No. NO. 14-07-00800-CR
Opinion filed December 18, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 434th District Court Fort Bend County, Texas, Trial Court Cause No. 42,547.
Panel consists of Justices YATES, SEYMORE, and BOYCE.
WILLIAM J. BOYCE, Justice.
Appellant Jaime Noel Charles challenges his conviction following a jury trial for arson of a habitation. The trial court assessed punishment at confinement for 40 years. Appellant contends that the trial court erred by (1) excluding exculpatory testimony from a co-defendant; (2) excluding evidence contained within the fire investigator's case presentation packet ("DA packet"); (3) refusing appellant's requested jury instruction that one State witness was an accomplice as a matter of law; and (4) denying appellant's motion for directed verdict. We affirm.
Background
On December 28, 2002, Deputy Constable Jenny Robles was on routine patrol in Sugar Land when she was dispatched at approximately 11:40 p.m. to 1903 Auburn Trails in the Greatwood subdivision in response to an alarm. When Robles arrived at that address, she saw smoke coming from the back of the home located there. Robles also noticed the back yard gate was open, and she entered to investigate. Once in the back yard, Robles saw flames and smoke coming from the home; she then notified her dispatcher to send firefighters and attempted to evacuate nearby homes. Firefighters arrived within minutes and immediately searched the home. Firefighters determined that no one was inside, so they began fighting the fire and spraying water on nearby homes to keep the fire from spreading. Two firefighters suffered minor injuries while extinguishing the fire, and the home suffered extensive fire, smoke, and water damage. Investigators determined that the fire was the result of arson, with two different points of origin. Investigator Robert Baker asked the homeowners, Melody and Charles Bentley, if they had any idea who may have started the fire. The Bentleys gave Investigator Baker the name of Jonathan Silva, their teenage daughter's one-time boyfriend. After several weeks of investigation, Baker was unable to collect enough evidence to charge Silva or anyone else with the arson. In May 2005, an individual contacted the Fort Bend Sheriff's Department and implicated Silva, appellant, and Jason DeLuna in the arson. DeLuna was Silva's cousin, and appellant was a friend of Silva and DeLuna. Investigator Baker contacted DeLuna and arranged a meeting with him to discuss the arson. During his meeting with Investigator Baker, DeLuna cooperated fully in the investigation and provided details and observations regarding the arson. DeLuna told Investigator Baker that he had been shooting pool, drinking, and smoking marijuana with Silva and appellant on the afternoon of December 28, 2002. Later that day, he drove Silva and appellant to Greatwood subdivision, dropped them off, drove around for a few minutes, and then picked them up. DeLuna told Investigator Baker that Silva and appellant used gasoline to start the fire, and that appellant cut his hand while breaking a window to pour gasoline into the home to start the fire. Investigator Baker then went to speak with appellant about the fire. Once Investigator Baker mentioned the subject of his inquiry, appellant pulled his hands from Baker's view. Despite appellant's movements, Investigator Baker saw a scar on appellant's hand which was consistent with DeLuna's description. Investigator Baker never supplemented his original offense report to reflect the information about the scar on appellant's hand supplied by DeLuna in 2005. Jonathan Silva refused to meet with Investigator Baker to discuss the fire. DeLuna testified at trial that he did not know of any plan by Silva or appellant to commit arson beforehand, and that he did not take Silva seriously earlier in the afternoon when he had mentioned wanting to burn down the Bentleys' home because Silva was intoxicated when he made those statements. DeLuna testified that he never saw Silva or appellant carrying any containers of gasoline, but he could smell gasoline once they got back in the car at Greatwood. DeLuna testified that he believed Silva and appellant had set the fire once he saw flames lighting up the sky shortly after they returned to the car. DeLuna testified that he did not call the police because he was scared and did not want to get Silva or appellant in trouble. DeLuna also testified that appellant had a cut on his right hand, which he helped appellant clean when they returned to DeLuna's home. DeLuna described glass in the wound, and stated that appellant told him he got the cut from breaking a window. DeLuna testified Silva then told him that appellant punched out a window at the house so Silva could pour gasoline inside. Appellant offered no evidence or witness testimony in his defense. Appellant did not dispute that the Bentleys' home was destroyed by arson, but asserted that the fire was ignited by Silva and DeLuna. Analysis
Appellant challenges the trial court's exclusion of (1) exculpatory testimony from Silva that appellant asserts is admissible as a statement against Silva's penal interest; and (2) certain evidence contained within the DA packet that appellant claims establishes DeLuna as a co-defendant. Appellant also challenges the trial court's refusal to instruct the jury that DeLuna was an accomplice as a matter of law. Additionally, appellant challenges the trial court's denial of his motion for a directed verdict. I. Exclusion of Silva's Exculpatory Testimony
Appellant challenges the trial court's exclusion of exculpatory testimony from co-defendant Jonathan Silva as hearsay. We review a trial court's ruling on admission of evidence for abuse of discretion. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). The dispute here focuses on the hearsay rule, an established evidentiary rule trial courts may invoke to exclude otherwise relevant and admissible evidence. See Tex. R. Evid. 802. The rule is applied equally to the State and to the appellant, and is not arbitrary in its exclusion of defense evidence; rather, the rule exists to ensure the reliability of the statements introduced into evidence by both sides. See Green v. State, 876 S.W.2d 226 (Tex.App.-Beaumont 1994, no pet.). A statement which, at the time of its making, tended to subject the declarant to criminal liability may be admissible in criminal cases only if corroborating circumstances clearly indicate the trustworthiness of the statement. Tex. R. Evid. 803(24); see also Woods v. State, 152 S.W.3d 105, 112 (Tex.Crim.App. 2004) (en banc) (to be admissible under Rule 803(24), statement must be "self-inculpatory with corroborating circumstances to indicate the trustworthiness of the statement."). The party seeking to introduce the hearsay statement into evidence has the burden to clearly prove its trustworthiness. See Cofield v. State, 891 S.W.2d 952, 955 (Tex.Crim.App. 1994) (en banc). Shortly before trial, Silva approached the District Attorney's Office about giving a statement that would implicate DeLuna and exculpate appellant. Silva previously pled guilty and was awaiting sentencing for his participation in the arson. Investigator Baker testified, outside the jury's presence, that the day before trial _ and nearly five years after the arson _ Silva told the prosecutor, in Investigator Baker's presence, that appellant was driving the car, and dropped him and DeLuna off in Greatwood. Silva then stated that he and Deluna ignited the fire. Investigator Baker testified further that Silva changed his story during the meeting with Investigator Baker and the prosecutor to claim that he and DeLuna drove to Greatwood without appellant, parked, and committed the arson themselves. Investigator Baker stated that none of Silva's statements were made under oath, and the prosecutor warned Silva of the potential for aggravated perjury charges should he testify untruthfully in court. Silva previously had refused to give a statement to law enforcement and came forward only after he pled guilty and spent time in jail with appellant and members of the Mexican Mafia gang. The statements Silva made to Investigator Baker and the prosecutor were inconsistent with Investigator Baker's findings and with statements previously given to Investigator Baker by DeLuna and Deirdre Krejci, Silva's former girlfriend. Krejci's sworn statement revealed that Silva threatened to burn her house down after they got into arguments, and that he bragged to her about how he and appellant set fire to the Bentleys' home and were picked up afterward by DeLuna. Krejci's statement also revealed that Silva told her that he and appellant broke a window at the back of the house and poured a gasoline mixture into the house to start the blaze, and that DeLuna asked Silva and appellant what happened when they entered DeLuna's car. We consider several factors in addressing the trustworthiness of a statement offered under Rule 803(24): (1) whether the guilt of the declarant is inconsistent with the guilt of appellant; (2) whether the declarant was so situated that he might have committed the crime; (3) the timing of the statement; (4) the spontaneity of the statement; (5) the relationship between the declarant and the party to whom the statement was made; and (6) the existence of independent corroborative facts. Woods, 152 S.W.3d at 113. Applying the Woods factors to Silva's unsworn statements in the presence of the prosecutor and Investigator Baker, we conclude that appellant failed to show Silva's statements were trustworthy. Silva's guilt is consistent with appellant's guilt. Silva admitted that he committed the arson in this case; he is merely attempting to place blame on a different co-defendant. The timing of Silva's statement _ immediately before appellant's trial and after spending time in jail with appellant and members of the Mexican Mafia _ does not enhance its trustworthiness. Silva's declaration was not spontaneous; rather, he made an appointment to speak with the prosecutor and Investigator Baker just before appellant's trial. Furthermore, the only potentially corroborative evidence supporting Silva's statements is DeLuna's undisputed presence in Greatwood on the evening of the fire; other evidence in this case contradicts Silva's unsworn statements. Under the circumstances of this case, we cannot say that the trial court abused its discretion in excluding Silva's exculpatory statements as hearsay due to their untrustworthiness. See id. We overrule appellant's issue regarding exclusion of exculpatory testimony from his co-defendant. II. Exclusion of DA Packet
Appellant also challenges the trial court's exclusion of portions of the DA packet in which DeLuna was designated as a co-defendant of Silva and appellant. The trial court excluded these portions of the DA packet on multiple grounds, including hearsay. We review the trial court's ruling excluding this evidence under the same abuse-of-discretion standard used in Part I. Hearsay is a statement, other than one made by the declarant while testifying at trial, offered as evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). The "Public Records" exception to the hearsay rule specifically excludes "in criminal cases matters observed by police officers and other law enforcement personnel." Tex. R. Evid. 803(8)(B). Investigator Baker testified that, in his position as an arson investigator, he is both a Texas peace officer and a firefighter. In addition, Investigator Baker testified that he is a deputized United States Marshal and member of an Alcohol, Tobacco, and Firearms task force. The DA packet included Investigator Baker's offense report, notes, and other documents pertaining to his investigation of the arson at the Bentley's home. The trial court concluded that the offered contents of the DA packet were not admissible under Rule 803(8)(B) because they were "a tract of an investigation" and therefore fell within the exclusion of that rule which makes law enforcement reports inadmissible. Appellant offers no argument on appeal explaining how the portions of the DA packet offered are not hearsay or how they would not be inadmissible under Rule 803(8)(B). In light of Investigator Baker's status as a law enforcement official, the plain language of Texas Rules of Evidence 801(d) and 803(8)(B), and appellant's failure to provide any argument on appeal refuting the trial court's classification of the statements offered from the DA packet as inadmissible hearsay under these rules, we cannot say that the trial court abused its discretion in excluding those portions of the DA packet in which DeLuna was designated as a co-defendant. We overrule appellant's issue regarding exclusion of certain portions of the DA packet. III. Refusal to Instruct Jury That DeLuna Was an Accomplice as a Matter of Law
Appellant challenges the trial court's refusal to instruct the jury that DeLuna was an accomplice as a matter of law. Instead, the trial court instructed the jury that it could consider whether DeLuna was an accomplice as a matter of fact. A person is considered an accomplice if he or she could be prosecuted for the same offense as the defendant or for a lesser included offense. Blake v. State, 971 S.W.2d 451, 454-55 (Tex.Crim.App. 1998) (en banc). The test is whether there is sufficient evidence in the record to support a charge against the witness alleged to be an accomplice. Id. at 455. If the evidence clearly shows that the witness was an accomplice as a matter of law, the trial court must so instruct the jury; otherwise, the court should present the matter for consideration by the jury. Id. An accomplice as a matter of law instruction is proper only if "there exists no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law." Id. (quoting DeBlanc v. State, 799 S.W.2d 701, 708 (Tex.Crim.App. 1990)). An accomplice as a matter of fact instruction is proper when the evidence in the case is conflicting and it is unclear whether the witness is an accomplice, even if the evidence favors a conclusion that the witness was an accomplice. Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App. 1987). If a witness's testimony shows his participation in an offense but also includes exculpatory assertions, an accomplice as a matter of fact instruction is proper. See Marlo v. State, 720 S.W.2d 496, 500-01 (Tex.Crim.App. 1986) (en banc). Arson of a habitation is committed when one starts a fire with intent to destroy or damage any habitation knowing that it is located on property belonging to another. Tex. Penal Code Ann. _ 28.02(a)(2)(D) (Vernon 2003). Appellant argues that DeLuna was an accomplice as a matter of law because (1) Silva commented during the afternoon of December 28, 2002 that he wanted to burn down the Bentleys' home; (2) DeLuna waited in the car for Silva and appellant to return after dropping them off at Greatwood; (3) DeLuna realized that Silva and appellant likely set fire to the Bentleys' home shortly after they returned to the car; (4) DeLuna continued to drive Silva and appellant from the scene of the fire after realizing they likely set the fire; (5) DeLuna noticed the cut on appellant's hand after the fire and assisted in cleaning the wound and removing glass from it; and (6) DeLuna did not voluntarily report Silva's and appellant's involvement in the arson to police. Appellant's argument, however, ignores that arson of a habitation or any lesser included offense requires the element of intent _ an element that the evidence in this case does not clearly establish with respect to DeLuna. Thus, the evidence would not support the same charge or a lesser included offense against DeLuna. Appellant's argument also overlooks the exculpatory testimony offered by DeLuna that he had no role in starting the fire; he did not take Silva's statements about wanting to burn down the Bentleys' home seriously; he did not know of any plan to burn down the Bentleys' home; and he did not know for certain that Silva and appellant had set the fire until they admitted to him that they had done so. The evidence in this case conflicts and is therefore unclear regarding whether DeLuna was an accomplice to the arson involved. In addition, DeLuna's testimony _ while establishing that he drove Silva and appellant to and from the Bentleys' home _ also includes exculpatory statements. Under these circumstances, it was appropriate for the trial court to instruct the jury about accomplice witnesses as a matter of fact rather than as a matter of law. We cannot say that the trial court erred in so instructing the jury. See Blake, 971 S.W.2d at 454-55; Gamez, 737 S.W.2d at 322; Marlo, 720 S.W.2d at 500-01. We overrule appellant's issue regarding the propriety of instructing the jury about accomplice witnesses as a matter of fact rather than of law. IV. Denial of Motion for Directed Verdict
Appellant challenges the trial court's denial of his motion for a directed verdict at the close of the State's evidence. A challenge to the trial court's ruling on a motion for a directed verdict is actually a challenge to the sufficiency of the evidence to support a conviction. Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App. 1993). In reviewing legal sufficiency of the evidence, an appellate court will examine the evidence in the light most favorable to the State to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). When reviewing legal sufficiency of the evidence, the court does not sit as a thirteenth juror and may not re-evaluate the weight and credibility of the record evidence or substitute its judgment for that of the fact finder. Dewberry, 4 S.W.3d at 740. Reconciliation of conflicts in the evidence is within the exclusive province of the fact finder. See Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). The appellate court's duty is not to reweigh the evidence, but to serve as a final due process safeguard ensuring only the rationality of the fact finder. See Williams v. State, 937 S.W.2d 479, 483 (Tex.Crim.App. 1996). An appellate court faced with a record of facts that supports conflicting inferences must presume _ even if not obvious from the record _ that the finder of fact resolved any such conflicts in favor of the State, and must defer to that resolution. Jackson, 443 U.S. at 326. Appellant did not dispute that arson of a habitation was committed; his defense was that DeLuna assisted Silva in setting the fire, not him. Appellant argues that the accomplice witness rule requires us to ignore DeLuna's testimony in analyzing the legal sufficiency of the evidence because there was insufficient non-accomplice evidence to corroborate this testimony. See Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App. 1994) (en banc). The accomplice witness rule requires only that there be some non-accomplice evidence which tends to connect the accused to the commission of the offense alleged. Id. It is not necessary that the non-accomplice evidence alone be sufficient to establish the accused's guilt beyond a reasonable doubt, nor must the non-accomplice evidence directly link the accused to commission of the offense. Id. In determining whether an accomplice's testimony is corroborated by other evidence, we review the evidence in the light most favorable to the jury's verdict. Id. Investigator Baker testified that he received information in May 2005 implicating Silva, DeLuna, and appellant in the arson. Investigator Baker testified that he received information indicating that appellant cut his hand from breaking a window at the Bentleys' home so that Silva and appellant could pour gasoline into the home to start the fire. Investigator Baker testified that when he met with appellant and told him that he wanted to question him about the fire, appellant pulled his hands from Investigator Baker's view. Investigator Baker testified that he saw the scar on appellant's hand, and it was consistent with the description he had been given. Appellant displayed the scar to the jury. Additionally, Krejci's sworn statement to Investigator Baker corroborated DeLuna's testimony and noted that Silva bragged to her about how he and appellant set fire to the Bentleys' house. Even if we were to assume that DeLuna was an accomplice, the above non-accomplice evidence sufficiently corroborates his testimony when viewed in the light most favorable to the verdict; thus, we may consider DeLuna's testimony in reviewing the legal sufficiency of the evidence in this case. See Gill, 873 S.W.2d at 48. DeLuna testified that he drove Silva and appellant to Greatwood subdivision; dropped them off; drove around for a few minutes; and then picked them up. DeLuna testified that he smelled gasoline once Silva and appellant returned to the car, and he realized that Silva and appellant likely set the Bentleys' house on fire once he saw flames lighting up the sky after they entered the car. DeLuna testified that he assisted appellant in cleaning a cut on his hand once they returned to DeLuna's home; that the wound contained glass; and that appellant told him that he sustained the cut when he broke a window. DeLuna testified that Silva told him appellant punched out a window at the Bentleys' house so Silva could pour gasoline inside. Viewing the evidence in this case in the light most favorable to the State, a rational fact finder could have found beyond a reasonable doubt that appellant ignited the fire at the Bentleys' house. See Dewberry, 4 S.W.3d at 740. We overrule appellant's objection regarding the trial court's denial of his motion for a directed verdict. Conclusion
The trial court's judgment is affirmed.