AT AUSTIN
NO. 3-93-211-CR
WALTER RICHARD HAMPTON,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. CR92-024, HONORABLE FRED CLARK, JUDGE PRESIDING
Walter Richard Hampton was charged with arson, for allegedly setting fire to the building that housed his business, Hill Country Tires, in New Braunfels, Texas. See Tex. Penal Code Ann. § 28.02 (West 1994). The jury found appellant guilty, and the trial court sentenced him to five years' confinement, probated, in the Institutional Division of the Texas Department of Criminal Justice, fined him $2,500, and ordered him to pay restitution of $5,020. Appellant brings five points of error challenging his conviction. Appellant's first two points of error challenge the factual and legal sufficiency of the evidence, and his third through fifth points of error allege that he was denied a fair trial because of the allegedly improper trial conduct of the district attorney. We will affirm the conviction.
Appellant challenges the legal sufficiency of the evidence supporting his conviction in point of error one and the factual sufficiency of the evidence supporting his conviction in point of error two. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, 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 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). When conducting a factual sufficiency review, we do not review the evidence in the light most favorable to the verdict. Instead, we consider all the evidence equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319 (Tex. App.--Austin 1992, no pet.). We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed).
Appellant principally relies upon Massey v. State, 226 S.W.2d 856, 859 (Tex. Crim. App. 1950) and subsequent cases, which stand for the proposition that motive and opportunity alone are not sufficient to establish that an arson defendant set fire to a building.
Texas Penal Code section 28.02(a)(2)(A) provides:
A person commits an offense if he starts a fire or causes an explosion with intent to destroy or damage:
. . .
(2) any building, habitation, or vehicle:
(A) knowing that it is within the limits of an incorporated city or town;
Tex. Penal Code Ann. § 28.02(a)(2)(A) (West 1994). The mere fact that a building has been destroyed by fire does not show that the crime of arson has been committed by anyone; there must be evidence that the fire was of an incendiary origin. Faulk v. State, 608 S.W.2d 625, 627 (Tex. Crim. App. 1980). Furthermore, the State must establish intent on the part of the defendant. The requisite intent for arson may be inferred from the defendant's conduct, and while the intent cannot be inferred from the mere act of burning, it may be found from all the facts in the case. Miller v. State, 566 S.W.2d 614, 618 (Tex. Crim. App. 1978).
Our review of the record reveals that the State did not merely establish that Appellant had motive and opportunity to start the fire. See Massey, 226 S.W.2d at 859. The State also established that the fire was of an incendiary origin, and provided evidence linking the fire to appellant.
Extensive evidence in the record indicates that the fire was intentionally set. Evidence indicates that the fire spread rapidly. An EMS driver passed by the building at 12:30 a.m. and saw no signs of fire. When firefighters arrived at the blaze at 12:53 a.m., the fire was already "intense," with flames coming up through the roof. Les Rowland, an insurance investigator who examined the fire scene, testified that he found numerous "red flags" that indicated arson. Portions of the concrete floor of the building evidenced "spalling," a condition in which chunks of concrete are raised up after exposure to intense heat. Burn patterns throughout the building indicated use of an accelerant. Most obvious were the burn patterns on the stairs leading to the basement, which indicated that a flammable liquid had been poured down the stairs. The burns on the stairs also indicated a "fast intense heat."
Kerosene was present in samples of wood taken from the building. Shelley Goodwin, appellant's daughter who worked at Hill Country Tires as a bookkeeper, testified that there normally would not be kerosene on the building floor. Rowland also testified that when he interviewed appellant after his investigation, appellant told him that no kerosene was stored in the building. There is testimony in the record that kerosene is commonly used in the commission of arson because it is highly flammable but does not evaporate quickly.
Rodney Fuchs, an electrical engineer who also investigated the fire scene, testified that the fire was not the result of an electrical short circuit. Fuchs testified that fires started by electrical problems are slow-starting fires. Fuchs also testified that he found a space heater in the bathroom of the building that had been plugged in during the fire. Shelley Goodwin testified that at this time of year, the heater was normally kept by her desk, not in the bathroom. There was also kerosene near the electrical heater.
Having established conclusively that the fire resulted from arson, the State then proceeded to link appellant to the fire through circumstantial evidence. Shelley Goodwin testified that she stopped by the store with her father at approximately 6:30 p.m. on the evening of the fire. She testified that her father spent approximately five minutes in the store. She further testified that this would have been enough time to allow her father to walk to the back of the store and unlock the rear entrance. Firefighters testified that when they arrived at the burning building, they found no signs of forced entry. Investigations of the fire scene the next day revealed that all doors and windows of the building had been locked at the time of blaze, except the building's rear entrance. This door showed no signs of forced entry.
While appellant reported that he had lost several hundred tires, inner tubes, tools worth approximately $38,000, and pieces of heavy equipment in the fire, Rowland could find no remains of these goods in the burned building. Instead, Rowland found empty tire racks and near-empty tool boxes. Furthermore, while appellant had reported that a steam cleaner and an air compressor were among the items destroyed in the fire, appellant later sold the steam cleaner and listed the air compressor as collateral for a loan. Additionally, Rowland testified that file cabinets were found with all three drawers open, in a "stair-step" fashion; (1) testimony indicates that these file cabinets, which contained business records, were normally closed.
Finally, appellant was having "extreme" business problems at the time of the fire. He was several hundred thousand dollars in debt, and his tire business was not doing well. Only one month before the blaze, he had reactivated an insurance policy which he had let lapse a few years before. All of the above establish much more than motive and opportunity on the part of appellant. The numerous "red flags," such as the lack of fire-damaged inventory in the building, overinflated losses, and the lack of any sign of a forced entry, all circumstantially point to appellant's guilt. On appeal, appellant does not point to additional evidence in the record that contradicts the above evidence. Instead, appellant points to testimony which creates an uncertainty as to the manner in which the fire was ignited. However, in light of the above testimony establishing that the fire was a result of arson, the State's failure to establish the method of ignition is not fatal to its case. Having reviewed and weighed all evidence in the record, we find it both legally and factually sufficient to support appellant's conviction. Appellant's first and second points of error are overruled.
In his third, fourth, and fifth points of error, appellant contends that various instances of improper trial conduct on the part of the prosecutor resulted in appellant being denied a fair trial. Point of error three points to questions asked by the prosecutor that appellant claims were inflammatory. Point of error four focuses on allegedly improper hypotheticals. Point of error five complains of sidebar comments made by the prosecutor. In his brief, appellant addresses these points together. Appellant concedes that each of the complained-of actions alone does not constitute reversible error. Instead, appellant contends that "the cumulative effect of the District Attorney's actions rose to a level of prosecutorial misconduct which prejudiced the appellant's right to a fair trial, in that the jury had its attention constantly focused on improper evidence and argument."
In all but two of the instances of alleged improper conduct, appellant either made no objection, made an objection but obtained no ruling from the trial court, or received a favorable ruling but pursued no further relief. Error regarding the examination of witnesses or the admission of evidence is not preserved for appellate review absent a timely objection. Cisneros v. State, 692 S.W.2d 78, 82 (Tex. Crim. App. 1985). Furthermore, when a defendant obtains all relief requested, no complaint is preserved for our review. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). Appellant therefore waived any complaint regarding the above conduct.
The complained-of conduct that was not waived involved the prosecutor's questioning of witnesses Juan Rodriguez, a former employee of appellant, and insurance investigator Les Rowland. In both cases, defense counsel objected to the questions before the witnesses answered. The objections were then sustained and the jury instructed to disregard the questions. Appellant moved for a mistrial, which the trial court overruled.
The asking of an improper question, by itself, seldom requires a mistrial. Swallow v. State, 829 S.W.2d 223, 226-27 (Tex. Crim. App. 1992); Hernandez v. State, 805 S.W.2d 409, 413 (Tex. Crim. App. 1990). "In most cases, any harm from such a question may be cured by an instruction to disregard the question." Hernandez, 805 S.W.2d at 413-14. "A mistrial is required when the question is `clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds.'" Id. at 141 (citing Gonzales v. State, 685 S.W.2d 47, 49 (Tex. Crim. App.), cert. denied, 472 U.S. 1009 (1985)). Having reviewed the relevant portions of the record, we conclude that any harm that resulted from these questions was cured by the trial court's instructions. Furthermore, we conclude that all three points, considered together, do not constitute cumulative error requiring a reversal. Appellant's third, fourth, and fifth points of error are overruled.
The judgment is affirmed.
Mack Kidd, Justice
Before Chief Justice Carroll, Justices Kidd and B. A. Smith
Affirmed
Filed: August 31, 1994
Do Not Publish
1. 1 The record contains testimony that drawers open in this fashion would facilitate the burning of their contents.