      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00225-CR



                                 Broderick Robinson, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
      NO. D-1-DC-10-300980, HONORABLE CLIFFORD BROWN, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found Broderick Robinson guilty of two counts of arson of Robert Heartl’s

habitation and found that he used a deadly weapon in committing the offenses. The trial court

sentenced him to thirty years in prison on each count to be served concurrently. Appellant now

challenges the legal sufficiency of the evidence to support particular elements of the offenses. We

will affirm the judgment.


                                         BACKGROUND

               Some time before the fires on May 10, 2010, appellant and Heartl met at a club and

had what Heartl described as a “very short-term, acquaintance-like friendship” that led to “a short

physical relationship a couple of times” that Heartl thought had run its course. According to Heartl,

however, appellant continued to call him. Heartl said that he did not think the relationship warranted

a “break up” and tried to distance himself by being aloof and monosyllabic when appellant called.
                On May 9, 2010, appellant and Heartl were at the same bar. Heartl was with a friend

but, noticing that appellant was very intoxicated, decided to take appellant to Heartl’s residence to

sober up. Heartl drove appellant’s car—a white, older model Mercedes. He did not notice a smell

of gasoline in the car. Heartl’s friend arrived separately. When appellant woke up before sunrise

on May 10, he argued with Heartl’s friend motivated by what Heartl perceived to be jealousy.

Appellant and Heartl’s friend both left, and Heartl went back to sleep.

                Heartl testified that, later that morning of May 10, he was awakened by the sound of a

gate closing and noticed what he thought was the sun coming up. He then realized that flames were

coming out from under an upside-down orange Igloo container on his front stoop about two feet from

his front door. He opened the door, kicked the container away, and extinguished the fire with a water

hose. Heartl testified that, as he was putting out the fire, he saw appellant driving away in the white

Mercedes. Heartl said he did not call the police because he thought the incident was over. He

testified that his door was sooty and that the screen door was damaged by the flames.

                A neighbor testified that, around 11 a.m. on May 10, she saw an unfamiliar white

sedan (a Mercedes or BMW) occupied by a man matching appellant’s general description who

seemed to be waiting for someone. She saw him get out of the vehicle carrying an orange Igloo-like

drink cooler. She testified that the cooler resembled the burned one in evidence except that it was

not burned when she saw it. She did not see appellant start a fire, nor did she recognize him in a

photo lineup.

                Heartl testified that, over the course of the afternoon, he received (but did not answer)

telephone calls from appellant’s cell phone. Heartl decided to lock the gate to his yard. Sometime



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after 6 p.m., he heard appellant rattling the gate and yelling that he would not be treated “like this”

and accusing Heartl of stealing money from the Mercedes. Heartl testified that, when he threatened

to call the police about appellant’s conduct, appellant responded “if you think that’s bad, just wait

until [you] see what happens next.” Appellant was driving a pickup truck at that point. Heartl called

the police, who referred the matter to the fire department’s arson investigator. The investigation

turned up evidence that the Igloo fire was set using a plastic bottle as a Molotov cocktail. After the

investigators left sometime before 10 p.m., Heartl went to sleep.

               He was awakened by a neighbor pounding on his door around 11 p.m. Heartl smelled

smoke in his room and left his home. The neighbor testified that he saw the flames on the outside

of Heartl’s house and ran over to fight the fire. The neighbor was able to douse the big flames, but

the fire continued to smolder in the wall and inside the storage closet adjacent to Heartl’s bedroom.

A police officer testified that he saw six-foot flames on the house. The fire department arrived and

extinguished the fire. A firefighter found a melted gas can at the scene, but did not find any gas-

powered equipment in the storage closet. Heartl testified that he did not own a gasoline can. He

testified that the doors to the storage closet were damaged, items inside the closet were destroyed,

and that the drywall by his bed was burned by the fire.

               Arson investigators, including Mike Crabill, returned and noted the “alligatoring” of

the exterior wall, which in these circumstances indicates a higher-than-normal temperature possibly

fueled by an accelerant. Crabill testified that the second fire was started using a two-gallon red

plastic gasoline container. Lab testing showed the presence of gasoline in the containers from the

scene connected with both fires. Crabill testified that whoever set the fires did so with the intent to



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damage or destroy the habitation because “that would be the only reason to set fire to the house.”

He testified that the first fire was set in front of the only door and windows that could be used to

escape. He said that the second fire had the added danger of occurring when many people are asleep

and susceptible to unwitting smoke inhalation. Crabill testified that both fires were deliberately set.

               Appellant’s housemate testified that gas-related items were missing from the garage

at a house appellant shared with him and two other men. The housemate testified that he noticed

after May 10 that he was missing a faded red plastic two-gallon gas can along with gasoline from

a storage can at his house. He also recalled seeing an orange Igloo-style cooler in the area of the

garage where appellant kept items, but said that cooler was no longer in the garage. He testified

that, on May 10, he saw appellant driving his pickup truck between 8 and 9 p.m. and later saw him

at their house at 11:15 p.m. He said that appellant did not smell of gasoline or have any apparent

singe marks.

               A second arson investigator, Joe Loughran, followed up on Crabill’s work. On

May 11, 2010, he went to appellant’s house to see if the white Mercedes was there. He saw

appellant pulling out of the driveway in the Mercedes, and noticed that it and a pickup truck were

filled with personal belongings as if someone was moving. Loughran spoke with appellant, who

Loughran said was “intent on explaining why the car had an odor of gasoline.” Loughran said

that appellant said that someone had drilled holes into his gas tank and had removed a grounding

wire meaning to cause the car to explode. Loughran testified that he did not see evidence that

corresponded with appellant’s story, but did not photograph the absence of that correlation. After

their conversation—some of which was recorded and played for the jury—Loughran arrested



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appellant. Loughran testified that, over the course of two interviews—one at appellant’s house

and the second in jail—appellant initially denied knowing Heartl, then said Heartl was going to buy

a vehicle from him, then said Heartl had stolen money from him. Appellant initially denied

having been near Heartl’s home, then admitted having “words” over some missing money.

Appellant admitted having the cell phone number from which Heartl received several calls on

May 10. Appellant’s phone records indicated that he made calls from near Heartl’s house near the

time of both fires.


                                           DISCUSSION

               Appellant challenges the legal sufficiency of the evidence to support findings

necessary to the guilty verdicts on two counts of arson. A person commits arson by starting a fire

with intent to destroy or damage a habitation knowing that it is within the limits of an incorporated

city or town. Tex. Penal Code § 28.02. By his first issue, appellant contends that the evidence is

legally insufficient to prove beyond a reasonable doubt that the perpetrator intended to damage or

destroy a habitation by starting a fire as alleged in Count I. By his second issue, appellant contends

that the evidence is legally insufficient to prove beyond a reasonable doubt that he was the arsonist.


Standard of review

               Due process requires that the State prove, beyond a reasonable doubt, every element

of the crime charged. See Jackson v. Virginia, 443 U.S. 307, 313 (1979). When reviewing the

sufficiency of the evidence to support a conviction, we consider all of the evidence in the light most

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



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elements of the offense beyond a reasonable doubt. Id. at 319. The sufficiency of the evidence is

measured by reference to the elements of the offense as defined by a hypothetically correct jury

charge for the case. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009).

               In determining the legal sufficiency of the evidence, we must consider all evidence

in the record, whether direct or circumstantial or properly or improperly admitted. Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We review all the evidence in the light most

favorable to the verdict and assume that the trier of fact resolved conflicts in the testimony, weighed

the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson,

443 U.S. at 318. A legal-sufficiency review requires us to defer to the jury’s determinations of the

witnesses’ credibility and the weight to be given their testimony. Brooks v. State, 323 S.W.3d 893,

899 (Tex. Crim. App. 2010). The jury, as exclusive judge of the facts, weighs and resolves conflicts

in the evidence and draws reasonable inferences therefrom. Clayton, 235 S.W.3d at 778; see

Tex. Code Crim. Proc. art. 38.04.


Intent regarding the fire

               The most direct evidence concerning intent is that the fires were set using accelerants

on the porch of a wooden frame house and adjacent to the doors of the storage room of the house.

In the apparently short time the first fire burned, the fire caused smoke damage to the wooden door

and damaged the screen sufficiently to require replacement. The second fire burned hot enough to

cause the surface to “alligator,” and it spread enough to burn a hole in the bedroom wall. There is

no evidence that either fire was set with an intention other than damaging the habitation. Viewed




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in the light most favorable to the verdict, this evidence is sufficient that a rational trier of fact could

find beyond a reasonable doubt that the perpetrator intended to damage the habitation.


Identity of arsonist in both counts

                Appellant contends that the evidence was insufficient to show his guilt. Indeed, there

is no testimony that anyone saw appellant start the fires. Appellant’s fingerprints were not lifted

from the items used to start the fires. No physical evidence was taken from appellant showing that

he had gasoline on him or other indicia that he had started fires.

                Circumstantial evidence linked appellant to the fires, however. Circumstantial

evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone

can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

Juries can draw multiple reasonable inferences as long as each inference is supported by the evidence

presented at trial, although they cannot permissibly reach conclusions based on mere speculation or

factually unsupported inferences or presumptions. Id. at 15. “[A]n inference is a conclusion reached

by considering other facts and deducing a logical consequence from them,” while “[s]peculation is

mere theorizing or guessing about the possible meaning of facts and evidence presented.” Id. at 16.

                Evidence that the fires were set using gasoline and small containers is unchallenged.

Appellant’s housemate testified that gasoline and items like those used to set the fires had been

present in the garage he and appellant shared and were no longer there after the fire. Heartl’s

neighbor saw the driver of a white car like appellant’s carrying a cooler like the one found charred

in Heartl’s yard toward Heartl’s house. Appellant’s car undisputedly smelled like gasoline the day




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after the fires, and investigators saw nothing consistent with appellant’s explanation for that odor.

This evidence connects appellant to the means used to set the fires.

                Appellant’s cell phone records placed him near the site of the fires near the time each

fire was set and when Heartl testified that appellant threatened him. Heartl and his neighbor both

testified that they saw a white Mercedes, like the one appellant was found driving the next day,

pulling away from Heartl’s house driven by a man who looked like appellant. This evidence

connects appellant to the scene of the fires at the time they were set.

                Heartl testified that appellant was jealous and angry early on the morning of May 10,

that appellant drove away from his house after the first fire, that appellant called throughout the

afternoon, and that appellant returned to Heartl’s house and threatened him that evening. The fire

investigator said that damaging the house was the only reason to set the fires. The fact that the fires

might have been bigger does not negate the intent to damage the house. This evidence connects

appellant to the intention to set the fires.

                Loughran testified that, the day after the fires, appellant’s vehicles were packed with

belongings as if “someone” was moving, and appellant could not tell Loughran where he was going

to be later. This evidence supports an inference of an intent to flee from which a fact finder may

infer guilt. See Clayton, 235 S.W.3d at 780.

                The jury weighed this testimony and the credibility of the witnesses—including the

lack of eyewitness testimony of appellant setting fires, Heartl’s criminal history,1 and the recently


        1
        Heartl had two convictions for possession of a controlled substance and a third for robbery.
He served three years in prison for those offenses.


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ended relationship—and found appellant guilty on both counts. Viewed in the light most favorable

to the verdict, this evidence collectively is legally sufficient to support the verdict.


                                           CONCLUSION

                Finding no reversible error presented, we affirm the judgment.




                                                Jeff Rose, Justice

Before Chief Justice Jones, Justices Puryear and Rose

Affirmed

Filed: June 21, 2013

Do Not Publish




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