderson
had already pled “true” to the enhancements and after the trial court read the
punishment charge to the jury. The trial court told the jury that the enhancement
paragraphs were “non-state jail felonies.” The first enhancement read in front of the
13 jury regarded Anderson’s final conviction of the “felony of possession of a
controlled substance, second degree,” to which Anderson pled “true.” The second
enhancement alleged Anderson’s conviction for “the felony of delivery of a
simulated controlled substance, third degree,” to which he also pled “true.”
In his brief, Anderson complains that Texas Code of Criminal Procedure
prohibits a trial judge from commenting on the evidence. See Tex. Code Crim. Proc.
Ann. art. 38.05. Anderson concedes that he failed to object to these comments but
argues the issue may be raised for the first time on appeal. We agree. The Texas
Court of Criminal Appeals held in Proenza v. State
that claims of improper judicial comments raised under Article 38.05 are not within Marin’s third class of forfeitable rights. Rather, we believe that the right to be tried in a proceeding devoid of improper judicial commentary is at least a category-two, waiver-only right. Because the record does not reflect that [the defendant] plainly, freely, and intelligently waived his right to his trial judge’s compliance with Article 38.05, his statutory claim in this matter is not forfeited and may be urged for the first time on appeal.
541 S.W.3d 786, 801 (Tex. Crim. App. 2017) (citations omitted). Accordingly, we
address the merits of Anderson’s complaint despite his failure to contemporaneously
object to the comments.
Assuming, without deciding, that the trial judge’s comments were improper,
we undertake a harm analysis. Because Anderson also asserts a due process error
associated with these comments as being indicative of partiality, we will analyze
14 harm under the standard for constitutional errors. 1 See Tex. R. App. P. 44.2(a). Texas
Rule of Appellate Procedure 44.2(a) provides that constitutional errors are “subject
to harmless error review[.]” Id. In examining constitutional errors, the court “must
reverse a judgment of conviction or punishment unless the court determines beyond
a reasonable doubt that the error did not contribute to the conviction or punishment.”
Id.
The State has the burden “to show that any prior conviction used to enhance
a sentence was final under the law and that the defendant was the person previously
convicted of that offense.” Donaldson v. State, 476 S.W.3d 433, 439 (Tex. Crim.
App. 2015) (citing Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007)).
The defendant’s plea of “true” satisfies the State’s burden. Id. The trial court’s
comments were made during the punishment phase after Anderson had already pled
true to the enhancements for two prior felony convictions, specifically, a second-
degree felony and third-degree felony. Therefore, the State’s burden to prove the
enhancements had already been satisfied. See id. The trial court’s comments that
1 The Texas Court of Criminal Appeals also explained in Proenza v. State that where a criminal defendant’s complaints regarding a trial court’s comments are statutory only, courts of appeals should undertake a nonconstitutional harm analysis, whereas constitutional complaints require a constitutional harm analysis. 541 S.W.3d 786, 801 (Tex. Crim. App. 2017) (citations omitted); see also Tex. R. App. P. 44.2(a) (constitutional harm analysis); Tex. R. App. P. 44.2(b) (nonconstitutional harm analysis). 15 these were “non-state jail felonies” restated what Anderson admitted to before the
jury. The statement by the trial court was an undisputed and uncontested fact.
Once a finding of true to the enhancement paragraph is entered, “the
‘punishment is absolutely fixed’ by law.” State v. Allen, 865 S.W.2d 472, 474 (Tex.
Crim. App. 1993) (quoting Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App.
1991), cert. denied, 454 U.S. 840 (1981)). The punishment range for a first-degree
felony is 5 to 99 years, absent enhancements. See Tex. Penal Code Ann. § 12.32(a).
With Anderson’s plea of “true” to two prior non-state jail felony convictions, the
enhanced punishment range increased to 15 to 99 years. See id. § 12.42(c)(1). The
jury assessed Anderson’s punishment at the minimum allowable term under the law.
See id.; see also Allen, 865 S.W.2d at 474 (discussing fixed punishment ranges).
Accordingly, we conclude beyond a reasonable doubt that the trial court’s comments
did not contribute to Anderson’s punishment. See Tex. R. App. P. 44.2(a).
Therefore, the error, if any, was harmless. We overrule issues two and three.
III. Conclusion
We hold the evidence was sufficient to support the jury’s verdict convicting
Anderson of arson of a habitation. We further conclude that Anderson was unharmed
by the trial court’s comments regarding the classification of his prior felony
convictions to which he had already pled “true.” We affirm the trial court’s
judgment.
16 AFFIRMED.
________________________________ CHARLES KREGER Justice
Submitted on October 6, 2020 Opinion Delivered November 18, 2020 Do Not Publish
Before McKeithen, C.J., Kreger, and Horton, JJ.