Opinion issued November 20, 2014




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-14-00004-CR
                            ———————————
                   KELVIN WAYNE WILLIAMS, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 351st District Court
                            Harris County, Texas
                        Trial Court Case No. 1407407


                          MEMORANDUM OPINION

      Appellant was convicted of felony arson and sentenced to 55 years’

confinement and assessed a $10,000 fine. In two issues, he argues that the jury’s

finding that he used or exhibited a deadly weapon was improper, and that the

evidence is insufficient to support his conviction. We affirm.
                            EVIDENCE AT TRIAL

      In 2010, appellant lived with his girlfriend, Charlie Davis, and her three

children at Davis’s townhouse on Twister Pine Court in Houston.              Davis’s

townhouse was near the middle of a row of six attached townhomes.              Each

townhouse had a front door facing the street and a garage at the back of the unit

facing an alley. In October of 2010, all six townhouses in Davis’s building were

occupied.

      Davis testified that, on October 15, 2010, her car broke down as she was

trying to leave that morning. A neighbor, Aaron Greenwood, was passing by and

offered to go find someone to look at the car. Greenwood returned with his friend,

Willow. At some point during the day, appellant came home and was angry to

discover Greenwood and Willow in the garage working on Davis’s car. According

to Davis, appellant’s anger appeared to be jealousy driven, as appellant is a

mechanic and was irritated that Davis asked someone else for help.

      Appellant pulled a knife on Greenwood and Willow, threatened to “kill all of

you–all,” and ordered them to leave. Appellant chased Greenwood down the

street. When Greenwood got to his car, he pulled out a tire iron to defend himself.

Eventually, Greenwood got in his car and drove off.      Appellant then also left.

Someone called the police about the incident, and officers came out to the area.

They were not able to locate appellant, but talked to Greenwood and Davis.


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      Although Davis did not know Greenwood well and Greenwood had never

previously been to her home, Greenwood came back to Davis’s townhouse and

ended up spending a large part of the day with Davis. Greenwood and Davis drank

beer, played video games, and chatted with Davis’s children. Greenwood left

sometime after dark and Davis settled in with her kids on the couch to watch a

movie. Appellant later called and asked Davis to come pick him up. She testified

that it was an odd request, as he had his own vehicle with him. She told him to

drive himself home, which appeared to anger him.

      Davis and her children fell asleep on the couch late that night watching their

movie. Davis woke up sweaty about 2:00 a.m. and immediately got up to go check

the temperature on the thermostat. When she turned around to return to the sofa,

she saw that the townhouse’s front window, which was behind the sofa, was

orange. She then looked over at the front door and saw flames coming in from

under the crack of the door.

      She frantically woke up her kids and raced them towards the garage at the

back of the townhouse. When she discovered that the garage door was hot, she

realized that the garage was on fire as well. She escaped through a sliding glass

door to a patio, and then she and her kids scaled a fence to the neighbors’ patio.

They pounded on the neighbors’ patio door to rouse them, and then they all

escaped through the neighbors’ front door.


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      In the front yard, they saw Greenwood and appellant rolling around on the

ground fighting. Appellant’s clothes were on fire. Davis saw appellant’s Ford

Explorer—with its engine still running and the driver door open—parked right in

front of her townhouse. Davis and her neighbors ran up and down the building

getting residents out while they waited for the fire department to arrive.

      Another resident of the townhouse building testified to running outside after

hearing Greenwood and appellant fighting. Greenwood called out to her to call the

police at the same time she realized that the building was on fire. She called the

police and assisted in waking up neighbors.

      Greenwood testified that, before the fire, he had been standing talking with a

friend under a tree across from his own house when appellant drove by in his Ford

Explorer and turned down the alley behind the townhouse building. Greenwood

starting walking in that direction to confront appellant because he was still angry

about appellant threatening him earlier in the day. By the time Greenwood made it

to the back alley, he saw appellant climb into his truck and drive around towards

the front of the townhouse. Greenwood then set off to follow appellant around

front. When Greenwood got to the front of the townhouse, appellant was there

with a gas can throwing gasoline on the walls and all around Davis’s townhouse.

Greenwood ran toward appellant, pushed him against the wall, and suddenly there

was a “whoosh” from flames started by the lighter in appellant’s hand. Appellant’s


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clothes caught fire and then appellant tried to catch Greenwood on fire, telling him,

“I’m going to burn your black ass up, too.” Greenwood grabbed appellant and

flipped him to the ground. That extinguished the fire on appellant, and the two

started rolling around on the ground fighting. Greenwood was also yelling, trying

to rouse people in the homes to alert them that their homes were on fire. Appellant

eventually passed out and was loaded into an ambulance.

      Ultimately, it took seventy-five firefighters more than ten hours to put out

the fire. The entire townhouse building was destroyed, and Davis, her family, and

their neighbors lost everything in the fire. Davis and her kids spent a few hours at

Greenwood’s house, moved to a hotel for a few nights, and then to a Red Cross

shelter. Davis and her family eventually moved to Mississippi.

      Various expert witnesses, including arson investigators, testified at trial that

(1) the fire was set by an ignitable liquid; (2) the fire had two unconnected points

of origin (i.e., the garage and in the front of the townhouse); (3) a melted gasoline

can was found in front of the townhouse; and (4) appellant’s clothes had gasoline

on them. Consistent with Greenwood’s testimony, surveillance tapes were also

introduced at trial showing (1) a Ford Explorer driving into the back alley, (2) a

flash of the fire starting behind the building in the garage area, and (3) the vehicle

driving back around to the front of the townhouses while light flickering from the

garage fire reflects against the trees. The Explorer stops in front of the townhouse


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and then the driver gets out and walks towards the front door of the townhouse,

which is outside the view of the camera. A second huge flash is seen, followed by

blurry footage of two people tussling on the ground.

        Finally, an “Enrollment for Life Insurance” form was introduced at trial.

The form was found in appellant’s pocket in an addressed envelope when he was

taken to the hospital. The application identified Davis as the “Proposed Insured,”

identified appellant as the “Beneficiary,” and identified the beneficiary’s

“Relationship to Proposed Insured” as “husband.” The form contained a signature

for Davis, and was dated October 13, 2010, three days before the fire. Davis

testified at trial, however, that she had not seen the application before, and that—

although it purportedly bore her signature—the handwriting on the application was

not hers, it was actually appellant’s. Davis’s daughter likewise testified that none

of the handwriting on the life insurance application was her mother’s.

        The jury convicted appellant of arson and found that he “used or exhibited a

deadly weapon,” i.e. fire. Appellant plead true to a prior conviction of aggravated

rape, and the jury assessed punishment at 55 years’ confinement and a $10,000.00

fine.   The court entered judgment in accordance with the jury’s verdict, and

appellant timely appealed.

                               ISSUES ON APPEAL

        On appeal, appellant brings forth the following issues:


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      1.     “The deadly weapon finding was inappropriate because the use
             of fire was not intended as a weapon.”

      1.     “The evidence presented at trial was insufficient to support a
             conviction for arson.”

                       FIRE AS A “DEADLY WEAPON”

      In his first point of error, appellant argues that (1) this Court’s decision in

Mims v. State, 335 S.W.3d 247 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d),

holding that fire can be a deadly weapon in an arson case, was wrongly decided,

and (2) in any event, this case is distinguishable from Mims.

      A “deadly weapon” is defined as “(A) a firearm or anything manifestly

designed, made, or adapted for the purpose of inflicting death or serious bodily

injury; or (B) anything that in the manner of its use or intended use is capable of

causing death or serious bodily injury.”       TEX. PENAL CODE ANN. § 1.07(17)

(Vernon Supp. 2014).      In Mims, the defendant intentionally set an apartment

building on fire, and one of its residents died in the fire. 335 S.W.3d at 248. On

appeal, the defendant challenged the trial court’s finding, included in the judgment,

that the defendant “used or exhibited a deadly weapon, namely, fire, during the

commission of a felony offense.” Id. Specifically, the Mims defendant argued that

fire should not qualify as a deadly weapon in an arson case because “the act of

starting a fire that results in bodily injury is an essential element of the offense of

first-degree arson.” Id. at 251. Accordingly, the defendant argued, “such conduct


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cannot both be an element of the charged offense and be used to support a deadly

weapon finding.”     Id. We rejected that argument, noting that “[s]everal Texas

courts of appeals have recognized that conduct which is an element of an offense

can also be the basis of a deadly weapon finding.” Id.; see also McNeil v. State,

398 S.W.3d 747, 755 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (rejecting

argument that deadly weapon paragraph in indictment was redundant of the

underlying crime of arson).

      Here, appellant insists that Mims was wrongly decided because a deadly

weapon finding “would be essentially automatic in every arson case,” as “every

arson case involves the use of fire.” Appellant cites no authority in support of his

argument that Mims was incorrectly decided, and Mims’s rejection of appellant’s

arguments and holding that the use of fire can support a deadly weapon finding in

an arson case is binding precedent, see Medina v. State, 411 S.W.3d 15, 20 n.5

(Tex. App.—Houston [14th Dist.] 2013, no pet.) (“absent a decision from the

Court of Criminal Appeals or this court sitting en banc that is on point and contrary

to the prior panel decision or an intervening and material change in the statutory

law, we are bound by our prior panel decision”), that has since been applied and

followed by another panel of this Court. McNeil, 398 S.W.3d at 755.

      Alternatively, appellant insists that the facts here are distinguishable from

Mims, and that—as a matter of law—fire cannot be considered a deadly weapon in


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this case. Appellant points out that, in Mims, a woman died in the fire set by the

defendant. 335 S.W.3d at 249. Similarly, in Taylor v. State, 735 S.W.2d 930, 949

(Tex. App.—Dallas 1987) abrogated on other grounds by Gaines v. State, 761

S.W.2d 2 (Tex. Crim. App. 1988)—the case we relied upon in Mims—the

defendant’s husband died in the fire set by the defendant. According to appellant,

this case is thus distinguishable because “no one was injured in the fire.”1

      As noted above, a deadly weapon can be “anything that in the manner of its

use or intended use is capable of causing death or serious bodily injury.” TEX.

PENAL CODE ANN. § 1.07(17)(b) (emphasis added). Although “there must be

evidence that others were actually endangered” rather than “a hypothetical

potential for danger if others had been present” to sustain a deadly weapon

finding,2 Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003), there is no

requirement that anyone actually be injured. Torching a fully occupied building in

the middle of the night is using fire in a way that “is capable of causing death or

serious bodily injury.” Moreover, appellant set both the front and back of Davis’s

townhome on fire knowing that she and her children were home, in what could
1
      He also contends that there would not have been a fire at all if Greenwood had not
      attacked him, which ignores the evidence that appellant had already set Davis’s
      garage on fire before Greenwood tackled appellant in the front yard.
2
      This evidentiary burden does not apply if the legislature has defined a particular
      object as a deadly weapon. See Coleman v. State, 145 S.W.3d 649, 651 n.4 (Tex.
      Crim. App. 2004) (rejecting argument that, given the specific situation, any risk of
      danger from firearms was purely hypothetical because “Section 107(a)(17) of the
      Texas Penal Code specifically defines firearms as deadly weapons”).
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only have been a plan to trap them inside with no means of escape. The gratuitous

fact that no resident, firefighter, or bystander was ultimately injured or killed by

the massive resulting fire does not render the evidence insufficient to demonstrate

that fire was used as a deadly weapon in this case.

      We overrule appellant’s first point of error.

                             LEGAL SUFFICIENCY

      In his second point of error, appellant argues that the “evidence presented at

trial was insufficient to support a conviction for arson.” He does not dispute that

the fire was a result of arson, but contends that the State put forth insufficient

evidence to establish that he is the person who set the building on fire.

      To sustain an arson conviction, the State must show that the accused set the

fire or was “criminally connected therewith.” Merritt v. State, 368 S.W.3d 516,

525 (Tex. Crim. App. 2012). Although the State must prove the defendant was the

one who set the fire beyond a reasonable doubt, it is not required to exclude every

conceivable alternative to a defendant’s guilt. See id. (citing Turro v. State, 867

S.W.2d 43, 47 (Tex. Crim. App. 1993) (explaining that “the evidence is not

rendered insufficient simply because appellant presented a different version of the

events”)).

      “When reviewing the sufficiency of the evidence, we consider all of the

evidence in the light most favorable to the verdict to determine whether, based on


                                          10
that evidence and the reasonable inferences therefrom, a jury was rationally

justified in finding guilt beyond a reasonable doubt.” Id. (citing Jackson v.

Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781 (1979)). “The jury is the sole judge

of credibility and weight to be attached to the testimony of witnesses.” Id. Juries

are permitted to draw multiple reasonable inferences from facts as long as each is

supported by the evidence presented at trial. Id. We determine whether the

necessary inferences are reasonable based upon the combined and cumulative force

of all the evidence when viewed in the light most favorable to the verdict. Id. at

526 (citing Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). We

presume the jury resolved conflicting inferences in favor of the verdict and defer to

that determination. Id.

      “Identity of a perpetrator can be proved by direct or circumstantial

evidence.” Greene v. State, 124 S.W.3d 789, 792 (Tex. App.—Houston [1st Dist.]

2003, pet. ref’d). Here there is both. Appellant does not dispute that the evidence

demonstrates that two separate fires were started, one in the garage of the

townhouse and one at the front of the townhouse. Greenwood provided direct and

unequivocal testimony that he came upon appellant’s spreading gasoline on the

front of the building while holding a lighter and threatening to set Greenwood on

fire too. This “eyewitness’s testimony, alone, can be legally sufficient to support a

guilty verdict.” Castilla v. State, 374 S.W.3d 537, 539 (Tex. App.—San Antonio


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2012, pet. ref’d); see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979)

(“The jury, in all cases, is the exclusive judge . . . of the weight to be given to the

testimony”); Reed v. State, 991 S.W.2d 354, 360 (Tex. App.—Corpus Christi 1999,

pet. ref’d) (“[T]his court may not second-guess the jury, who had the opportunity

to observe the witness’ demeanor, expressions, gestures, and tone during his

testimony.”).

      In addition, there is circumstantial evidence that appellant started the fire.

Video surveillance tapes showed the fire in the garage starting in the brief period

between appellant’s driving into the alley that the garage faced and appellant’s

driving back out of the alley towards the front of the townhouse. McLendon v.

State, 167 S.W.3d 503, 509 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)

(evidence that defendant’s car was parked, with lights on, in front of house at 3:00

a.m., and that witness positively identified defendant as person he saw running

away just before witness noticed that house was on fire was sufficient

circumstantial evidence of identity to support defendant’s conviction for arson).

Both Davis’s trial testimony that appellant was angry and jealous and the evidence

that appellant forged the insurance application to obtain insurance on Davis’s life

are evidence of appellant’s motive. Merritt, 368 S.W.3d at 526 (“Although motive

and opportunity are not elements of arson and are not sufficient to prove identity,

they are circumstances indicative of guilt.”).


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      We overrule appellant’s second point of error.

                                CONCLUSION

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish. TEX. R. APP. P. 47.2(b).




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