NO. 12-22-00206-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KERMIT FRANCIS GABEL, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

§

§

§

APPEAL FROM THE 114TH 

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Kermit Francis Gabel appeals his conviction for arson with intent to damage a habitation. 

In seven issues, Appellant argues that his trial counsel was ineffective, the trial court improperly 

denied his motion for a directed verdict, and the evidence is insufficient to support his

conviction. We affirm.

BACKGROUND

Appellant was charged by indictment with arson with intent to damage a habitation, 

enhanced by two prior felony convictions.1 He pleaded “not guilty” to the offense and “not true” 

to the enhancement paragraphs, and the matter proceeded to a jury trial. 

At trial, the evidence showed that on Sunday, November 1, 2020, at 200 South Beckham 

Avenue in Tyler, Nayely Medina was preparing to sleep when she heard a window shatter. 

Through her bedroom window, she saw Appellant across the street at 205 South Beckham, where 

a vacant house stood. Medina’s partner recorded Appellant with a cell phone while Medina 

called 911. For the next five days, Medina saw Appellant drive slowly past the house in the early 

1 A first-degree felony punishable, with the alleged enhancements, by imprisonment for a term of life, or 

not more than ninety-nine years or less than twenty-five years. See TEX. PENAL CODE ANN. §§ 28.02(a), (d)(2) 

(West 2019), 12.42(d) (West 2019).
2

afternoon. On Friday night, November 6, around 11:00 p.m., passing motorists saw the house

burning and called 911. Firefighters arrived within two minutes of the calls, but the house was 

already fully engulfed in flames. 

On Saturday, while investigating the fire’s causes, Deputy Fire Marshal Larry Crowson

learned from Medina about Appellant’s suspicious behavior and that her family installed

surveillance cameras on Thursday. While Crowson was present at Medina’s house, Medina saw

Appellant in his pickup truck and identified him to Crowson. Crowson followed Appellant a 

short distance before Appellant stopped and exited his vehicle. Appellant told Crowson that he 

was not at the house the night it burned but saw the flames. When Crowson viewed the 

surveillance videos, he saw a person on the porch near the fire as it started. Based on Crowson’s 

investigation, including a comparison of the person in the surveillance video with the person in 

Medina’s cell phone video, he believed that Appellant started the fire.

Ultimately, the jury found Appellant “guilty” as charged and the enhancement paragraphs

“true,” and assessed his punishment at imprisonment for life. This appeal followed.

INEFFECTIVE ASSISTANCE OF COUNSEL

In Appellant’s first through fourth issues, respectively, he argues that his trial counsel 

was ineffective for failing to 1) object to leading questions and nonresponsive answers, 2) clearly 

articulate a Daubert objection and secure a ruling, 3) object to undisclosed extraneous offense 

testimony, and 4) object to the admission of the cell phone and surveillance videos. In his fifth 

issue, he argues that the cumulative effect of his trial counsel’s deficient performance resulted in 

an improper verdict and sentence.

Standard of Review and Applicable Law

In reviewing an ineffective assistance of counsel claim, we follow the United States 

Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 

80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). 

Under the first prong of the Strickland test, an appellant must show that counsel’s performance 

was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707, 

712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that 

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant 
3

must “show that counsel’s representation fell below an objective standard of reasonableness.” 

Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.

Under the second prong, an appellant must show that the “deficient performance 

prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 

712. The appropriate standard for judging prejudice requires an appellant to “show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 

712. A reasonable probability is a probability sufficient to undermine confidence in the 

outcome. Id. An appellant claiming ineffective assistance of counsel must affirmatively prove 

prejudice from counsel’s deficient performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. 

Crim. App. 1999).

Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712. 

We indulge in a “strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is 

Appellant’s burden to overcome the presumption that, under the circumstances, the challenged 

action might be considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, any 

allegation of ineffectiveness must be firmly founded in the record, and the record must 

affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 

(Tex. Crim. App. 1999). Rarely is the record on direct appeal sufficiently developed to fairly 

evaluate the merits of a claim of ineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. 

App. 2002). 

Failure to make the required showing of either deficient performance or sufficient 

prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Appellant must prove 

both prongs of the Strickland test by a preponderance of the evidence to prevail. Tong, 25 

S.W.3d at 712. 

Leading Questions and Nonresponsive Answers

Appellant lists numerous record citations where he claims his trial counsel should have 

objected to leading questions and nonresponsive answers. “Leading questions should not be 

used on direct examination except as necessary to develop the witness’s testimony.” TEX. R.

EVID. 611(c). Despite this rule, it is sound trial strategy for opposing counsel not to object when 

the evidence will come in anyway. Young v. State, 10 S.W.3d 705, 713 (Tex. App.—Texarkana
4

1999, pet. ref’d). When the record provides no reference to explain why counsel failed to object 

to a leading question, an appellant fails to rebut the presumption that such conduct was 

reasonable trial strategy. See id.

We agree with Appellant that some of the State’s questions were leading, some of the 

witnesses’ answers were nonresponsive, and his trial counsel failed to object, but we cannot 

agree that this establishes his counsel was ineffective. Appellant does not argue that the 

evidence would not have come in had his counsel objected to the State’s leading questions, and 

we find no indication in the record that it would not. Nor does he argue that the nonresponsive 

testimony would not have come in had his counsel objected. Counsel might have reasonably

believed that the State would have elicited the testimony through additional questions and that it

was less harmful buried in a lengthy response rather than emphasized by an objection. See

Johnson v. State, No. 12-10-00110-CR, 2011 WL 1902066, at *3 (Tex. App.—Tyler May 11, 

2011, pet. ref’d) (mem. op.) (not designated for publication). We conclude Appellant has not 

established that his counsel’s performance was deficient for failing to object to leading questions

and nonresponsive answers. See id.; Young, 10 S.W.3d at 713. Therefore, he fails to meet his

burden of proving his counsel’s ineffectiveness. See Strickland, 466 U.S. at 687, 104 S. Ct. at 

2064; Tong, 25 S.W.3d at 712. Accordingly, we overrule Appellant’s first issue.

Daubert

Appellant argues that his trial counsel was ineffective because he failed to request a 

Daubert2 hearing and obtain an adverse ruling to preserve his error regarding Crowson’s

purported expert testimony. He contends Crowson’s opinion that the rapid spread of the fire was 

caused by the presence of an accelerant constitutes expert testimony. According to Appellant, 

even assuming the trial court determined that Crowson was qualified to present expert testimony, 

his trial counsel’s performance was deficient because he failed to (1) object to the State’s failure 

to disclose Crowson as an expert pretrial, (2) articulate the basis of his objection, and (3) conduct 

a voir dire examination of Crowson outside the jury’s presence.

The State argues that Appellant fails to meet his burden of showing ineffectiveness for 

numerous reasons. First, Appellant fails to show what a Daubert motion would have revealed 

about Crowson’s expertise, how the motion would have impacted his case, or the reasoning 

behind his counsel’s decision against requesting a Daubert hearing. Second, Crowson’s 

2 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 469 (1993).
5

conclusion that an accelerant was used is based on common enough knowledge to constitute a 

lay witness opinion. Finally, the State argues that counsel’s decision not to object under Daubert

could have been sound trial strategy because objecting to the credentials of Crowson, with his 

over twenty years of fire department experience, would have been futile. 

We agree that Crowson’s opinion does not constitute expert testimony. “A distinct line 

cannot be drawn between lay opinion and expert testimony because all perceptions are evaluated 

based on experiences.” Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). “If a 

witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: 

(a) rationally based on the witness’s perception; and (b) helpful to clearly understanding the 

witness’s testimony or to determining a fact in issue.” TEX. R. EVID. 701. Generally, 

observations that do not require significant expertise to interpret and are not based on a scientific 

theory may be admitted as lay opinions if the requirements of Rule 701 are met. Osbourn, 92 

S.W.3d at 537. This is true even when the witness has experience or training. Id. Even 

uncommon events do not necessarily require the testimony of an expert. Id. The personal 

experience and knowledge of a lay witness may establish that he is capable, without qualification 

as an expert, of opining on a subject outside the realm of common knowledge. Id. Only when 

the fact finder may be unable to fully understand the evidence or determine the fact at issue 

without the assistance of someone with specialized knowledge must a witness be qualified as an 

expert. Id.

Crowson testified that the speed at which the fire spread, as shown in the surveillance 

video, indicated the presence of an accelerant. When asked whether the speed of the spread was 

consistent with “natural burning,” he testified as follows:

It just wouldn’t develop that fast. Even if—even if this was an old—it is an old wooden 

structure. Without an accelerant, it would not move from one end of the house to the complete 

other end of the house in less than 20, 30 seconds. It’s just not possible. 

This opinion did not require significant expertise and does not appear to be based on a scientific

theory but on Crowson’s personal experience working for the City of Tyler Fire Department for 

eighteen years as a firefighter and three years as a deputy fire marshal. Therefore, the State was 

not required to qualify Crowson as an expert to render the opinion. See id. Consequently,

Appellant has not established that trial counsel’s performance was deficient for failing to request 

a Daubert hearing and fails to meet his burden of proving his counsel’s ineffectiveness. See 
6

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. Accordingly, we 

overrule Appellant’s second issue.

Extraneous Offense Testimony

Appellant argues that his trial counsel was ineffective because he failed to 1) object to 

undisclosed extraneous offense testimony regarding his commission of criminal mischief and 

trespass and 2) request a limiting instruction regarding the use of that testimony. Specifically, he 

cites Medina’s testimony that about seven days before the fire, she heard glass break outside her 

home and saw Appellant at the house he was later accused of burning. Appellant acknowledges 

the State notified him of its “intent to offer evidence of any extraneous or bad acts which are 

included in the discovery materials,” but he contends that even if the acts are deemed disclosed, 

his trial counsel’s performance was deficient in failing to object to the testimony because he 

missed the opportunities to 1) require the State to articulate the bases for the offer and 2) ask for 

a limiting instruction on how the jury could consider the testimony.

Appellant fails to establish his trial counsel’s ineffectiveness because the cited evidence 

is admissible. The failure of trial counsel to object to admissible evidence does not constitute 

ineffective assistance of counsel. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 

1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994).

To successfully assert that trial counsel’s failure to object amounted to ineffective assistance, an 

appellant must show the trial judge would have erred in overruling such an objection. Ex parte 

Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).

Evidence of a crime, wrong, or other act is not admissible to prove a defendant’s 

character to show that he acted in accordance with his character on another occasion. TEX. R.

EVID. 404(b)(1). However, such evidence may be admissible for another purpose, such as 

proving an offender’s identity. Id. 404(b)(2). Generally, on a defendant’s timely request, the 

state must provide reasonable notice before trial that it intends to introduce such evidence. Id.

Appellant fails to show that he timely requested such notice. Furthermore, even if he requested 

notice, he fails to show that the evidence is inadmissible. As the State observes, the arsonist’s

identity was at issue at trial, and the evidence is relevant to that issue. Medina’s testimony that 

she saw Appellant at the house after she heard a window break shows why she noticed him 

subsequently driving past the house and pointed him out to Crowson, which led to Crowson’s 

contacting and ultimately linking him to the arson. Because the testimony was admissible to 
7

prove Appellant’s identity as the arsonist, the trial court would not have erred in admitting the 

evidence over counsel’s objection, and Appellant fails to establish his counsel’s ineffectiveness. 

See id.; McFarland, 845 S.W.2d at 843; Ex parte Martinez, 330 S.W.3d at 901.

Regarding trial counsel’s failure to request a limiting instruction, assuming without 

deciding that counsel’s performance was deficient in that regard, Appellant fails to establish that 

the deficient performance prejudiced his defense. First, the State did not argue that Appellant 

must be the arsonist because he acted in accordance with his character as a person who trespasses 

and breaks windows, and we find it unlikely the jury used the evidence for that purpose. 

Moreover, the charge explicitly forbade the jurors from considering any evidence of Appellant’s 

other bad acts for improper purposes. We assume the jury followed the instructions as given.

See Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002). Because Appellant fails to 

establish that his counsel’s failure to request a limiting instruction prejudiced his defense, we 

conclude he has not met his burden of proving his counsel’s ineffectiveness. See Strickland, 466 

U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. For the above reasons, we overrule 

Appellant’s third issue.

Videos

Appellant argues that his trial counsel was ineffective because he failed to object to the 

admission of State’s Exhibit 6, a flash drive containing the cell phone and surveillance videos.

He contends that the State failed to lay the proper predicate for the surveillance videos’

admission because their sponsor 1) did not know the recording system was operational, 2) had no 

personal knowledge of the recorded events, 3) confirmed that the videos’ time-stamp information 

was inaccurate, and 4) confirmed that the videos inaccurately depicted the colors of objects. 

Consequently, Appellant argues, his counsel’s failure to object to the videos’ admission prevents 

this Court from properly evaluating their admissibility. We disagree.

Any proffered item of evidence may be authenticated by “evidence sufficient to support a 

finding that the item is what the proponent claims it is.” TEX. R. EVID. 901(a). Conclusive proof 

of authenticity before admitting disputed evidence is not required. Fowler v. State, 544 S.W.3d 

844, 848 (Tex. Crim. App. 2018). “Evidence may be authenticated in a number of ways, 

including by direct testimony from a witness with personal knowledge, by comparison with other 

authenticated evidence, or by circumstantial evidence.” Tienda v. State, 358 S.W.3d 633, 638 

(Tex. Crim. App. 2012). Rule 901’s standard for authentication has been described as a “liberal 
8

standard of admissibility.” Fowler, 544 S.W.3d at 849. Consistent with the concept that counsel 

is not required to take a futile action, counsel’s failure to object to a lack of foundation is not

ineffective assistance unless the record shows that the state would not have been able to lay a

proper foundation. See Holland v. State, 761 S.W.2d 307, 318-19 (Tex. Crim. App. 1988); 

Darnell v. State, No. 14-11-00437-CR, 2012 WL 626318, at *2 (Tex. App.—Houston [14th 

Dist.] Feb. 28, 2012, no pet.) (mem. op., not designated for publication).

At trial, Medina testified that the recordings in State’s Exhibit 6 were the cell phone 

videos her partner recorded on November 1 and the videos recorded by her surveillance cameras

on the night of November 6. She further testified that she reviewed the videos and they are fair

and accurate recordings with no alterations of the events as they happened. Regarding the 

surveillance videos, Medina testified that the time reflected in them was an hour late because her 

computer had not yet adjusted to a time change. Medina explained the locations of the cameras

and identified various items seen in the videos. On cross-examination, she agreed that some of

the colors depicted in the videos are inaccurate because everything in the videos appears as 

black, white, or gray. 

Based on the record before us, we cannot conclude that Appellant established his trial 

counsel was ineffective in failing to object to the videos’ admission. First, the trial court would 

not have erred in admitting the evidence over counsel’s objection because the evidence presented 

by the State satisfies the requirements of Rule 901 and authenticates the evidence. See TEX. R.

EVID. 901(a); Fowler, 544 S.W.3d at 848-49; Tienda, 358 S.W.3d at 638. Therefore, Appellant 

fails to establish his counsel’s ineffectiveness. See McFarland, 845 S.W.2d at 843; Ex parte 

Martinez, 330 S.W.3d at 901. Moreover, even if the State’s authentication evidence was 

insufficient, Appellant does not contend, and the record does not show, that the State could not 

have provided adequate foundation through additional evidence. See Holland, 761 S.W.2d at

318-19; Darnell, 2012 WL 626318, at *2. Because Appellant fails to establish that his counsel’s

failure to object to the videos’ admission constituted deficient performance or prejudiced his 

defense, he fails to meet his burden of proving his counsel’s ineffectiveness. See Strickland, 466 

U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. Accordingly, we overrule Appellant’s 

fourth issue.
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Cumulative Effect

Appellant argues that the cumulative effect of his trial counsel’s deficient performance 

resulted in an improper guilty verdict and an improper sentence. Although multiple errors may 

cumulatively rise to the point of harmfulness, the court of criminal appeals has never found that 

non-errors may in their cumulative effect cause error. Gamboa v. State, 296 S.W.3d 574, 585

(Tex. Crim. App. 2009). We decided above that counsel’s performance in each of Appellant’s 

issues either was not deficient or, assuming without deciding it was deficient, did not prejudice 

his defense. Considering the totality of counsel’s representation, we conclude Appellant fails to 

show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; 

Tong, 25 S.W.3d at 712. Because Appellant fails to show that his trial counsel’s performance 

prejudiced his defense, he fails to meet his burden of proving his counsel’s ineffectiveness. See 

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. Accordingly, we 

overrule Appellant’s fifth issue.

EVIDENTIARY SUFFICIENCY

In Appellant’s sixth issue, he argues that the trial court erred in denying his motion for 

directed verdict. In Appellant’s seventh issue, he argues that the evidence is legally and factually

insufficient to support his conviction.

Standard of Review and Applicable Law

The Jackson v. Virginia3 legal sufficiency standard is the only standard that a reviewing 

court should apply in determining whether the evidence is sufficient to support each element of a 

criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v. 

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional 

minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a 

criminal conviction. See Jackson, 443 U.S. at 315-16, 99 S. Ct. at 2686-87; see also Escobedo 

v. State, 6 S.W.3d 1, 6 (Tex. App.—San Antonio 1999, pet. ref’d). The standard for reviewing a 

legal sufficiency challenge is whether any rational trier of fact could have found the essential 

elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 

2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is 

3 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979).
10

examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 

2789; Johnson, 871 S.W.2d at 186. This requires the reviewing court to defer to the jury’s 

credibility and weight determinations, because the jury is the sole judge of the witnesses’ 

credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899; see Jackson, 

443 U.S. at 319, 99 S. Ct. at 2789. A “court faced with a record of historical facts that supports 

conflicting inferences must presume—even if it does not affirmatively appear in the record—that 

the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that 

resolution.” Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. 

The sufficiency of the evidence is measured against the offense as defined by a 

hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 

1997). Such a charge would include one that “accurately sets out the law, is authorized by the 

indictment, does not unnecessarily increase the state’s burden of proof or unnecessarily restrict 

the state’s theories of liability, and adequately describes the particular offense for which the 

defendant is tried.” Id.

To prove Appellant guilty of arson as charged in this case, the State was required to 

prove that he, with intent to damage or destroy a habitation located at 205 South Beckham 

Avenue in Tyler, started a fire, knowing that the habitation was within Tyler’s city limits. See 

TEX. PENAL CODE ANN. § 28.02(a), (d)(2). 

Identity

Appellant argues that no rational trier of fact could have found the evidence sufficient to 

prove his identity as the arsonist. We disagree. “A criminal conviction may be based upon 

circumstantial evidence.” Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). 

Circumstantial evidence is as probative as direct evidence in establishing guilt, and 

circumstantial evidence alone can be sufficient to establish guilt. Id. When reviewing the 

sufficiency of the evidence, we consider the combined and cumulative force of all the evidence. 

Id. at 526.

Medina testified that she lives at 200 South Beckham in Tyler. Her house faces the 

intersection where Elm Street dead-ends into Beckham, and 205 South Beckham is located at the 

corner of that intersection. On Sunday, November 1, at around 11:00 p.m. or 12:00 a.m., she 

was preparing to sleep when she heard a window shatter. She looked through her street-facing 

bedroom window and saw an elderly white man at 205 South Beckham. He slowly walked 
11

across the porch from the left side of the house and descended the steps. Medina told her partner 

to record the man’s movements on a cell phone while Medina called 911 to report the incident.

For the next five days between noon and 2:00 p.m., while Medina was applying makeup with the 

aid of the natural light from her window, she saw the same man in the same truck she saw on 

Sunday drive on Elm Street toward her house and turn south on Beckham, looking at the house at

205 South Beckham as he drove past it. He drove past the house so slowly that traffic was 

forced to maneuver around him to proceed. On Thursday, Medina’s family installed surveillance 

cameras at their home.

Medina said that she was not at home Friday night when the fire occurred. On Saturday, 

she was visited by Crowson and told him about the events she witnessed that week. While 

Crowson was there, she saw the man in the truck driving on Elm Street toward her house and

identified him to Crowson. At trial, Medina identified Appellant as the man that she identified to 

Crowson that day, saw at 205 South Beckham on Sunday, and saw driving past 205 South 

Beckham on Monday through Friday. She identified a truck in the surveillance videos ten to 

fifteen minutes before the fire started as the truck that she saw Appellant driving that week. 

Crowson testified that when he spoke with Medina on Saturday, she told him about the 

events she witnessed that week and gave him a detailed description of the vehicle the man was 

driving. When Medina saw and identified Appellant to him that day, Crowson ran to his car and 

followed him. Appellant drove south on Beckham, took two left turns, stopped in front of a 

house on South Beverly Avenue, exited his truck, and sat on a retaining wall. Crowson stopped

and contacted Appellant, who identified himself as K. Gabel. When Crowson asked about 

Appellant’s knowledge of the fire, Appellant said he was never on the property, but he saw the 

fire, and the flames must have reached a hundred feet in the air. Crowson observed that 

Appellant’s truck matched Medina’s prior description of a white extended cab Chevrolet 

Silverado with temporary tags and a black toolbox that sat lengthwise on the side of the truck’s 

bed. He further observed two gasoline cans in the bed. Crowson identified Appellant in court as 

the person he contacted that Saturday. 

Crowson testified that Medina called him Saturday evening and told him the surveillance 

cameras had recorded the events on Friday night. He described how the video shows the fire 

start on the southeast corner of the house and spread rapidly. The speed at which the fire spread

indicated to Crowson that an accelerant such as gasoline or kerosene was used. Crowson 
12

described how the video also shows a person on the wrap-around porch at the southeast corner of 

the house when the fire starts. The person descends the porch steps and proceeds north on 

Beckham. Crowson agreed that the person in the surveillance video had the posture and gait of 

an older man and appears to be the same person as the one in the cell phone video. He further 

testified that the vehicle in the surveillance videos ten to fifteen minutes before the fire starts

matches Appellant’s vehicle. After Appellant’s arrest, Crowson searched his vehicle and found 

two boxes of matches.

Considering the combined and cumulative force of all the evidence and viewing the 

evidence in the light most favorable to the verdict, we conclude that the jury was rationally 

justified in finding, beyond a reasonable doubt, that Appellant is the person who committed the 

arson in this case. See TEX. PENAL CODE ANN. § 28.02(a), (d)(2); Jackson, 443 U.S. at 319, 99 

S. Ct. at 2789; see also Brooks, 323 S.W.3d at 899; Merritt, 368 S.W.3d at 525.

Accelerant

Appellant argues that the evidence is insufficient to prove that an accelerant was used in 

the offense, especially if one discounts Crowson’s “objectionable opinion testimony” regarding 

the use of an accelerant. We need not determine the sufficiency of the accelerant evidence 

because the State was not required to prove that Appellant used an accelerant.

The indictment alleges that Appellant did 

with intent to damage or destroy a habitation located at 205 South Beckham Ave., Tyler, 

Texas, 75702 start a fire by lighting an accelerant with an ignition device, knowing that the 

habitation was within the limits of an incorporated city or town, namely Tyler, Texas[.]

Although the indictment alleges that Appellant used an accelerant, the State was not required to 

prove that fact because the use of an accelerant is not an element of the offense. As pertinent 

here, the arson statute provides the following:

A person commits an offense if the person starts a fire, regardless of whether the fire continues 

after ignition, or causes an explosion with intent to destroy or damage . . . any . . . habitation . . 

. knowing that it is within the limits of an incorporated city or town[.] 

. . . .

An offense under Subsection (a) . . . is a felony of the first degree if it is shown on the trial of 

the offense that . . . the property intended to be damaged or destroyed by the actor was a 

habitation[.]
13

TEX. PENAL CODE ANN. § 28.02(a), (d)(2). Because the use of an accelerant is not an element of 

the offense, the phrase “by lighting an accelerant with an ignition device” should not be 

incorporated into the hypothetically correct jury charge. See Cornwell v. State, 471 S.W.3d 458, 

466-67 (Tex. Crim. App. 2015) (indictment’s non-elemental phrase “by trying to resolve a 

pending criminal case” should not be incorporated into hypothetically correct jury charge). 

Consequently, we do not consider the accelerant evidence in measuring the sufficiency of the 

evidence in this case. See Malik, 953 S.W.2d at 240.

For the above reasons, we overrule Appellant’s sixth and seventh issues.

DISPOSITION

Having overruled Appellant’s first through seventh issues, we affirm the trial court’s 

judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered July 31, 2023.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 31, 2023

NO. 12-22-00206-CR

KERMIT FRANCIS GABEL,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 114th District Court

of Smith County, Texas (Tr.Ct.No. 114-0143-21)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, for which execution may issue, and that this 

decision be certified to the court below for observance.

James T. Worthen, Chief Justices. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.