### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00225- CR

Broderick Robinson , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 10- 3009 80, H ONO RAB LE CLIF F ORD B ROW N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found Br oderic k Robi n s o n g uilty of two counts of arson of Robert Hea rtl’s habitation and found that he used a d ea d l y weapon in committing the offe nses. The trial court sentenc ed him to thirty y ear s in prison on eac h count to be serve d concur rently

. Appellant now challeng es the leg al sufficie ncy of the evidenc e to suppor t pa rticular elements of the offe nses. We will affirm the judg ment.

BACK GR OUND

Some time befor e the fires on May 10, 2010, appellant and Hea rtl met at a club and had what Hea

rtl descr ibed as a “ve ry

short-term, a cquaintanc e-like f riendship” that led to “ a short phy sical rela tionship a couple of times” that Hea rtl thought had run its course . Acc ording to Hea rtl, howeve r, appellant continued to call him. Hea rtl said that he did not think the rela tionship war rante d

a “bre ak up” and tr ied to distance himself by being aloof and monosy llabic when appellant called.On May 9, 2010, appellant and Hea rtl wer e at the same bar. Hea rtl was with a friend but, noticing that appellant was very intox icated, decide d to ta ke appellant to H ear

tl’s r esidenc e to sober up. Hea

rtl drove appellant’ s car

—a white, older model Merc edes. He did not notice a smell of gasoline in the car. Hea rtl’s frie nd arr ived s epar ately

. When appellant woke up befor e sunrise

on May 10, he arg ued with Hea rtl’s friend motivated by what Hea rtl perc eived to be jealousy

. Appellant and H ear

tl’s friend both lef

t, and Hea

rtl went bac k to sleep. Hea rtl testified that, later that morning of May 10, he was awa kened by the sound of a g ate closing and noticed what he thought was the sun coming up. He then rea liz ed that flames wer e coming out from under an upside-down orang e I g loo container on his front stoop about two fee t from his front door. He opened the door, kicked the container awa y , and exti ng uished the fire with a water hose. Hea

rtl testified that, as he was putting out the fire, he saw appellant driving awa y in the white Merc edes. Hea

rtl said he did not call the police b ec au s e h e thought the incident was over. He testified that his door was sooty and that the sc ree n door wa s damag ed by the flame s. A neig hbor testified that, around 1 1 a. m . o n May 10, she saw an unfamiliar white

s ed an (a Merc edes or BMW) occupie d by a man matching appellant’ s g ener al descr iption wh o

seeme d to be waiting for someone. She saw him g et out of the vehicle car ry ing an orang e I g loo-like drink cooler

. She testified that the cooler rese mbled the burned one in evidenc e except that it was not burned wh en s he saw it. She did not see appellant start a fire, nor did she rec og nize him in a photo lineup. Hea

rtl testified that, over the course of the afte rnoon, he rec eived (but did not answe r) telephone calls from appellant’ s cell phone. Hea rtl decide d to lock the g ate to his y ard. Sometime

2afte r 6 p.m., he hear d appellant rattling the g ate and y elling that he would not be trea ted “like this”

and acc using Hea

rtl of stealing money from the Merc edes. Hea rtl testified that, when he threa tened to c all the police a

bout appellant’s c onduct, appe llant responded “ if y ou think that’ s bad, just wa it until [y ou] see what happens next.” Appellant was driving a pickup truck at that point. Hea rtl called the police, wh o re fe rr ed the matter to the fire depar tment’s arson investiga tor. The investiga tion turned up evidenc e that the I g loo fire was set using a plastic bottle as a Molotov cockta il. After the investiga tors left sometime bef ore 10 p.m., He artl we nt to sleep. He was awa

kened by a neig hbor pounding on his door around 11 p.m. Hea rtl smelled smoke in his room and left his home. The neig hbor testified that he saw the flames on the outside of Hea rtl’s house and ran over to fig ht the fire. The neig hbor was able to douse the big flames, but the fire continued to smolder in the wall and inside the storag e closet adjac ent to Hea rtl’s bedroom. A police office r testified that he saw six -foot flames on the house. The fire depar tment arr ived and exti ng uished the fire. A firef ighte r found a melted g as can at the scene , bu t d i d not find any g aspowered eq uipment in the storag e closet. Hea rtl testified that he did not own a g asoline can. He testified that the doors to the stora g e close t were damag ed, items inside the closet wer e destroy ed, and that the dr

y wall by his bed was bur

ned by the fire

. Arson investiga tors, including Mike Crabill, returne d and noted the “allig atoring ” of the exterior wall, which in these circ umstances indicates a highe r-than- normal tempera ture possibly fuele d by an acc eler ant. Crabill testified that t h e s ec o n d fire was started using a two-g allon red plastic g asoline conta iner. L ab testing showed the pr esenc e of g asoline in the conta iners fr om the

scene connec ted with both fires. Crabill testified that whoeve r set the fires did so with the intent to

3damag e or destroy the habitation beca use “that would be the only rea son t o s et fi re t o the hous e.” He testified that the first fire was set in front of the only door and windows th at co u l d b e u s ed to

esca pe. He said that the second fire had the added dang er of occur ring when many people are aslee p and susceptible to unwitting smoke inhalation. Crabill testified that both fires wer e delibera tely set.

Appellant’s housemate testified that g as-r elated items wer e missing from the g ara g e at a house appellant share d with h i m an d t wo other men. The housemate t estified that he noti ced afte r May 10 that he was missing a fade d red plastic two-g allon g as can along wi t h g asoline from

a s t o ra ge ca n at his house. He also rec alled seeing an orang e I g loo-sty le cooler in the are a of t h e gar age wh er e ap pellant kept items, but said that cooler was no longe r in the g ara g e. He testified that, on May 10, he saw appellant driving his pickup truck betwee n 8 and 9 p.m. and later saw him at t heir house at 11: 15 p.m. He said that ap p ellant di d not smell of gasoline or have any appar ent singe marks. A second arson investiga tor, J oe L oug hran, fo l l owed up on Crabill’s work. On May 11, 2010, he went to appellant’ s house to see if the white Merc edes was there

. He saw appellant pulling out of the drivew ay in the M erc edes, and noticed that it and a pickup t ruck w ere filled with persona l belong ings as if someone was moving. L oug hran spoke with appellant, who L oug hran said was “intent on explaining why the car had an odor of g as o l i n e. ” L o u g hran said that appellant said that someone had drilled holes into his g as tank and had remov ed a g rounding wire meaning to cause the car to explode. L oug hran testified that he did not see evidenc e that

corr esponded w ith appellant’s story , but did not photogra ph the abse nce of

that corr elation. Afte r their conver sation—some of which was rec orded and play ed for the jury —L oug h ran arr ested

4appellant. L oug hran t estified that, over the course of two interviews—one at appellant’ s house

and the second in jail—appellant initially denied knowing Hea rtl, then said Hea

rtl was g oing to buy

a vehicle from him, then said Hea rtl had stolen money from him. Appellant initially denied having been near Hea

rtl’s ho m e, t h en admitted having “wor ds” over some missing money . Appellant admitted having the cell phone number from which Hea rtl rec eived sever al calls on May 10. Appellant’s phone rec ords indicated that he made calls from near Hea rtl’s house near the time of both fires.

DISCUSSIO N

Appellant challeng es t h e leg al sufficie ncy of the evidenc e to support finding s

nece ssary to the guilty verdic ts on two counts of arson. A person c ommits arson by starting a fire with intent to destroy or damag e a habitation knowing that it is within the limit s of an incorporated city or t own. Tex. Penal C ode § 28.02. By his first issue , ap p ell ant contends that the evidence is leg ally insufficient to prove bey ond a reasonable doubt that the per petra tor intended to damag e or destroy a habitation by starting a fire as alleg ed in Count I

. By his second issue, appellant contends that the evidenc e is leg ally insufficient to prove bey ond a rea sonable doubt that he was the arsonist.

Stand ard of review

Due proce ss require s that the State prove, bey ond a rea sonable doubt, ever y element of the crime char g ed. S

ee Ja ck son v. Virginia , 443 U.S. 307, 313 (1979). When revie wing the sufficie ncy of the evidenc e to support a conviction, we consider all of the evidenc e in the light most favor able to the verdic t to deter mine whether any rational trier of fac t could have found the essential

5elements of the offe nse bey ond a reasonable doubt. Id. at 319. The sufficienc y of the e vidence is

measure d by ref

ere nce to the elements of the offen s e as d ef ined by a hy

pothetically corr ect jury char g e for

the ca se. Villarreal v. State , 286 S.W .3d 321, 327 (Tex. Crim. App. 2009). I n deter mining the leg al suffic iency of the evidenc e, we must consider all evide nce in the rec ord, whether direc t or circ umstantial or proper ly or improperly admitted. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). W e re v i ew al l the evidenc e in the light most favor able to the verdic t and assume that the trier of fac t resolved conflicts in the testimony , weig hed the evidenc e, and drew rea so n ab l e i n fer ence s in a manner that supports the verdic t. Jack son , 443 U.S. at 318. A leg al-suff iciency revie w require s us to defe r to the jury ’s deter minations of the witnesses’ cre dibilit y and the weig ht to be g iven their testimony

. Brooks v. State , 323 S.W .3d 893, 899 (Tex. Crim. App. 2010). The jury , as exclusive judge of the fac ts, weig hs and resolves conflicts in the evidenc e and draw s rea sonable i n fe re n ces there from. Clayton , 235 S.W .3d at 778; see Tex. Code Crim. P roc. a

rt. 38.04.

Intent re garding the f

ire The most direc t evidenc e conce rning intent is that the fires wer e set using acc eler ants on the porc h of a w ooden fr ame house and adja cent to the doors of the storag e room of the house. I n the appar ently short time the first fire burned, the fire cause d smoke damag e to the wooden door and damag ed the scre en sufficie ntly to r equire repla ceme nt. The second fire burned hot enoug h to

cause the surfa ce to “ alligator,” and it sprea d enoug h to burn a hole in the be droom wall. There is

no evidenc e that either fire was set with an int ention other than da mag ing the habitation. Viewe d

6in the light most favor able to the verdic t, this evidenc e is sufficie nt that a rational trier of fac t could

find bey ond a re asonable doubt that the perpe trator intende d to damag e the ha bitation. Identity of arson ist in b oth counts

Appellant contends that the evidenc e was insufficient to show his g uilt. I ndeed, there is no t es t i m ony that any one saw appellant start the fires. Appellant’s fing erpr ints wer e not lifted from the items used to start the fires. No phy sical evidenc e was taken from appellant showing that he had g asoline on him or other indicia that he had sta

rted fir es. Circumstantial evidenc e linked appellant to the fires, h o wever. Circumstantial evidenc e is a s probative as direc t e vidence in e stablishing g uilt, and circ umstantial e vidence alone

can be sufficie nt to establish g uilt. Ho oper v. State , 214 S.W .3d 9, 13 (Tex. Crim. App. 2007). J uries can draw multipl e rea sonable infere nces as long as eac h infere nce is supported by the evidenc e prese nted at trial, althoug h they cannot permissibly rea ch conclusions based on mere specula tion or fac tually unsupported infere nces or presumptions. Id. at 15. “[A]n infere nce is a conclusion rea ched by considering other fac ts and deducing a logic al conseque nce from them,” while “[s] pecula tion is

mere theorizing or g uessing about the possible meaning of fac ts and evidenc e prese nted.” Id

. at 16.

Evidence that the fires wer e set using g asoline and small container s is unchalleng ed. Appel l an t ’s h o u s emate testified that g asoline and items like those used to set the fires had been prese nt i n t h e gar ag e he and appellant share d and wer e no longe r there afte r the fire. Hea rtl’s neig hbor saw the driver of a white car like appellant’ s car ry ing a cooler like the one found char red in Hea rtl’s y ard toward Hea

rtl’s house. Appellant’s car undisputedly smelled like g asoline the day

7afte r the fires, and investig ators sawnothing c onsistent with appellant’s explanation for that odor.

This evidence connec ts appellant to the mea ns used to set the fire s. Appellant’s cell phone rec ords place d him near the site of the fires near the time eac h fire was set and whe n Hea rtl testified that appe llant threa tened him. Hea rtl and his neig hbor bot h testified that they saw a white Merc edes, like the one appellant was found driving th e n ex t d ay , pulling awa

y fro m He artl’s house driven by a man who looked like appellant. This evidenc e

connec ts appellant to the sce ne of the fires a t the time they wer e set. Hea rtl testified that appellant was jealous and ang ry ear ly on the morning of May 10, that appellant drove awa

y from his house afte r the first fire, that ap p el l an t called throug hout the afte rnoon, and that appellant r eturne d to Hear tl’s house and thre atene d him that evening

. The fire investiga tor said that damag ing the house was the only rea son to set the fires. The fac t that the fires

m i gh t have been bigg er does not neg ate the intent to damag e the house. This evidenc e connec t s appellant to the intention to set the fire s.

L oug hran testified that, the day afte r the fires, appellant’ s vehicles wer e packe d with belong ings as if “someone ” was moving, and appellant could not tell L oug hran wher e he was g oing to be later. This evidenc e support s an i n fer ence of an intent to flee from which a fac t finder may infer g uilt. See Clayton , 235 S.W .3d at 780.

The jury weig hed this testimony and the cre dibilit y of the witnesses—including the lack of ey ewitness testi mony of appellant setting fires, Heartl’s criminal history , and the rec ently 1

Hea rtl had two convictions for possession of a controlled substance and a third for robber y . 1 He se rved thre e y ear s in prison for those off enses.
8ended rela tionship—and found appellant g uilty on both counts. Viewe d in the light most favor able

to the verdic t, this evidence c ollectively is leg ally sufficie nt to support the verdict.

CONCLUSION Finding no reve rsible er

ror pr esente d, we a ffirm the judg ment.

J eff Rose, J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Rose Affir med Filed: June 21, 2013 Do Not Publish

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