## NO. 12

- 22

- 00206

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

KERMIT FRANCIS GABEL , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APP EAL FROM THE 114TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Kermit Francis Gabel a pp eals h is conviction for arson with intent to damage a habitation

. In seven issue s , 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.

B ACKGROUND Appellant was charged by indictment with arson with intent to damage a habitation , enhanced by two prior f elony convictions

. 1 He pleaded “not guilty” to the offense and “not true” to the enhancement paragraphs, an d the matter proceeded to a jury trial.
A t trial, the evidence showed that on Sunday, November 1, 2020, at 200 South Beckham Avenue in Tyler, Nayel y Medina was preparing to sleep when she heard a window shatter. Through her bedroom window, she saw Appella nt 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 s aw 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

- f ive years. See T EX

. P ENAL C ODE A NN

. § § 28.02( a ) , (d)(2) (West 2019 ), 12.42( d) (West 201 9 ).2 afternoon

. On Frida y 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 investigat ing the fire’s causes, D eputy Fire Marshal Larry Crowson
learned from Medina about Appellant’s suspicious behavior and that her family installed
surveillance cameras on Thu rsday. While Crowson was present at Medina’s house, Med ina saw Appellant in his pickup truck and identified him to Crowson. Crowson followed Appellant a short distance before Appellant stopped and exite d his vehicle. Appellant told Crowson that he

was no t 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 , h e believed that Appellant started the fire

. Ultimately, t he j ury found Appellant “guilty” as charged and the enhancement paragraphs “true,” and assessed his punishment at imprisonment for life

. This appeal fo llowed.

I NEFFECTIVE A SSISTANCE OF C OUNSEL In Appellant’s f irst through f ourth issues, respectively , he arg ues that h is 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 a dmission of the cell phone and surveillance video s. In his fifth issue, he argues that the cumulative effect of his trial counsel’s deficient perfo rmance resulted in an improper ver dict and sentence. Standard of Review and Applicable Law In reviewing an i neffective 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 (198 4)

. 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 successfu l, an appellant3 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 s how that the “deficient performance prejudiced the defense.” Strickland , 466 U.S. at 687, 104 S. Ct. at 206 4; Tong , 25 S.W.3d at
712. The appropriate standard for judging prejudice requires an appellant to “show t hat there is a reasonable probability th a t, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strick land , 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 prejudic e from counsel’s deficient performance. Mitchell v. State , 989 S.W.2d 747, 748 (Tex. Crim. App. 1999).
Review o f trial counsel’s representation is highly deferential. Tong , 25 S.W.3d at 712. We indulge in a “strong presumption that counsel’s conduct fall s 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 over c ome the presumption that, under the circumstances, the challenged action might be considered sound trial str ategy. Id. ; Tong , 25 S.W.3d at 712. Moreover, any allegation of ineffectiveness must be firmly founded in the recor d, and the record must
affirma t ively 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 ineffectiven ess. Bone v. State , 77 S.W. 3 d 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 t he Strickland test by a p r eponderance of the evidence to prevail. Tong , 25
S.W.3d at 712. Leading Questions and Nonresponsive Answe rs Appellant lists numerous record citations where he claims his trial counsel should have objected to leading questions and nonresponsive answer s

. “Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony.” T EX

. R.
E VID

. 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

. — Texarkana4 1999, pet. ref’d). When the record provide s no reference to explain why counsel failed to object

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

rea s onable trial strategy. See id. We agree with Appellant that some of the State’s questions were leading , so me of the witnesses’ answers were nonresponsive, and his trial counsel failed to objec t , but we cannot agree that this establishes his counsel was i neffective

. Appellant does not argue that the
evidence would not have come in had his counsel object ed to t he 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 n ot have come in had his counsel objected

. Co unsel 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 objectio n

. See
Johnson v. State , No. 12

- 10

- 00110

- CR, 2011 WL 1902 066 , 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

an d nonresponsive answers

. See id. ; Young , 10 S.W.3d at 713. Therefore , he fails to meet h is burden of provin g his counsel’s ineffectiveness. See Strickland , 466 U.S. at 687, 104 S. Ct. at 2064; Tong , 25 S.W.3d at 712. Ac cordingly, we overrule Appellant’s f irst issue.
Daubert Appellant argues that his trial counsel was ineffective because he failed to reque st a
Daubert 2 hearing and obtain an adverse r uling to preserve his error regarding Crowson’s purported expert testim ony

. H e contends Crowson ’s opini on that the rapid spread of the fire was caused by the presence of an accelerant constitutes expert testimo ny

. According to Appellant, even assuming the trial court determined that Crowson was qualified to present expert t estimony,
his trial counsel’s per formance was deficient because he failed to (1) o bject to the State’s failure to disclose Crowson as an exp ert pretrial, (2) articulate the basis of his objection, and (3) conduct
a voir dire examination of Crowson outside the jury’s presence.
The State a rgues that Appellant fails to meet his burden of showing ineffectiveness for

numerous reasons. First, Appe llant fails to show what a Daubert motion would have revealed
about Crowson’s expertise , how the motion would have i mpacted his case, or the reasonin g 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 i s based on common enough knowledge to constitute a lay witness opinion

. Finally, the State ar gues that counsel’s decision not to object under Daubert could have been sound trial strategy because objecting to the credentials of Crowso n, with his over twenty years of fire department experience , would have been futile. We agree that Crowson’s opini on does not constitute expert tes timony. “A distinct line cannot be drawn between lay opinion and expert testimony because all perceptions a re 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, test imony 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.” T EX

. R. E VID

. 701. Generally,
observations t hat do not require significant expertise to interpret and are not based on a scientific theory may be admit ted as l ay 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 traini ng. Id. Even

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

ex perience and knowledge of a lay witness may establish that he is capable, without qualification as an expert, of opi ning on a subject outside the rea lm of common knowledge. I d. Only when
the fact finder may be unable to fully understand the evidence or d etermine the fact at issue without the assistance of someone with specialized knowledge must a witness be qualified as an expert. Id.
Crowson test ified that the speed at which the fire spread , as shown in the surveillance video, indicated the presence o f an accelerant. When asked whether the speed of the spread was
consisten t 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 pers onal experience working for the City of Tyler Fire Department for eighteen years as a firefi ghter and three years as a deputy fire marshal. Therefor e, 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 hear ing and fails to meet h is burden of proving his counsel’s ineffectiveness. See6 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 Tes timony Appellant argues th at his trial counsel was ineffect ive 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

. Specifica lly, h e ci tes Medina ’s testimony that about seven day s before the fire, she heard glass break outside her
home and saw Appellant at the hous e he was later accused of burning

. Appellant acknowledges
the State notified him of its “ intent to offer evidence o f any extraneous or bad act s whic h are included in the discovery materials , ” but he contend s that even if the acts are deemed disclosed,
his trial counsel’s performance was deficient in failing to object to the testimony because he

m issed the opportunit ies to 1) require the State to artic ulate the bases for the offer and 2) ask for a limiting instruction on how the jury could consider the test imony. Appellant fails to establish his trial counsel’s ineffectiveness because the cited evidence
is admissible

. The fa ilure of trial counsel to object to admissible evidence does not constitute
ineffective assistance of counsel. McFarland v. State , 8 45 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 asser t that trial coun s el’s failure to object amounted to ineffective assistance, an appellant must show the tri al 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, wro ng, or other act is not admissible to prove a defendant’s
character to show that he acted in accordance wit h his character on another occasion. T EX

. R.
E VID

. 404(b) (1). However, such evidence may be admissible for another purpose, such as proving an offe nder’s identity

. Id. 404(b)(2). Generally, on a defendant’s timely request, the state must provide reason able notice before trial that it in tends to introduce such evidence. Id. Appellant fails to show that he timely req uested such notice

. Furthermore, even if he requested
notice , he fail s to show that the evidence is inadmissible. As the State observ es, t he arsonist’s identity was at issue at trial , and the evidence is relevant to that issue

. Medina’s testimony that

s he saw Appellant at the house aft er she heard a window break shows why she noticed him subsequently driving past the house and pointed him o ut to Crowson, which led to Crowson’s contacting and ultimately linking him to the arson

. Because the testimony was admissible to7 prove Appellant’s identity as the arsonist , the trial court would not have erred in admitting the evidence over counsel’s obj ection , and Appellant fails to establish his counsel’s ineffectiveness

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

. Regarding trial counsel’s failure to request a limiting instruction , assuming without deciding that counse l’s performance was deficient in that regard , Appellant fails to establish that the deficient performance prejudiced his defense. First, the State d id not argue that Appellant
must be the arsonist because he acted in accordance with his character as a per son who trespasses
and breaks windows , and we find it unlikely the jury use d the evidence for that purpose.
Moreover , the charge explicitly forbade t he 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 h is 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 re asons , we overrule Appellant’s third issue.
Video s Appellant argues that his trial counsel was ineffecti ve because he failed to object to the admission of State’s Exhibit 6, a flash drive containing the cell phone and surv eillance video s. He contends tha t the State failed to lay the proper predicate for the surveillance videos’
admission because the ir sponso r 1) did not know the recording system was operational, 2) had no personal knowledge of the recorded events , 3) confir med that the videos’ time

- stamp information was inaccurate, and 4) confirmed that the videos inaccurately depict ed the colors of objects. Consequently, Appellant argues, his counsel’s failure to object to the videos ’ admission prevents this Court from prop erly evaluating their admissibil ity. We disagree. Any proffered item of evidence may be aut henticated by “evidence sufficient to support a finding that the item is what the proponent claims it is.” T EX

. R. E VID

. 901( a )

. Conclusive proof of authenticity before admitting disputed eviden ce is not required. Fowler v. State , 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). “Evidence may be authen ticated 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 6 33, 638 (Tex. Crim. App. 2012). Rule 901’s st andard for authentication has been described as a “liberal8 standard of admissibility.” Fowler , 544 S.W.3d at 849. Co nsistent with the concept that c ounsel 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. S ee 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 E xhibit 6 were the cell phone
videos her partner recorded on November 1 and the videos recorded by her surv eillance cameras

on the night of November 6. She further testified that she reviewed the videos and they are fair
and accurate recordings with no alt erations of the events as they happened. Regarding the surveillance videos, Medina testified that the tim e reflected in them was an hour late because her computer had not yet adjusted to a time change

. Medina explain ed the location s of the cameras
and id entified various items seen in the videos

. On cross

- examination, she agreed that some of
the colors depic ted in the videos a re in a ccurate because everything in the videos appears as black, white, or gray.
Based on the re cord before us, we cannot conclu de that Appellant established his trial counsel was ineffective in failing to object to the video s’ admiss ion. First, the trial court would
not have erred in admitting the evidence over counsel’s objection because the evide nce presented by the State satis fies the requirements of Rule 901 and authenticates the evidence

. See T EX

. R.
E VID

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

. Moreover, even if the Stat e ’s authentication evidence was insuffic ient , Appellant does not contend, and the record does not show , that the State could not have provided adequate founda tion through additional evidence

. See Holland , 761 S.W.2d at
318

- 19; Darnell , 2012 WL 626318, at *2

. Because Appellant fails to establis h that his counsel’s failure to object to the video s’ admission constituted deficient performance or prejudiced his
de fense , he fails to meet h is burd en of proving his counsel’s ineffectiveness. See Strickland , 466 U.S. at 687, 104 S. Ct. at 2064; Tong , 2 5 S.W.3d at 712. Accordingly, we overrule Appellant’s
f our th issue.9 Cumulative Effect Appellant a rgues that the cum ulative effect of his trial counse l’s deficient performance

re sulted in an improper guilty verdict and an improper sentence

. Although multi ple errors m ay cumulatively rise to the point of harmfulness, the court of criminal appeals has never foun d that

non
- errors may in their cumulative ef fect cause error. Gamboa v. State , 296 S.W

. 3d 574, 585 (Tex. Crim. App. 2009). We decided above that cou nsel’s performance in each of Appellant’s
issues either was not deficient or , assum ing without deciding it was defic ient, did not prejudice
his defens e. 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 d ifferent.” Strickland , 466 U.S. a t 694, 104 S. Ct. at 2068; Tong , 25 S.W.3d at 712. Because Appellant fails to show that h is tria l counsel ’s performance prejudiced his defense , he fails to meet h is burden of proving his counsel’s ineffectiveness. See
St rickland , 466 U.S. at 687, 104 S. Ct. at 2064; Tong , 25 S.W.3d at 712. Accordingly , we overrule Appellant’s f ifth issue.

E VIDENTIARY S UF FICIENCY 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 R eview and Applicable Law
The Jackson v. Virginia 3 legal sufficiency standard is the only standard that a reviewing

cou rt should apply in determining whe ther 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 sufficie ncy is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a
criminal conviction. See Ja ckson , 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 r eviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essent ial elements of the offense beyond a reasonable doubt

. See Jackson , 443 U.S. at 320, 99 S. Ct. at 2789; see also John son 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 (1 979).10 examined in the light most favorable to the verdict. See Jacks on , 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 det erminations, 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 su pports conflicting inferences must presume

— even if it does not affirmatively appear in the record

— that

t he trier of fact resolved any such conflicts in fa vor of the prosecution, and must defer to that
resolution.” Jackson , 443 U.S. at 326, 99 S. Ct. at 27 93. The sufficiency of the evidence is measured against the offense as defined by a hypothetically corr ect jury charge. See Malik v. State , 953 S.W.2d 234 , 240 (Tex. Crim. App. 1997). Such a charge would include one tha t “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the state’s burden of proof or unnecessar ily restrict the state’s theories of liability, and a dequately describes the particular offense for which the
defendan t is tried.” Id. To prove Appell ant guilty of arson as charged in this case , the State was required to prove that he , with intent to dam age or destroy a habitation located at 205 South Beckh am Avenue in Tyler, started a fire, knowing that the habitation was within Tyler ’s city limits. S ee T EX

. P ENAL C ODE A NN

. § 28.02 ( a ), (d) (2)

. Identity Appellant argues that no rational trier of fact co uld have found the evidence suffi cient to prove his identity as the arsonist

. We disagree. “A criminal conviction ma y be based upon
circumstantial evi dence.” Merritt v. State , 368 S.W.3d 5 16 , 525 (Tex. Crim. App. 2012). Circumstantial evidence is as pro bative as direct evidence in establishing g uilt, and circumstantial evidence alone can be sufficient to establish guil t. Id. When reviewing the
suffic iency 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

. O n Sunday , November 1 , at around 11:00 p.m. or 1 2:00 a.m., she

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

- facing
bedroom wi ndow and saw an elderly white man at 205 South Beckham. He slowly walked11 across the porch from the left side of the house and descend ed t he 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 f ive 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 dr ive on Elm Street toward her house and turn south o n Beckham, look ing at the house at
205 South Beckham as he drove past it

. He drove past the house so slowly that traffic was
forced to ma neuver around him to proceed

. On Thursday, Medina’s family installed surveillance
cameras at their home.
Medina said that she was not at home Friday n ight 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 tr ial, Medina i dentified Appellant as the man that she identified to
Crowson that day , saw a t 205 South Be ckham on Sunday , and saw driving past 205 South
Beckham on Monday through Friday

. She identified a truck in the surve illance video s ten to fifteen minu tes before the fire started as the truck that she saw Appellant driving that week.
Crowson testified t hat when he spoke with Medina on Saturday, she told him about the events she witnessed that week and gave him a detail ed description of the vehicle the man was driving. W hen Medina saw and identified Appellant to him that day , Crowson ran to his car and
f ollowed him

. Appellant drove south on Beckham , took two left turn s , stopped in front of a house on South Beverly Aven ue , exited his truck, and sat on a retaining wall

. Crowson stopped and contacted Appellant , who i dentified himself as K. Gabel. When Cro wson 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 th e truck’s
bed

. H e further observe d two gasoline cans in the bed. Crowson identified Appellant in court as the person he contacted that S a turday.
Crowson testified that Medina called him Saturday evening and told him the surveillance
cameras had recorded the events on Friday night. He de scribed how t he 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

. Crowso n12 described how t he video also sho ws a person on the wrap
- around porch at the southeast corner of
the house when the fire start s

. The per son 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 old er man and appear s 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 start s match es Appellant’s vehicle

. Aft er Appellant’s arrest, Crowson sea rched his vehicle and found
two boxes of matches. Considering the combined and cumulative force of all t he evidence and v iewing the evidence in the light most favorable to the verdict , we conclude that the jury was rationa lly justified in finding, beyond a reasonable doubt, that Appellant is the person who committed the
arson in this case

. See T EX

. P ENAL C O DE A NN

. § 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 Ap pellant argues that the evidence is insufficient to prove that an accelerant was used in
the offense , es pecially 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 acceleran t, 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, t he arson statute provides the following:

A person commits an offense if the person star ts a fire, regardless of whether the fire continues after ignitio n, 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 S ubsection (a) . . . is a felony of the first degree if it is show n on the trial of the offense that . . . the property intended to be damaged or destroyed by the actor w as a habitation[.]13 T EX

. P ENAL C ODE A NN

. § 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. 20 15) (indictment’s non

- elemental phrase “by tr ying to resolve a pending crimina l case” should not be incorporated into hypothetically correct jury charge). Consequently, we do not con sider 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 overru le Appellant’s sixth and seventh issue s

.

D ISPOSITION Having overruled Appellant’s first through seven t h issue s , we affirm the trial court’s judgment.
J AMES T. W ORTHEN Chief Justice
Opinion delivered July 31 , 20 2 3. Panel consisted of Worthen, C.J., Ho yle , J., and Neeley, J.

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## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 3 1, 2023

NO. 12

- 22

- 00206

- CR

KERMIT FRANCIS GABEL , Appellant V. THE STATE OF T EXAS , Appellee

Appeal from the 114t h D istrict 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 ther efo re ORDERED, ADJUDGED and DECREED that the judgmen t of the court below be in all things affirmed , for which execution may issue, and that this
decision be certif ied to the court below for observance.
James T. Worthen , Chief Justices

. Panel consisted of W ort hen, C.J., Hoyle, J., and Neeley, J.