### 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. 03-14-00238- CR

Shriya B im an Pat el, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D-1 -DC- 12- 9002 30, H ONO RAB LE DAVID CRAIN, J UDGE P RESIDING

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

The State indicted appellant Shriy a Biman Patel on one count of capital murder and two counts of murder for the death of her husband, Bimal Patel. See Tex. Penal Code §§ 19.02, 19.03. The State elec ted to proce ed only on the capital- murder char g e. The jury found appellant not g uilty of capital murder but g uilty of the lesser- included offe nse of arson causing death and assessed punishment at twenty y ear s’ imprisonment. See id. §§ 12.32, 28.02. On appea l, appellant challeng es the suffic iency

of the e vidence to prove the offe nse of a rson ca using de ath and a lleg es er ror in the jury char g e. We will affir

m the trial court’ s judgme nt.

BACK GR OUND The e vidence in the rec ord shows that appe llant’s husband, Bimal Patel, was ba dly burned in a fire in the couple’ s apar tment on the evening of April 17, 2012, and ultimately died from his injuries. Although a

ppellant and Patel ha d marrie d in I ndia m onths earlier , appellant ha d onlyre cently moved to the United States afte r completing the immigration proce ss from I n d i a. A

neig hbor of the Patels who also worke d for the Travis County Sheriff’ s Offic e was the first person to arr ive at the scene of the fire beca use he was walking his dog when he hear d Patel scre aming for help. The neig hbor testified that Patel “wa s scre aming that his wife set him on fire.” The neig hbor

saw Patel on an apar

tment balcony with skin and smoke coming off of him and ran home to call 911. He then ran to Patel’s apartment, and as he approac hed the front door, he sm elled a “re ally , rea lly strong ” odor of g asoline. When he opened the door, he saw appellant standing at the door holding a purse behind her back. She said “I need to g o” and acte d as t houg h she was g oing to leav e. He said, “You’ re not g oing any wher e,” and s h e t u rned around and walked to a back room of the apar tment. She was not scre aming and “see med pretty calm.” Patel walked in from the patio y elling, “Please help me. My wife set me on fire.” He was bleeding on his a rms, his skin was coming off, and he looked black and char red on his upper body

. Police and para medics soon arr i v ed. A l aw -e n fo rc ement video made outside the apar tment on the night of the fire and admitted into evidenc e at t ri al i ncluded audio in which a police office r stated that Patel told him that Patel had been in the bathtub, t hat appe llant was g oing to g ive him a sensual massa g e and pour oils on him, but that appellant then bur ned him instead. Parame dics transporte d Patel to a hospital. One of the para medics testified that Patel

was scre aming , saying things like, “Why would she do this? ” The emer g ency -room phy sician testified that Patel was “cr itically ill” and scre aming in pain, saying, “Why would any one do this to me? Why would she do this to me? ” The doctor also noted that Patel’s nasal passag es appea red to be pac ked with s omething. Me dical per sonnel transporte d Patel by helicopter

to another hospital.

2The treating phy sician at the new hospital testified that Patel had third-deg ree b u rn s over

seventy -seve n perc ent of his body

. During the following months, Patel had sevente en surg erie s. He ultimately died from his injuries on S eptember 8, 2012, and a medical examiner ruled the death a homicide. I nvestig ators who inspected Patel’s apar tment afte r Patel was taken to the hospital found a five-g allon plastic bucket containing g asoline residue in the hallway near the bathroom. A plastic cup wa s standing upr ight inside the buc ket. I nvestig ators also found a towel and two pa irs of shorts soaked with g asoline on the floor of the apar tment and a g as can with the lid partially open in a closet near the bathroom. The smoke detec tor in the apar tment had been removed from the ceiling , and a sprinkler head in the bathroom and a second one in the hallway near the bathroom had been cover ed with fa

bric a nd tape. A f

inge rprint examiner later identified appellant’ s fing erpr ints

on the bucket, g as can, and materia l taped to the sprinkler heads, including the ad hesive side of a piece of tape

. An ar s o n investigator testified that his investiga tion of the apar

tment led him to

con cl u d e t h at the fire orig inated in the bathroom and that Patel did not start t he fire hi mself. The investigator believed that someone had thrown g asoline into the bathroom onto a lit candle while Patel was ly ing in the bathtub. He f urther te stified that he believe d Patel kicked out the bottom of the bathroom door, w hich had be come se aled shut by the fire , to esca

pe the bathroom. Fur ther e vidence —including sur veillance videos from a Walmart and a g as st ation

near the apar

tment; testimony from a taxi driver; and a re ce i pt from Walmart found in the

3apar

tment—showed that on the day of the fire, appellant purcha sed the tape and candle s found in the apar tment, bought a

g as ca n, and filled the c an with g asoline bef ore r eturning to the apar

tment. During trial, the defe nse argued that Patel committed suicide and that appellant was g uilty only of following hi s instructions and assist ing in his suicide. At t he close of t rial, t he jury found appellant not g uilty of capital murder but g uilty of the lesser- included offe nse of arson causing death. The jury

then assesse d punishment at twenty y ear s’ imprisonment. This appeal f ollowed.

DISCUSSIO N Appellant contends that the evidenc e prese nted at trial is insuff icient to support her

arson conviction and that the trial court err ed in including an instruction on the law of parties in the jury char g e. We will consider e ach issue be low. Sufficiency of

the Evidence When revie wing the sufficie ncy of the evidenc e to support a conviction, we consider all the evidenc e in the light most favor able to the verdic t to deter mine whether , based on that evidenc e and the rea sonable infere nces that can be draw n from it, any rational trier of fac t could have found the esse n t i al el ements of the offe nse bey ond a rea sonable doubt. Jack son v. Virginia , 443 U.S. 307, 319 (1979); Temple v. State , 390 S

. W

. 3 d 341, 360 (Tex. Crim. App. 2013)

. I n our analy sis, we assume that the trier of fac t resolved conflicts in the testimony , weig hed the evidenc e, and drew rea sonable infere nces in a manner that supports the verdic t. Jack son , 443 U.S. at 319; Isassi v. Stat e , 330 S.W .3d 633, 638 (Tex. Crim. App. 2010). We consider only wh et h er the j ury

re ac h ed a ra tional decision. See Isassi , 330 S.W .3d at 638 (“O ur role on appea l is restric ted to

4g uarding ag ainst the rar e occur renc e when a fac tfinder does not act ration al l y . ” (quoting Laster v. State , 275 S.W .3d 512, 517 (Tex. Crim. App. 2009))).

L eg al sufficie ncy of t h e evidenc e is measure d by the elements of the offe nse as define d by a hy

pothetically corr ect jury char g e. See Thomas v

. State , 444 S.W .3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State , 953 S.W .2d 234, 240 (Tex. Crim. App. 1997)). “A hy pothetically

corr ect jury char g e is one that ‘ac curately sets out the law, is authorized by the indictment, does not

unnece ssarily incre ase the State’s burden of proof or unnece s s ar i l y restric t the State’s theories of liability , and adequately des cr i b es t h e particula r offe nse for which the defe ndant was tried.’” Id

. (quoting Malik , 953 S.W .2d at 240). The lawas authorized by the indictment means the statutory elements of the char g ed offe nse as modified by the fac tual details and leg al theories contained in the indictment. See D augherty v . State , 387 S.W .3d 654, 665 (Tex. Crim. App. 2013).

Her e, the State indicted appellant for capital murder and murder. The S t ate then elec ted to proce ed only on the capital- murder char g e and the lesser- included offe nse of arson causing death. The jury

convicted appellant of the lesser- included offe nse. On appea l, a ppellant contends that her conviction for arson causing death should be overturne d beca use the evidenc e prese nted at trial is insufficient to establish that: (1) she intende d to “destroy ” Patel’s ha

bitation as set forth in the application para g raph of the jury char g e; and (2) she had the requisite knowledg e set forth in the arson statute a

nd jury char g e. With respect to the of fense of ar son, the abstra ct portion of the jury char g e stated:

A person commits Arson if she starts a fire, reg ardle ss of whether the fire continues afte r ignition, or cause s an explos ion with intent to destroy or damag e any habitation:

5knowing that it is wit hin the limit s of an incor porate d city

or town or knowing that it is l ocate d on proper ty belong ing to a

nother or when the person is rec kless about whether the burning or explos ion will endang er the life of some individual.

The a pplication para g raph of

the jury char g e stated:

Now bear ing in mind the fo re go i n g instructions, if y ou believe from the evidenc e bey o n d a rea sonable doubt that the defendant, S hriy a Biman Patel, on or about the 17th day of April, 2012 in the County of Travis and State of Texas, did then and there start a fire, reg ardle ss of whether the fire continued afte r ignition, or cause d an explos ion with intent to destroy a habitation occ upied by Bimal Patel knowing that it wa s within the limit s of an incorporated city , to wit: Austin, Texas and/or knowing th at i t was located on proper ty belong ing to another , to wit: Camden Hunting ton and/or Shriy a Biman Patel was rec kless in so doing by consciously disreg arding the risk that the fire would endang er the life of B iman [si c] Patel And the s ai d Shriy a Biman Patel by rea son of the commission of said offe nse did there by cause death to be suffe red by Biman [si c] Patel, y ou will find the defe ndant g uilty of Arson and so say by y our verdic t, but if y ou do not so believe or if y ou have a reasonable doubt there of, y o u wi l l fi nd the defendant not g uilty of t he offense of Arson and so sa

y by y our ver dict.

We will address ea ch of a ppellant’s ar g uments separ ately below.

6A. Evid ence of intent to “destr oy” Appellant contends in her first argument that the arson statute and the abstrac t portion of t he jury

char g e author ized the jury to convict her

for a rson base d on evidenc e that she i ntended to “destroy or damag e” a habitation but that the application para g raph narr owed the scope of proof to proof of intent to “destroy” the habitation. She asser ts that the State must there fore have proven that she had the intent to “destroy” the habitation and that the State did not do so beca use “the only evidenc e conce rning intent focuse d on harming [P atel]” and “[t] here is n o evidenc e showing appellant intende d to destroy the habitation by

fire.” We need not decide whether the St at e wa s b ound by the term “destroy” in the application para g raph rathe r than the terms “destroy or damag e” in the abstrac t para g raph of the jury char g e beca

use we conclude that even if the State wer e held t o t h e h i gh er standard of proof, the evidenc e is sufficie nt to establish that appellant intended to destroy the habitation. A person acts with intent “with respe ct to the nature of [her] conduct or to a result of [her] conduct when it is [her] conscious objective or desire to eng ag e in the con d u ct or cause the result.” Tex. Penal Code § 6.03(a)

. Be cause “destroy” is not define d in the statute, we look to the common, ordinary meaning of the word. See W

illiams v. State , 270 S.W .3d 140, 146 (Tex. Crim. App. 2008). I n W illiams , the Texas Court o f C ri minal Appea ls deter mined that the use of the term “destroy s” in the statute prohibiting tampering with evidenc e meant that the thing destroy ed was “ruine d and rende red useless.” Id. We adopt the same interpre tation in the arson context and thus conclude that the State

was require d to prove that appellant had the intent to ruin the apar tment and rende r it useless when she starte d the fire

.

7I n turning to the evidenc e in the rec ord, we first note that the arson investigator

testified that the fire orig inated in the bathroom and that he believed Patel was burned in the bathtub. He testified, consistent with photos admitted into evidenc e, that the bottom of the bathroom door had been kicked open and that he believed appellant had kicked the door open to esca pe from the bathroom afte r the fire seale d the door shut. W e kee p this evidence in mind in lig ht of appellant’ s argument that the only evidenc e prese nted at trial as to her intent was evidenc e that she intended to burn Patel, not the apar

tment. The evidenc e of appellant’ s intent to destroy the apar tment includes the foll owing : (1) the arson i n v estig ator who examined the s cene testified t hat t he sprinkler head in the bathroom of the apar tment had been cover ed with cloth and tape befor e the fire burned most of the cover ing off; (2) pictures taken of the scene show remna nts of cloth and tape on the sprinkler head; (3) the arson investiga tor testified that the sprinkler head in the hallway of the apar tment was

cover ed with cloth and tape; (4) pictures of the hallway show th at t h e sprinkler head was cover ed

as the investigator descr ibed; (5) a fing erpr int e x aminer testified that appellant’ s fing erpr ints we re found on the materia l taped to the sprinkler heads, includ i n g t h e ad h esi ve side of a piece of tape; (6) the investigator testified that a smoke-dete ctor device had been remove d from its wiring on the ceiling of the hallway and that he found the smoke detec tor outside of t h e k i t ch en ; (7) the crime- scene specia list who collecte d evidenc e fr om the scene testified that he collecte d the smoke detec tor from wher e he found it sitti ng on top of a speake r under a counter in the dining room of the apar tment; (8) pictures of the scene show the exposed wiring wher e the smoke detec tor should have been and the smoke detec tor ly ing on a speake r in the dining room; (9) the arson investiga tor testified that he found a blue towel that “re eked of g asoline” in the hallway of the apar tment and box er shorts

8and other items soaked with g asolin e t h ro u gh o ut the apar tment; (10) the crime- scene specia list testified that he collecte d the blue towel soaked with g asoline from the hallway of the apar tment and two pairs of shorts soaked with g asoline from the living room of the apar tment; (11) pictures of the

scene show the blue towel on the floor of the hallway and the shorts on the floor of the living room; (12) the fire was strong enoug h to cause third-deg ree burns o v er seventy -seve n perc ent of Patel’s body and burn and melt sever al items in the bathroom, including the door, which melted to the door frame, a plastic ve nt cover , a phone-ja ck cover , and a towel rod; (13) the neig hbor who ca lled 911 testified that, while walking up the s tairs to Patel’s apar tment, “it smelled rea lly , rea lly strong of g asoline”; (14) one of the para medics at the scene testified that, as he approa ched the apar tment, he smelled “a strong odor of

. . . something like a petroleum-ty pe smell of burning ”; and (15) the arson investigator testified that, as he approa ched the apar tment, “the smell of g asoli n e was very , very strong ” and that, afte r enter ing the apar t m en t , t he smoke and g as fumes wer e so strong in the bathroom that the investig ators had to lea ve the a partment for

five to ten minutes bef

ore r eturning to examine the scene

.

Viewing the evidenc e in the light most favor able to the verdic t, we disag ree that the only evidenc e of intent was evidenc e of intent to burn Patel. The evidenc e shows that Patel was in the bathroom with the door closed when the fire beg an, y et the smoke-dete ctor in the hallway of the apar tment had been disabled, the sprinkler in the hallway had been cover ed and seale d, a g as-soaked towel and two pairs of g as-soaked shorts wer e left ly i n g i n t h e h all way and living room of the apar tment, and the smell of g asoline was so strong that people could smell it as they walked toward the apartment from outs ide. Given all of t he evidence, pa rticularly the evidenc e of what occurre d

9outside the bathroom and the evidenc e of the m easur es t aken to hinder suppression of the f

ire, we conclude that a rational jury could have found bey ond a rea sonable doubt that appellant intended to destroy the apar

tment when she started the fire. See Jack son , 443 U.S. at 319; Temple , 390 S.W .3d at 360.

B. Evid ence of re qui site know ledge

Appellant also challeng es the sufficie ncy of the evidenc e to establish that she had knowledg e that (1) Patel’s habitation was “within the limit s of an incorporated city , to wit: Austin, Texas;” or (2) Patel’s habitation was “located o n p ro p erty belong ing to another , to wit: Camden Huntington;” or (3) she was “re ckless in [st arting the fire] by consciously disreg arding the risk that the fire would endang er the life of Biman [si c] Pate l.” We note that in a leg al-suff iciency analy sis, we consider circ umstantial evidenc e as well as direc t evidenc e, and we also consider all

rea sonable infere nce s t h at m ay be draw n from the cumulative evidenc e. See Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007); Hooper v. State , 214 S.W .3d 9, 13 (Tex. Crim. App. 2007) (“Circ umstantial evi d en ce i s as probative as direc t evidenc e in establishing the g uilt of an actor , and cir cumstantial evidenc e alone can be sufficie nt to establish guilt.”).

A re v i ew o f the rec ord here shows that the State prese nted sufficie nt evidenc e to prove that appellant knew that Patel’s habitation was within the city limit s of Austin. Specifica lly , a friend of Patel’s who attended Patel and appellant’ s wedding in I ndia testified that P at el s p en t months afte r the wedding navig ating the immigration proce ss in order to g et appellant admitted into the United States, and appellant fi n al l y ar ri v ed in Austin within only wee ks of the fire. A text messag e sent from Patel to a friend approximately two months befor e the fire and ad m i t t ed i n to 10evidenc e by the defe nse also shows that Patel was actively eng ag ed i n the proce ss of g etting

appellant admitted to the United States and that appellant had an immigration inter view schedule d for two wee ks later. A jury could rea sonably infer based on the evidenc e that appellant, as the person actua lly immigra

ting to the United States, also par ticipated in the i mmigration proce ss along with Patel and tha t , h av i n g p ar t icipated in the process and then trave led from her native country to her

n ew country , would know the name of the new city in which she was residing

. Fur ther, ex h i b i t s admitted by the defe nse show that appellant beca me sick afte r she arr ived in Aus tin and that she went to a medical clinic in Austin two day s befor e the fire. The medical rec ords from the cl i n i c p ro v i d e ap p el lant’s name and address at Patel’s residence in Austin. Prescr iption rec eipts from a Walgr eens in Austin dated the same day as appellant’ s visit to the clinic display , among other things, appellant’ s name and her addre ss at Patel’s residenc e in Austin. Surveillance videos, the testimony of a taxi driver, and a rec eipt from a Walmart found in the apar tment f urther show that, on the day of the fire, appellant called a taxi service from a Walmart in Austin and then direc ted the taxi driver to dr ive her to an Exx on station, a police station, and then he r residenc e at Patel’s apar tment. The taxi driver testified that he stopped only briefly at the police station befor e appellant, without g etting out of the car , then redire cted him to keep g oing straig ht to the Camden apar tments, which is wher e Patel’s apa

rtment was located. Although there is no direc t evidenc e that appellant knew that Patel’s apar tment was in Austin, the cumulative forc e of all of t he circumstantial evidenc e—including evidenc e that she and Patel planned for months afte r their wedding for her to immigrate to the United States and join him at his residenc e, which was in Austin; that she went to a medical clinic and pharma cy in Austin

11two day s befor e the fire, where she receive d documents l isting her addre s s as P at el’s residenc e in

Austin; a nd that she went to se vera l othe r place s on her own in Austin and direc ted a taxi driver to

eac h place —is sufficie nt for a rational jury to conclude that appellant knew that the apar tment in which she resided with Patel was in the c ity of Austi n. See Clayton , 235 S.W .3d at 778; Hooper , 214 S.W .3d at 13 (“Ea ch fac t need not point direc tly and independe ntly to the g uilt of the appellant,

as long as the cumulative forc e of the all incriminating circ umstances is sufficie nt to support the conviction.”) ; Bella v. State , 792 S.W .2d 542, 545 (Tex. App.—El Paso 1990, no pet.).

Where the char g e authorizes the jury to convict a defe ndant on more than one theory in the disjunctive, as it did here , we will uphold the verdic t of g uilt if the evidenc e was sufficie nt on any theory authorized by the jury char g e. See Campbell v. State , 426 S.W .3d 780, 786 (Tex. Crim. App. 2014). Thus, we need not consider whether the evidenc e is suff i cient to support the other theories reg arding appellant’ s k n o wl ed ge at the time of the fire. See id. ; Pruett 1

v. State , — S.W .3d — , No. 0 2 -1 4 -00222-CR , 2015 WL 10324059, *2 (Tex. App.—For t Worth Dec . 10, 2015, pet. filed).

C. Conclusion Regar din g Suf fi ciency of Evid ence Be cause we are unpersua ded by appe l l an t ’s challeng es to the sufficie ncy of the evidenc e, we overr

ule her first issue.

For the same rea son, we need not addre ss appellant’ s argument reg arding the ty pog raphic al 1 err or in the par ag raph se tting forth the t hird knowledg e theory , which incorrec tly listed the victim as “B iman P at el ” ra t her than “B imal Patel.” See Campbell v. State , 426 S.W .3d 780, 786 (Tex. Crim. App. 2014). 12Jury Char ge I n her second iss u e, ap p el l ant contends that the trial court err ed in submitt ing an instruction on the law of parties in the jury char g e beca use there is no evidenc e that she participated

as a party with any one else in committing the offe nse of arson. The law-of -par ties instruction in the jury char g e in this case stated:

A person is criminally responsible as a party to an offe nse if the offe nse is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. A person is criminally responsible for an offe nse committed by another if acting with intent to promote or assist the commission of the offe nse, h e s o l i ci ts, encour ag es, direc ts, aids, or attempts to aid the other pe rson to commit the offense

.
I n revie wing claims of jury -cha rg e error, w e first de termine if ther e wa s err or, and, if there was err or, we then decide whether the err or cause d sufficie nt harm to war rant a reve rsal. Ngo v. State , 175 S.W .3d 738, 743 (Tex. C ri m . Ap p . 2 0 0 5); Kuhn v. State , 393 S.W .3d 519, 524 (Tex. App.—Austin 2013, pet. ref ’d). The amount of harm nece ssary to war rant a reve rsal depends

on whether the defe ndant objected to the jury char g e. Ngo , 175 S.W .3d at 743; Kuhn , 393 S.W .3d at 524. I f t he defenda

nt prese rved error with a ti mely objection i n the t rial court, as ap p el l ant di d here , the re cord ne ed only show “some ha

rm” to wa rra nt a re versa l. See Ngo , 175 S.W .3d at 743; Kuhn , 393 S.W .3d at 524. “Some harm” is shown when the err or was “ca lculated to injure the rig hts of the defe ndant. ” S

ee B arrios v. State , 283 S.W .3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. State , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985) (en banc) (op. on reh’ g ), overruled

on other grounds by Rodriguez v. State , 758 S.W .2d 787 (Tex. Crim. App. 1988)). In demonstrating

13that “some harm” occur red, a defe ndant must show that she suffe red some actua l, rathe r than mere ly theore tical, harm from the err or . See Ree ves v. State , 420 S.W .3d 812, 816 (Tex. Crim. App. 2013). I n assessing harm, we consider (1) t h e entire jury char g e; (2) the state of the evidenc e, including contested issues and the weig ht of probative evidenc e; (3) the argument of counsel; and (4) any other rele vant information reve aled by the rec ord as a whole. Taylor v. State , 332 S.W .3d 483, 489 (Tex. Crim. App. 2011); Almanza , 686 S.W .2d at 171.

I n deciding whether or not to include an instruction on the law of parties in the jury char g e, the trial court’s task is not to deter mine whether the Stat e i s correct that the defe ndant is liable under the law of parties but rathe r to deter mine whether th e ev i d en ce ra ises the issue. See In re State ex rel. W

eek s , 391 S.W .3d 117, 125 (Tex. Crim. App. 2013). Her e, it was appella n t herse lf who advanced a t heory that she m erel y acte d as a party to starting the fire and then soug ht the admission of evidenc e to support her theory . Specifica lly , during opening statements, defe nse counsel stated:

Another thing y ou’re g oing to discover is that inside the relig ion, particula rly as it’s prac ticed in I ndia, not the United States, the devotion and the obedienc e of a wife to her husband is near absolute. You will hear evi d en ce that in the ear ly morning , betwee n 8:30 and 9:3 0, if I reme mber the times corr ectly , [appellant] did g o to a Wal-Mart and buy the instruments that wer e used to cover the sprinklers, the smoke detec tor, that she boug ht g asoline. You’re also g oing to hear her explanation of why

. And it’s simple. Bec ause [Patel] t old her to do it. Appellant ultimately did not t es t i fy at trial, but the defe nse perpe tuated its theory that Patel committed suicide by eliciting evidenc e t h ro u gh the cross-e x amination of sever al of the State’s wi t n esses and throug h the admission of cer tain exhibi ts. Specifica lly , during the defe nse’s

14cross-e x amination of Patel’s friend, defe nse counsel emphasized the friend’ s testimony that Patel’s

persona l financ ial situation was “mea g er, at best”; elicited testimony that Patel’s fathe r and the other male members of his family wer e wea lthy and succe ssful; and attempted to elicit testimony that Patel

was une mploy ed and unde r a g reat deal of pr essure at the time of the f ire. The defe nse also elicited testimony about the cotton packing found in Patel’s nostrils in an attempt to prove that Patel started the fire himself. The sug g estion was that the cotton was in Patel’s nose befor e the fire started and that it was unlikely another person put it there

. Specifica lly , during the cross-e x amination of one of the police office rs wh o fi rs t ar rived on the scene , defe nse counsel mentioned the law-e nforc ement video made at the scene in which the office r repor ted Patel’s version of events, and defe nse counsel then questioned the office r about comments he made in the video reg arding how Patel’s story did not nece ssarily make sense, es p e c ia ll y g iven the cotton packing found in his nose. The office r admitted that he thought it odd that Patel’s nostrils wer e packe d with cotton. Def

ense counsel also addre ssed the cott o n packing during the cross-e x amination of the

emer g ency -room doctor, who testified that he saw the packing in Patel’s nostrils when Patel arr ived at t he hospi tal and that he had never seen an y o n e arrive l ike t hat unl ess t hey wer e coming in with a noseble ed. The defe nse also admitted medical rec ords from Patel’s t re at m en t afte r the fire to show that the cotton packing found in his nostrils was singe d, and the defe nse then used the rec ords to establish throug h the arson investigator’s testimony that the si ng ed cotton sug g ested that the cotton was i n P at el ’s n o s e befor e the fire beg an. Def ense counsel also drew attention during the

cross- ex am i n at i ons of the emer g ency -room doctor and the arson investigator to one of the

15photogr aphs of Patel admitted by the State that showed t h e remains of cotton packing in

Patel’s nostrils.

I n further support of the theory that Patel was s u ic id a l, the defe nse admitted an exhibi t that the parties stipulated was a text messag e from Patel to a friend approximately two months befor e the fire . I n the text, P atel stated: Alrig ht man, my dad had surg ery y esterda y on his g ood ey e, and it didn’t g o so well so he is back in there now and I have to handle all of the paper work for the two hotels in Amarillo and g et the documents prepare d and mailed for my wifes [si c] immigration interview which is in two wee ks and I g ot a letter from the I RS today for a problem on my 2008 tax return and still have two meeting s tomorrow morning on top of ever

y thing else, so I rea lly need to take the night off. I hope u can understand and just g et the mee ting with alin knocke d out urself [sic] t onight. Moreso [si c] a persona l nig ht me aning I ’ll probably be g oing out tonig ht. I ’m fine, but at the same time I fee l like I ’m ab o u t t o snap not bad, but moreso [si c] like a superbe nt treebr anch w ith a lot of weig ht on it. S o hit me up later tonig ht.

The defe nse also reque sted an instruction in the jury char g e on assisted suicide, a reque st that was denied by the trial court, and then further emphasized its theory in closing argument, when de fense counsel stated:

L adies a nd g entlemen, [appellant] is guilty bey ond a re asonable doubt of assisting in the suicide of he r husband. That’s what this evidenc e has shown y ou this week.

. . . . They obviously proved to y ou bey ond a rea sonable doubt that she boug ht the items, okay

. Wal-Mart tapes. The g as station tapes. That’s the kind of proof y ou want. I f they are g oing to [m ake] an acc usation, that’s the kind of proof y ou want

. . . That’s all they proved. She boug ht the items and she helpe d him.

. . . . 16And while we can fee l for [P atel], he was a troubled man. We broug ht y ou some of

that evidenc e . . . We broug ht y ou the evidenc e of his fina ncial troubles.

. . . . [T] here ’s so many expectations on h i m . There is so much pressure on him. He hasn’t lived up to the family expectation. He ce rt ainl y hasn’t done as well as his fathe r and his uncles and cousins. He hasn’t done very well at all as a matter of fac t. The one thing an I ndian man has to do is g et marrie d. And the one thing a husband does is take car e of his wife and s u p p o rt her. She finally g ets here

. He’ s about to snap before she g ets here

. But she f inally g ets here . And he r ealizes he c an’t even do the most basic, basic of expectations. He can’ t provide for her. Pay his rent. He takes her to the doctor, which is w hy those medical rec ords are in e vidence

. And if y ou note, he doesn’t want to pay for a l ab

. They want her to g o to the lab and he doesn’t want to pay for it. Phone rec ords show y ou that he was calling his fathe r that whole night. What do y ou t hink? For help. Help, Dad. My wife is sick, and I ’ve g ot nowher e to take her. Probably doesn’t make his fathe r very happy

. You can’ t even f ulfill the most basic ex pectations of that family

. Considering the defense’ s consistent advanc ement of a theory throug hout trial that appellant assisted Patel in starting the fire, the defe nse’s ev o cation of testimony from the State’s witnesses reg arding the wa y in which cer tain evidenc e not only did not match Patel’s version of events but also sug g ested that Patel took part in starting the fire; and the defe nse’s p u rs u i t o f t h e admission of exhibi ts that supported its theory , we conclude that t h e t ri al court did not err in deter mining that the evidenc e at trial raised the issue of whether appellant participated as a party to the offe nse of a

rson. See W

eek s , 391 S.W .3d at 125. Fur ther, even if the trial court had err ed in submitt ing the law-of -par ties instruction, the error was harmless because there was ex tensive ev i d ence that appellant was the prim ary actor in committing the offe nse of arson in this case . See Ladd v. S t a t e , 3 S.W .3d 547, 564–65 (Tex. Crim. App. 1999) (stating that err or in cha rg ing jur y on law of parties is har

mless where evidenc e 17clea

rly supports defe ndant’s g uilt as principal actor ); Cathey v. State , 9 92 S.W .2d 460, 466 (Tex. Crim. App. 1999 ) (same)

. The evidenc e of appellant’ s g uilt as the principal actor is substantial, including the following : (1) severa l witnesses, i ncludi n g t h e n eighbor who called 911, the pol ice office r who arr ived on the scene , a para medic, and an emer g ency -room doctor, all testified that Patel

was scre aming in pa in a

nd saying that his w ife set him on fire; (2) the neig hbor testified that when he opened the door to Patel’s apar tment, he saw appellant standing at the door holding a purse behind her back, and she was not scre aming , “see med pretty calm,” and said, “I need to g o”; (3) the

arson investigator testified that all of the evidenc e at the scene supported a conclusion that Patel did

n o t s t ar t t h e fire himself; (4) surveillance videos, testimony from a taxi driver, and a rec eipt from Walmart found in the apar tment showed that on the day of the fire, appellant purcha sed the tape and candle s found in the apar

tment, boug ht a g as can, and filled the can with g asoline befor e returning to the apar

tment; and (5) appellant’ s fingerp ri n t s were found on a bucket in the hallway that contained a pl astic cu p and g as residue; a gas can in the hallway closet; and material taped to and

cover ing the sprinkler heads, including the adhe sive side of a piece of tape. Considering all of the evidenc e of appellant’ s g uilt as the principal actor , any err or in the submissi on of the law-of -par ties instruction was har

mless. See Ladd , 3 S.W .3d at 564–65; Cathey , 992 S.W .2d at 466. Be cause we con clude that the trial court did not err in including the law-of -par ties instruction in the jury char g e and that, even if the trial cour

t had er red, the err or wa s harmless, we

overr ule appe llant’s second issue.

18CONCLUSION Having overr

uled all of a

ppellant’s issues, we aff

irm the trial cour

t’s judgme nt of convic tion.

_______________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Pemberton, and B ourland Affir med Filed: Apr il 7, 2016 Do Not Publish

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