Davis v. State

630 S.W.2d 532, 1982 Tex. App. LEXIS 4174
Court of Appeals of Texas·Decided March 24, 1982·No. 07-81-0008-CR·Published·Cited by 12 cases

Opinions

DODSON, Justice.

By grand jury indictment, John Davis III, the appellant, was charged with the offense of arson. To enhance punishment, the indictment further alleged a prior conviction for the offense of fondling. The jury found the appellant guilty of arson and assessed his punishment at twenty-five (25) years in the Texas Department of Corrections. On appeal, the appellant brings four grounds of error. Concluding that the appellant’s grounds of error fail to present cause for disturbing the judgment, we affirm.

By his fourth ground of error, the appellant maintains that the circumstantial evidence relied on by the State is insufficient to prove the offense of arson. The unchallenged indictment in this case alleges that on or about 5 July 1975, the appellant knowingly and intentionally started a fire with the intent to damage and destroy a building without the effective consent of Mary Yerger, the owner.

Dan Rorabough, a policeman for the City of Amarillo, testified that on 5 July 1975, he was patrolling in the vicinity of Medical Manor Motel at 5703 Amarillo Boulevard West. The officer stated that at approximately 1:35 a. m., he saw fire and smoke coming from the back portion of the apartment-office at the motel. He called the fire department and made an investigation to determine the exact location of the fire. He discovered that the laundry room, located in the rear portion of the apartment-office building was on fire. Officer Rora-bough attempted to put out the fire, but it was not completely extinguished until the fire department arrived.

Mrs. Yerger, the owner, stated that she did not give the appellant or anyone else permission to burn the building, and she testified concerning the damages to the laundry room. The evidence also shows that on 5 July 1975 the appellant resided on the west side of the motel, as did Walter O’Boyle, one of the State’s key witnesses.

Shortly after midnight on 5 July 1975, Mr. O’Boyle noticed a figure on the east side of the motel, across the parking lot, at the carport for unit 14. The figure disappeared in front of the automobile in that carport and, shortly thereafter, Mr. O’Boyle saw, in front of that automobile, a flame, as if something were burning. The flame died out in a few seconds.

The figure, which Mr. O’Boyle was unable to identify at that time, proceeded to the carport for unit 17. Again there was a flame. This one appeared to the witness to be from a rolled-up piece of paper burning at both ends. Mr. O’Boyle caught a glimpse of the figure at the carport in the light created by the flame, but he was still unable to identify the figure from that glimpse. This flame, too, died out in a few seconds. The figure proceeded to an air conditioner unit on the south end of the complex, where another flame appeared from a rolled-up piece of paper. This flame, like the others, did not last long. The figure then proceeded to the west side of the motel and disappeared from view. Mr. O’Boyle then either turned his attention to the television program he had been watching or went to bed. Between 12:40 a. m. and 1:00 a. m., Mr. O’Boyle heard footsteps. He looked outside, and a few minutes later he saw the appellant clearly in the parking lot lights coming from the laundry room without any linen. The appellant’s build, manner of walking, and facial characteristics matched those of the figure Mr. O’Boyle had earlier seen at the carports.

The appellant disappeared on the west side of the complex. Mr. O’Boyle went to bed. A few minutes later, fire trucks arrived on the scene to put out a fire in the laundry room.

[535] The fire inspector who investigated this fire on 7 July 1975 testified that the fire had not been caused by such things as an electrical malfunction or the water heater, but that, after eliminating all other causes, it was his opinion that the fire had been set and that it had been burning from thirty to forty minutes before it was put out — i.e., from approximately the time Mr. O’Boyle had seen the appellant coming from the laundry room. Specifically, the inspector testified as follows:

Q. And what material was involved in that fire?

A. We had combustible material, linens, bedspreads, wood, towels, sheets and so forth stored in these shelves.

Q. That material had caught fire, is that correct?

A. Uh-huh.

Q. Was there anything — other materials that you found in that area where the fire was confined to?

A. There was also some paper.
Q. And was that paper burned?
A. Yes.

Q. And did you draw — were you able to draw any type of conclusion from that, a finding of that burned paper in that fire in that area there?

A. I had suspected the fire had been set by this paper.

Q. And through your process of elimination and eliminating, as you said, the other causes of the fire, what was your final analysis, your final conclusion, as far as this fire was — the fire in this laundry room was concerned?

A. It was my opinion the fire was set.

In deciding the appellant’s sufficiency of the evidence challenges, we must, viewing the evidence in the light most favorable to the verdict, Clark v. State, 543 S.W.2d 125 (Tex.Cr.App.1976), determine whether there was evidence from which the jurors, being given the circumstantial evidence charge, might reasonably have concluded that every reasonable hypothesis other than the defendant’s guilt was excluded. Flores v. State, 551 S.W.2d 364 (Tex.Cr.App.1977). The defendant in Miller v. State, 566 S.W.2d 614 (Tex.Cr.App.1978), was convicted of arson on the basis of circumstantial evidence no greater than that presented here. In that case, the defendant was seen near his restaurant, approximately ten minutes before a fire in the restaurant was observed and reported, trying to notify potential customers and his employees that the restaurant would be closed that day. He also left the scene in a hurried manner, running two stop signs, and later asked his cook not to mention having seen him that morning. The Court of Criminal Appeals found this evidence to be sufficient to support the conviction.

In the present case, the jury could reasonably have found that, on a night when someone whose build, whose manner of walking, and whose facial characteristics resembled appellant’s, had attempted to set three fires before disappearing on the side of the motel on which appellant resided, and on a night when appellant was seen leaving the laundry room without any laundry at approximately the time when the fire had started, the hypothesis that it was someone other than the appellant who had set the laundry room fire was, if reasonable, excluded by the evidence.

Free access — add to your briefcase to read the full text and ask questions with AI

Davis v. State, 630 S.W.2d 532, 1982 Tex. App. LEXIS 4174 (Tex. Ct. App. 1982).

630 S.W.2d 532 (Davis v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Fred C. Thomas
453 S.W.3d 1 (Court of Appeals of Texas, 2014)
People v. Mitchell
825 N.E.2d 1241 (Appellate Court of Illinois, 2005)
Spence v. State
758 S.W.2d 597 (Court of Criminal Appeals of Texas, 1988)
McFadden v. State
728 S.W.2d 444 (Court of Appeals of Texas, 1987)
Rios v. State
718 S.W.2d 730 (Court of Criminal Appeals of Texas, 1986)
Massey v. State
717 S.W.2d 768 (Court of Appeals of Texas, 1986)
Williamson v. State
716 S.W.2d 591 (Court of Appeals of Texas, 1986)
Rios v. State
688 S.W.2d 642 (Court of Appeals of Texas, 1985)
Lyles v. State
653 S.W.2d 775 (Court of Criminal Appeals of Texas, 1983)
Davis v. State
630 S.W.2d 532 (Court of Appeals of Texas, 1982)