Opinion issued November 20, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00004-CR
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KELVIN WAYNE WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case No. 1407407
MEMORANDUM OPINION
Appellant was convicted of felony arson and sentenced to 55 years’
confinement and assessed a $10,000 fine. In two issues, he argues that the jury’s
finding that he used or exhibited a deadly weapon was improper, and that the
evidence is insufficient to support his conviction. We affirm.
EVIDENCE AT TRIAL
In 2010, appellant lived with his girlfriend, Charlie Davis, and her three
children at Davis’s townhouse on Twister Pine Court in Houston. Davis’s
townhouse was near the middle of a row of six attached townhomes. Each
townhouse had a front door facing the street and a garage at the back of the unit
facing an alley. In October of 2010, all six townhouses in Davis’s building were
occupied.
Davis testified that, on October 15, 2010, her car broke down as she was
trying to leave that morning. A neighbor, Aaron Greenwood, was passing by and
offered to go find someone to look at the car. Greenwood returned with his friend,
Willow. At some point during the day, appellant came home and was angry to
discover Greenwood and Willow in the garage working on Davis’s car. According
to Davis, appellant’s anger appeared to be jealousy driven, as appellant is a
mechanic and was irritated that Davis asked someone else for help.
Appellant pulled a knife on Greenwood and Willow, threatened to “kill all of
you–all,” and ordered them to leave. Appellant chased Greenwood down the
street. When Greenwood got to his car, he pulled out a tire iron to defend himself.
Eventually, Greenwood got in his car and drove off. Appellant then also left.
Someone called the police about the incident, and officers came out to the area.
They were not able to locate appellant, but talked to Greenwood and Davis.
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Although Davis did not know Greenwood well and Greenwood had never
previously been to her home, Greenwood came back to Davis’s townhouse and
ended up spending a large part of the day with Davis. Greenwood and Davis drank
beer, played video games, and chatted with Davis’s children. Greenwood left
sometime after dark and Davis settled in with her kids on the couch to watch a
movie. Appellant later called and asked Davis to come pick him up. She testified
that it was an odd request, as he had his own vehicle with him. She told him to
drive himself home, which appeared to anger him.
Davis and her children fell asleep on the couch late that night watching their
movie. Davis woke up sweaty about 2:00 a.m. and immediately got up to go check
the temperature on the thermostat. When she turned around to return to the sofa,
she saw that the townhouse’s front window, which was behind the sofa, was
orange. She then looked over at the front door and saw flames coming in from
under the crack of the door.
She frantically woke up her kids and raced them towards the garage at the
back of the townhouse. When she discovered that the garage door was hot, she
realized that the garage was on fire as well. She escaped through a sliding glass
door to a patio, and then she and her kids scaled a fence to the neighbors’ patio.
They pounded on the neighbors’ patio door to rouse them, and then they all
escaped through the neighbors’ front door.
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In the front yard, they saw Greenwood and appellant rolling around on the
ground fighting. Appellant’s clothes were on fire. Davis saw appellant’s Ford
Explorer—with its engine still running and the driver door open—parked right in
front of her townhouse. Davis and her neighbors ran up and down the building
getting residents out while they waited for the fire department to arrive.
Another resident of the townhouse building testified to running outside after
hearing Greenwood and appellant fighting. Greenwood called out to her to call the
police at the same time she realized that the building was on fire. She called the
police and assisted in waking up neighbors.
Greenwood testified that, before the fire, he had been standing talking with a
friend under a tree across from his own house when appellant drove by in his Ford
Explorer and turned down the alley behind the townhouse building. Greenwood
starting walking in that direction to confront appellant because he was still angry
about appellant threatening him earlier in the day. By the time Greenwood made it
to the back alley, he saw appellant climb into his truck and drive around towards
the front of the townhouse. Greenwood then set off to follow appellant around
front. When Greenwood got to the front of the townhouse, appellant was there
with a gas can throwing gasoline on the walls and all around Davis’s townhouse.
Greenwood ran toward appellant, pushed him against the wall, and suddenly there
was a “whoosh” from flames started by the lighter in appellant’s hand. Appellant’s
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clothes caught fire and then appellant tried to catch Greenwood on fire, telling him,
“I’m going to burn your black ass up, too.” Greenwood grabbed appellant and
flipped him to the ground. That extinguished the fire on appellant, and the two
started rolling around on the ground fighting. Greenwood was also yelling, trying
to rouse people in the homes to alert them that their homes were on fire. Appellant
eventually passed out and was loaded into an ambulance.
Ultimately, it took seventy-five firefighters more than ten hours to put out
the fire. The entire townhouse building was destroyed, and Davis, her family, and
their neighbors lost everything in the fire. Davis and her kids spent a few hours at
Greenwood’s house, moved to a hotel for a few nights, and then to a Red Cross
shelter. Davis and her family eventually moved to Mississippi.
Various expert witnesses, including arson investigators, testified at trial that
(1) the fire was set by an ignitable liquid; (2) the fire had two unconnected points
of origin (i.e., the garage and in the front of the townhouse); (3) a melted gasoline
can was found in front of the townhouse; and (4) appellant’s clothes had gasoline
on them. Consistent with Greenwood’s testimony, surveillance tapes were also
introduced at trial showing (1) a Ford Explorer driving into the back alley, (2) a
flash of the fire starting behind the building in the garage area, and (3) the vehicle
driving back around to the front of the townhouses while light flickering from the
garage fire reflects against the trees. The Explorer stops in front of the townhouse
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and then the driver gets out and walks towards the front door of the townhouse,
which is outside the view of the camera. A second huge flash is seen, followed by
blurry footage of two people tussling on the ground.
Finally, an “Enrollment for Life Insurance” form was introduced at trial.
The form was found in appellant’s pocket in an addressed envelope when he was
taken to the hospital. The application identified Davis as the “Proposed Insured,”
identified appellant as the “Beneficiary,” and identified the beneficiary’s
“Relationship to Proposed Insured” as “husband.” The form contained a signature
for Davis, and was dated October 13, 2010, three days before the fire. Davis
testified at trial, however, that she had not seen the application before, and that—
although it purportedly bore her signature—the handwriting on the application was
not hers, it was actually appellant’s. Davis’s daughter likewise testified that none
of the handwriting on the life insurance application was her mother’s.
The jury convicted appellant of arson and found that he “used or exhibited a
deadly weapon,” i.e. fire. Appellant plead true to a prior conviction of aggravated
rape, and the jury assessed punishment at 55 years’ confinement and a $10,000.00
fine. The court entered judgment in accordance with the jury’s verdict, and
appellant timely appealed.
ISSUES ON APPEAL
On appeal, appellant brings forth the following issues:
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1. “The deadly weapon finding was inappropriate because the use
of fire was not intended as a weapon.”
1. “The evidence presented at trial was insufficient to support a
conviction for arson.”
FIRE AS A “DEADLY WEAPON”
In his first point of error, appellant argues that (1) this Court’s decision in
Mims v. State, 335 S.W.3d 247 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d),
holding that fire can be a deadly weapon in an arson case, was wrongly decided,
and (2) in any event, this case is distinguishable from Mims.
A “deadly weapon” is defined as “(A) a firearm or anything manifestly
designed, made, or adapted for the purpose of inflicting death or serious bodily
injury; or (B) anything that in the manner of its use or intended use is capable of
causing death or serious bodily injury.” TEX. PENAL CODE ANN. § 1.07(17)
(Vernon Supp. 2014). In Mims, the defendant intentionally set an apartment
building on fire, and one of its residents died in the fire. 335 S.W.3d at 248. On
appeal, the defendant challenged the trial court’s finding, included in the judgment,
that the defendant “used or exhibited a deadly weapon, namely, fire, during the
commission of a felony offense.” Id. Specifically, the Mims defendant argued that
fire should not qualify as a deadly weapon in an arson case because “the act of
starting a fire that results in bodily injury is an essential element of the offense of
first-degree arson.” Id. at 251. Accordingly, the defendant argued, “such conduct
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cannot both be an element of the charged offense and be used to support a deadly
weapon finding.” Id. We rejected that argument, noting that “[s]everal Texas
courts of appeals have recognized that conduct which is an element of an offense
can also be the basis of a deadly weapon finding.” Id.; see also McNeil v. State,
398 S.W.3d 747, 755 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (rejecting
argument that deadly weapon paragraph in indictment was redundant of the
underlying crime of arson).
Here, appellant insists that Mims was wrongly decided because a deadly
weapon finding “would be essentially automatic in every arson case,” as “every
arson case involves the use of fire.” Appellant cites no authority in support of his
argument that Mims was incorrectly decided, and Mims’s rejection of appellant’s
arguments and holding that the use of fire can support a deadly weapon finding in
an arson case is binding precedent, see Medina v. State, 411 S.W.3d 15, 20 n.5
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (“absent a decision from the
Court of Criminal Appeals or this court sitting en banc that is on point and contrary
to the prior panel decision or an intervening and material change in the statutory
law, we are bound by our prior panel decision”), that has since been applied and
followed by another panel of this Court. McNeil, 398 S.W.3d at 755.
Alternatively, appellant insists that the facts here are distinguishable from
Mims, and that—as a matter of law—fire cannot be considered a deadly weapon in
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this case. Appellant points out that, in Mims, a woman died in the fire set by the
defendant. 335 S.W.3d at 249. Similarly, in Taylor v. State, 735 S.W.2d 930, 949
(Tex. App.—Dallas 1987) abrogated on other grounds by Gaines v. State, 761
S.W.2d 2 (Tex. Crim. App. 1988)—the case we relied upon in Mims—the
defendant’s husband died in the fire set by the defendant. According to appellant,
this case is thus distinguishable because “no one was injured in the fire.”1
As noted above, a deadly weapon can be “anything that in the manner of its
use or intended use is capable of causing death or serious bodily injury.” TEX.
PENAL CODE ANN. § 1.07(17)(b) (emphasis added). Although “there must be
evidence that others were actually endangered” rather than “a hypothetical
potential for danger if others had been present” to sustain a deadly weapon
finding,2 Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003), there is no
requirement that anyone actually be injured. Torching a fully occupied building in
the middle of the night is using fire in a way that “is capable of causing death or
serious bodily injury.” Moreover, appellant set both the front and back of Davis’s
townhome on fire knowing that she and her children were home, in what could
1
He also contends that there would not have been a fire at all if Greenwood had not
attacked him, which ignores the evidence that appellant had already set Davis’s
garage on fire before Greenwood tackled appellant in the front yard.
2
This evidentiary burden does not apply if the legislature has defined a particular
object as a deadly weapon. See Coleman v. State, 145 S.W.3d 649, 651 n.4 (Tex.
Crim. App. 2004) (rejecting argument that, given the specific situation, any risk of
danger from firearms was purely hypothetical because “Section 107(a)(17) of the
Texas Penal Code specifically defines firearms as deadly weapons”).
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only have been a plan to trap them inside with no means of escape. The gratuitous
fact that no resident, firefighter, or bystander was ultimately injured or killed by
the massive resulting fire does not render the evidence insufficient to demonstrate
that fire was used as a deadly weapon in this case.
We overrule appellant’s first point of error.
LEGAL SUFFICIENCY
In his second point of error, appellant argues that the “evidence presented at
trial was insufficient to support a conviction for arson.” He does not dispute that
the fire was a result of arson, but contends that the State put forth insufficient
evidence to establish that he is the person who set the building on fire.
To sustain an arson conviction, the State must show that the accused set the
fire or was “criminally connected therewith.” Merritt v. State, 368 S.W.3d 516,
525 (Tex. Crim. App. 2012). Although the State must prove the defendant was the
one who set the fire beyond a reasonable doubt, it is not required to exclude every
conceivable alternative to a defendant’s guilt. See id. (citing Turro v. State, 867
S.W.2d 43, 47 (Tex. Crim. App. 1993) (explaining that “the evidence is not
rendered insufficient simply because appellant presented a different version of the
events”)).
“When reviewing the sufficiency of the evidence, we consider all of the
evidence in the light most favorable to the verdict to determine whether, based on
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that evidence and the reasonable inferences therefrom, a jury was rationally
justified in finding guilt beyond a reasonable doubt.” Id. (citing Jackson v.
Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781 (1979)). “The jury is the sole judge
of credibility and weight to be attached to the testimony of witnesses.” Id. Juries
are permitted to draw multiple reasonable inferences from facts as long as each is
supported by the evidence presented at trial. Id. We determine whether the
necessary inferences are reasonable based upon the combined and cumulative force
of all the evidence when viewed in the light most favorable to the verdict. Id. at
526 (citing Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). We
presume the jury resolved conflicting inferences in favor of the verdict and defer to
that determination. Id.
“Identity of a perpetrator can be proved by direct or circumstantial
evidence.” Greene v. State, 124 S.W.3d 789, 792 (Tex. App.—Houston [1st Dist.]
2003, pet. ref’d). Here there is both. Appellant does not dispute that the evidence
demonstrates that two separate fires were started, one in the garage of the
townhouse and one at the front of the townhouse. Greenwood provided direct and
unequivocal testimony that he came upon appellant’s spreading gasoline on the
front of the building while holding a lighter and threatening to set Greenwood on
fire too. This “eyewitness’s testimony, alone, can be legally sufficient to support a
guilty verdict.” Castilla v. State, 374 S.W.3d 537, 539 (Tex. App.—San Antonio
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2012, pet. ref’d); see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979)
(“The jury, in all cases, is the exclusive judge . . . of the weight to be given to the
testimony”); Reed v. State, 991 S.W.2d 354, 360 (Tex. App.—Corpus Christi 1999,
pet. ref’d) (“[T]his court may not second-guess the jury, who had the opportunity
to observe the witness’ demeanor, expressions, gestures, and tone during his
testimony.”).
In addition, there is circumstantial evidence that appellant started the fire.
Video surveillance tapes showed the fire in the garage starting in the brief period
between appellant’s driving into the alley that the garage faced and appellant’s
driving back out of the alley towards the front of the townhouse. McLendon v.
State, 167 S.W.3d 503, 509 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)
(evidence that defendant’s car was parked, with lights on, in front of house at 3:00
a.m., and that witness positively identified defendant as person he saw running
away just before witness noticed that house was on fire was sufficient
circumstantial evidence of identity to support defendant’s conviction for arson).
Both Davis’s trial testimony that appellant was angry and jealous and the evidence
that appellant forged the insurance application to obtain insurance on Davis’s life
are evidence of appellant’s motive. Merritt, 368 S.W.3d at 526 (“Although motive
and opportunity are not elements of arson and are not sufficient to prove identity,
they are circumstances indicative of guilt.”).
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We overrule appellant’s second point of error.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. TEX. R. APP. P. 47.2(b).
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Kelvin Wayne Williams v. State
Combined Opinion