                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-06-404-CR


SHEILA LANETTE CALHOUN                                                    APPELLANT
A/K/A SHEILA L. CALHOUN
                                             V.

THE STATE OF TEXAS                                                            STATE

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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

                                         ------------

     A jury convicted Appellant Sheila Lanette Calhoun of arson, found that

she had used or exhibited a deadly weapon during the commission of the

offense, and upon her plea of true to the enhancement paragraph, assessed her

punishment at twenty years’ confinement in the Institutional Division of the

Texas Department of Criminal Justice.                   The trial court sentenced her



     1
         … See T EX. R. A PP. P. 47.4.
accordingly. In two issues, Appellant contends that the evidence is legally and

factually insufficient to support her conviction.     Because we hold that the

evidence is legally and factually sufficient, we affirm the trial court’s judgment.

      While Appellant admits that the State’s video expert testified that the

security tape “showed a person wearing a red ski cap by the clothes which

were burned shortly before the initial flash of the fire was observed on the wall”

and that “this person . . . is identified as Appellant,” she contends that there

is no testimony that anyone saw her start the fire and no testimony that she

was the person who started the fire, that no evidence connects her with the

commission of any part of setting the fire, and that no direct evidence connects

her with setting the fire. Appellant challenges only the jury’s conclusion that

it was she who started the fire; she does not challenge the other elements of

arson.

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.2




      2
      … Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

                                        2
      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.3 The trier of fact is

the sole judge of the weight and credibility of the evidence. 4     Thus, when

performing a legal sufficiency review, we may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the fact-

finder.5     Instead, 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.” 6 We must presume

that the fact-finder resolved any conflicting inferences in favor of the

prosecution and defer to that resolution. 7 The standard of review is the same

for direct and circumstantial evidence cases. 8



      3
      … Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d
at 778.
      4
       … See T EX. C ODE C RIM. P ROC. A NN. art. 38.04 (Vernon 1979); Margraves
v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
      5
      … Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert.
denied, 529 U.S. 1131 (2000).
      6
          … Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).
      7
      … Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d
at 778.
      8
          … Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.

                                       3
      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.9

We then ask whether the evidence supporting the conviction, although legally

sufficient, is nevertheless so weak that the fact-finder’s determination is clearly

wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the fact-finder’s

determination is manifestly unjust. 10 To reverse under the second ground, we

must determine, with some objective basis in the record, that the great weight

and preponderance of all the evidence, though legally sufficient, contradicts the

verdict.11

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” 12 We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently


      9
      … Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006);
Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).
      10
       … Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d
1, 11 (Tex. Crim. App. 2000).
      11
           … Watson, 204 S.W.3d at 417.
      12
           … Id.

                                        4
than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence.13      We may not simply substitute our judgment for the fact-

finder’s.14 Unless the record clearly reveals that a different result is appropriate,

we must defer to the jury’s determination of the weight to be given

contradictory testimonial evidence because resolution of the conflict “often

turns on an evaluation of credibility and demeanor, and those jurors were in

attendance when the testimony was delivered.” 15 Thus, we must give due

deference to the fact-finder’s determinations, “particularly those determinations

concerning the weight and credibility of the evidence.” 16

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal.17

      Adrian Watterson testified that on February 20, 2006 at around

suppertime, he was working as an assistant manager at Dollar General in Fort




      13
           … Id.
      14
       … Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997).
      15
           … Johnson, 23 S.W.3d at 8.
      16
           … Id. at 9.
      17
           … Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

                                         5
Worth, Tarrant County, Texas. Only one other employee was working, and

about ten people were shopping. Watterson noticed that an African–American

woman, identified later in his testimony as Appellant, purchased a few items,

left the store, and came back between fifteen and thirty minutes later. She

then began filling her basket and kept watching him and his staff. Watterson

alerted his coworker to watch the floor, keep his eyes open, and report if he

actually saw something happen. Watterson was not able to watch the woman

constantly; she stayed in the store a long time, more than thirty minutes.

When he noticed her again, she was walking around the cash register area,

which is by the front entrance, her basket was pretty full, and she was

constantly looking around. After that, she was ready to check out. Then

Watterson heard somebody yell, “Fire!” Watterson saw the top of a flame and

a lot of smoke about 100 feet away toward the back of the store but did not

see anyone back there. Appellant was in the register line near him at this point.

Appellant tried to leave without paying for her basket of items but was later

apprehended.18




      18
        … See Calhoun v. State, No. 02-06-00405-CR, 2008 WL 623664 (Tex.
App.—Fort Worth Mar. 6, 2008, no pet. h.) (affirming trial court’s judgment in
theft case).

                                       6
      When the police searched Appellant after her arrest but before placing her

in a squad car, they found a nail. When the investigator for the State retrieved

Appellant’s clothing from the sheriff’s office pursuant to a warrant, he noticed

a yellow, flick-type lighter and a single dollar bill. After obtaining a second

warrant, he also retrieved that property. The lighter still worked. The clothing

included a red or maroon watch or beenie cap, a white Echo Unlimited jersey

pullover with short sleeves, a black leather jacket, black wind pants, a pullover

sweatshirt, and a pair of pajama bottoms.

      After the fire had been extinguished, Nancy Maturino, who worked for

Blackmon Mooring Steamatic, went to the store to clean up. Between items

of bulk dog food, she found a bottle of charcoal lighter fluid that had been

opened. The Tarrant County Medical Examiner’s office was unable to develop

prints from the bottle’s surface.

      E.C. Rodriguez, a member of the arson and bomb unit of the Fort Worth

Fire Department, testified that he was part of the follow-up investigation team

for the fire department. He went to the store to retrieve the bottle of lighter

fluid. He estimated that about 1/3 of the liquid had been removed from the 32-

ounce bottle before he got it. He also testified that a cigarette lighter can be

considered an open flame and that combustible material can be a deadly

weapon. He testified that it would take “[p]robably a matter of seconds” for

                                       7
ten ounces of lighter fluid on clothing and lit with an open flame to ignite and

that it would result in “not exactly an open explosion like gasoline. It would

start in a very slow process, building up, once again, the fumes and growing.”

It would probably take “a very short period of time” to get to 175 or 180

degrees. He opined that if lighter fluid were squirted over a rack of clothing

that was then lit at the bottom, the whole rack would be on fire in a matter of

seconds.

      Lieutenant Edsil Young of the fire department testified that he observed

on the night of the fire that two separate racks of clothing had been burned at

the area of origin and that he believed that they were ignited with an open

flame. He also testified that there were no nearby electrical connections that

could have caused the fire and no lighting strikes, to his knowledge. Finally, he

testified that on the security videotape, he saw an individual wearing a red cap

leaving the area of origin, and it appeared that she had a white object in one of

her hands.

      Grant Fredericks, a forensic video analyst testifying for the State,

explained that reflection off of objects can pinpoint when a fire starts. He

testified that when he analyzed the store’s security tape, he observed a dark-

skinned, shorter–than–average person walk through the door wearing a red cap,

a dark coat with white clothing underneath it, dark pants, light–colored socks,

                                       8
and sandals of some kind. He was able to identify every time that person

appeared on any of the camera views; nobody else in the store was dressed

that way. He testified that the person was in close proximity to the area of the

fire’s origin when the reflection started. He testified that there was absolutely

no fluctuation or change in the area of the fire’s origin before the person was

seen back there. He opined that the reflection was caused by the fire and by

nothing else. He said that the person was the only one in the area and that the

person was holding an object in the person’s hand. “The object is primarily

light in color[,] [p]robably white. It has a dark top to it.” He testified that

      [t]he images of the charcoal lighter fluid bottle [are] completely
      consistent with that object that’s being held. . . . The object shares
      the same class characteristics, but we can’t even say really it’s of
      the same class because there’s just not enough information. What
      I can say is that if we went down to that scene, stood exactly in
      the same position, under the same lights and held that bottle up, I
      would expect that it would have the same values and would look
      the same. Therefore, I can’t say it’s not that bottle. But I can’t go
      any further than that.

      He also testified that the person who entered the store wearing the red

ski cap is the same person seen back by the clothes shortly before the flash

was observed on the wall.        The person’s red hat was consistent with

Appellant’s red hat that had already been admitted into evidence.

      Sabino Vasquez, a fire investigator for the Fort Worth Fire Department,

testified that he spoke with Appellant the night of the fire and that she was

                                        9
wearing a maroon or reddish hat and long T-shirt and that the hat was

consistent with the color of the hat in evidence. He testified that Appellant told

him that she did not set the fire. He believed that she had set the fire and had

also been involved in setting a fire at a different Dollar General a few months

earlier. He was unaware that Appellant was in jail at the time of the earlier fire.

      The security video, admitted into evidence as State’s Exhibit No. 1,

shows the woman in the red cap, baggy pants, short dark jacket, and long

white shirt, identified in testimony as Appellant, entering the store and then

browsing in the shopping area near the cash register. She later appears in the

clothing area; no one else appears in view in that area. She knocks an item of

clothing so that it moves slightly.     She then moves around the racks in a

crouched position, goes out of view, and appears in view again with a white

object in her hand as the back wall starts glowing.         When flames appear,

neither Appellant nor anyone else is in the clothing area as depicted on the

video.

      The presence of Appellant and no one else in close proximity to the scene

of the fire’s origin at the time of the reflection or flash, the presence of a white

object in her hand that is consistent with a charcoal lighter fluid bottle, the

presence of a lighter in her possessions at jail, and the discovery after the fire

of the opened charcoal lighter fluid bottle at the store could all lead the jury to

                                        10
conclude beyond a reasonable doubt that it was Appellant who started the fire.

      Consequently, based on the standards of review given above, we hold

that the evidence is legally and factually sufficient to support Appellant’s

conviction, overrule her two points, and affirm the trial court’s judgment.




                                                      PER CURIAM

PANEL F:    DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: March 27, 2008




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