

Opinion issued November 10, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00371-CR
———————————
Lemuel Anthony McNeil, Appellant
V.
State of
Texas, Appellee

 

 
On Appeal from the 179th District Court
Harris County, Texas

Trial Court Case No. 1143742
 

 
O P I N I O N
          In
December 2001, Harris County firefighters and emergency medical personnel
responded to an emergency call from Lemuel Anthony McNeil reporting a fire in
his home.  Inside, they found McNeil still
conscious but overcome by smoke.  They
also found the body of his thirteen-month-old daughter.
A grand jury indicted McNeil on
charges of capital murder and arson.  The
State first tried McNeil on the capital murder charge, which resulted in an
acquittal.  This appeal arises from the
trial on the arson charge.  The jury
found McNeil guilty of arson and of using a deadly weapon, namely fire, during
its commission, and assessed a punishment of 23 years’ confinement.  The trial court entered judgment on the
verdict.
McNeil appeals, contending that: (1)
the trial court erred in allowing the State to try the deadly weapon charge;
(2) the evidence does not support the judgment; (3) the trial court erred in
admitting evidence relating to the child and the fact of her death; (4) the
trial court erred in excluding evidence that McNeil was acquitted of capital
murder; and (5) the trial court erred in denying McNeil’s special plea in bar based
on collateral estoppel.  We find no error
and affirm.
Background
McNeil and Stephanie Flournoy met
each other at church.  They both  participated in the church’s prayer ministry
team, and McNeil hired Flournoy to clean his house.  They had a brief sexual relationship, and
Flournoy became pregnant.  
McNeil became extremely angry when
he learned of the pregnancy.  He insulted
Flournoy and asked her to abort the pregnancy, but she refused.  When the other churchmembers learned of Flournoy’s
pregnancy, McNeil, who had been dating another member in the church, lost face and
was removed from the prayer ministry team.
Before Flournoy gave birth, McNeil petitioned
in family court for sole custody of the child and to terminate Flournoy’s parental
rights.  At the hearing, which was held a
year after the child was born, the family court denied McNeil’s requests.  The court ordered him to pay child support
and granted him visitation with the child for three hours every Saturday afternoon.  McNeil reacted angrily to the ruling and
slammed the doors on the way out of the courtroom.  
McNeil’s first visit was scheduled
for Saturday, December 15, 2001.  The Friday
before, McNeil complained to a co-worker that the custody and visitation
arrangements were not the way they were “supposed to be.”  McNeil also told the co-worker that he was
going to “fix this situation,” and that the next time he saw the co-worker,
“all this stuff would be over with.”
On Saturday, McNeil’s friend, Yvonne
Reid, met McNeil at his house to help him with the visit.  McNeil told her that he was not feeling well
that morning.  That afternoon, they picked
up the baby from Flournoy and brought her to McNeil’s home.  Reid’s daughter, whom Reid had enlisted to
help care for the baby, met them there.  The
baby was fussy, so the women soothed her. 
They made a pallet on the floor in front of the fireplace and put the
baby to sleep there.  McNeil said he felt
chilled and asked Reid to light a fire in the fireplace.  Reid turned on the gas and lit the fire with
a match.  When she and her daughter left
the house at approximately 3:40 p.m., the baby was still asleep on the floor
and McNeil was resting on the couch.
At 5:39 p.m., McNeil called for
emergency assistance, but the smoke from the fire made it impossible for him to
speak.  The City of Houston Fire
Department (HFD) responded to the call.  The
emergency medical technicians (EMTs) arrived first.  They saw smoke coming out of the front door,
and opened it to discover McNeil face-down in the front hall with the phone
near his hand.  They found the baby in
the living room, still on the pallet by the fireplace.  The baby was unresponsive and had no vital
signs, and the EMTs were unable to resuscitate her.                     Acting
Captain J. Trevino arrived at the house and quickly doused the fire.  He smelled gasoline near the couch in the
living room and reported the finding.  HFD
arson investigator T.E. Wood conducted a four-hour inspection of the home later
that evening.  He noticed the fire’s burn
pattern indicated that the fire started near a living room baseboard.  Wood found it peculiar that a Christmas tree,
which stood near the fireplace, was burned on one side but not the other.  In examining the fireplace, Wood found the
flue in the closed position, which
meant that excess heat and smoke from a fireplace fire would stay in the
house instead of being drawn up the chimney. 

After executing a search warrant,
Wood visited the home a second time on January 29.  Wood opined that “someone placed gasoline
across the floor of the north end of the den to the east wall to the west wall
or from the west wall to the east wall and ignited the fumes of that gasoline
with some type of open flame, possibly a match.”  Wood acknowledged that the fireplace fire was
a possible ignition source, but stated that he did not believe that the fire in
the fireplace or the Christmas tree caused the fire.  
Martin, the inspector for McNeil’s
landlord’s insurer, first visited the home on December 29, 2001, accompanied by
a dog that had been trained to detect flammable residue.  Based on the dog’s failure to alert, Martin tentatively
determined that the fire was accidental. 
In late February 2002, Martin returned to to take debris samples from
the burned area.  That time, he brought 2
trained dogs, which signaled the presence of flammable residues.  After discussing the case with the HFD arson
unit, Martin amended his report to conclude that the fire was incendiary, not
accidental, in origin.  
On January 8, 2002, McNeil’s rental
insurance carrier sent its inspector, Gary Morgan, to determine the fire’s
origin and cause.  Morgan collected floor
debris from the affected area and submitted it for chemical analysis.  The analysis tested negative for any identifiable
flammable liquids.  The HFD arson unit
refused to provide Morgan with its information about the cause of the
fire.  Morgan classified the cause of the
fire as undetermined, and he testified that his findings were not consistent
with an accelerated fire.
The defense presented two rebuttal
experts.  The first, Michael Waltersheidt,
was a retired Texas A&M University professor who holds a Ph.D. in plant
pathology and owns a Christmas tree farm.  Waltersheidt did not personally inspect the
partially burnt tree found in McNeil’s home, but, based on general knowledge, he
opined that tree was cut in either the Midwest or Pacific Northwest in early
November 2001, then transported to Texas for sale.  He presumed that the top of the tree had
dried out.
Johnny Thornton, an independent
fire investigator, testified as the second defense expert.  Thornton theorized that the closed fireplace
flue caused heat and smoke from the fireplace fire to accumulate in the house,
and that the tree and the window valance caught fire once the heat reached the
ignition point for those two objects, and the burning needles or valance hit
the floor causing the burning along the baseboard.  Based on these observations, Thornton concluded
that the fire was accidental.


 
Discussion
I.       Collateral
estoppel
Three of McNeil’s appellate complaints—arising out of the trial court’s refusal to
quash the deadly weapon charge, certain evidentiary rulings, and its denial of his
special plea—depend on whether the trial court erroneously refused to give collateral
estoppel effect in this arson proceeding to his prior acquittal on the capital
murder charge.  We first considered the
collateral estoppel effect of the acquittal in our decision denying
McNeil’s pretrial request for habeas corpus relief.  See Ex parte
McNeil, 223 S.W.3d 26 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).  There, we observed that collateral estoppel
is a corollary of the Fifth Amendment prohibition against double jeopardy made
applicable to the states through the Fourteenth Amendment.  Id. at
31–32 (citing Ashe v. Swenson, 397
U.S. 436, 445, 90 S. Ct. 1189, 1195 (1970)).  Collateral estoppel “means . . . that
when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties in any
future lawsuit.”  Ashe, 397 U.S. at 443, 90 S. Ct. at 1194.  To determine whether collateral estoppel bars
a subsequent prosecution, a reviewing court must ascertain “(1) exactly
what facts were ‘necessarily decided’ in the first proceeding; and (2) whether
those ‘necessarily decided’ facts constitute essential elements of the offense
in the second trial.”  Ex parte Taylor, 101 S.W.3d 434, 441
(Tex. Crim. App. 2002).
To determine whether a
fact was necessarily decided in a prior proceeding, reviewing courts must
determine whether specific facts were decided by the jury and if so, how broad
the scope of the jury’s findings were in terms of time, space, and content.  Ex parte
Watkins, 73 S.W.3d 264, 268 (Tex. Crim. App. 2002).  “The mere possibility that a fact may have been determined in a former
trial is insufficient to bar relitigation of that same fact in a second trial.”
 Id.
(emphasis in original).  A reviewing
court must examine the entire trial record, including the pleadings, the
evidence, the charge, and the arguments of counsel “to determine ‘with realism
and rationality’ precisely which facts the jury necessarily decided and whether the scope of its findings regarding
specific historical facts bars relitigation of those same facts in a second
criminal trial.”  Id. at 268–69 (emphasis in original).  
A.      Deadly
weapon charge
          McNeil
contends that the trial court erred in denying his motion to quash the deadly
weapon paragraph in the arson indictment because, in the capital murder trial,
he was necessarily acquitted of the charge that he had used a deadly weapon.  The State initially counters that McNeil
waived this challenge by failing to secure a ruling on his motion to quash the
indictment on this ground.  McNeil,
however, raised the issue before trial in an amended application for writ of
habeas corpus, which the trial court denied. 
He also complained about submission of this charge to the jury before
the parties presented their closing arguments. 
McNeil timely raised the issue and secured a ruling, and thus preserved it
for review.
In contending that
collateral estoppel precluded the State from relitigating the deadly weapon
issue, McNeil points to our conclusion in his first habeas corpus proceeding that,
in order to acquit him of capital murder, the jury “necessarily determined that
the complainant [the child] did not die from appellant smothering her with a
deadly weapon, namely his hands or an unknown item, and that [the child]
therefore died by other means.”  McNeil, 223 S.W.3d at 31–32.  We determined that, “by finding appellant not
guilty of the offense of capital murder, the jury only necessarily found that
appellant did not smother [the child].”  Id. at 31.  We acknowledged that the issue of “whether
appellant intentionally started the fire was a disputed issue in the capital
murder trial,” but determined that the jury was not required to resolve that
fact and could have grounded its verdict only on the issue of whether McNeil
smothered the child regardless of whether he started the fire.  Id.  As a result, we concluded, the jury’s “verdict
did not address whether appellant started the fire.”  Id.
at 32.  
In the trial of this arson
case, the charge asked the jury to find whether McNeil “used or exhibited a
deadly weapon, namely, a fire, during the commission of the [arson of the
habitation] or during the immediate flight therefrom.”  The definition of “deadly weapon” provided to
the jury tracks the Penal Code definition of “deadly weapon”: “anything
manifestly designed, made, or adapted for the purpose of inflicting death or
serious bodily injury; or 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(a)(17)(A), (B) (West 2006).  The Court of Criminal Appeals has explained
that “[t]he placement of the word ‘capable’ in [section 1.07(a)(17)(B)] enables
the statute to cover conduct that threatens deadly force, even if the actor has
no intention of actually using deadly force.” 
McCain v. State, 22 S.W.3d
497, 503 (Tex. Crim. App. 2000).  
In arguing at closing that the fire
McNeil started was capable of causing death or serious bodily injury, the State
highlighted the evidence that McNeil himself was injured in the fire and that
the fire put rescue workers in harm’s way. 
Neither of these facts was ‘necessarily decided’ in the capital murder proceeding,
so the State was not collaterally estopped from prosecuting the deadly weapon
charge on that ground. 
McNeil also complains that the
deadly weapon paragraph of the indictment is defective because it is redundant
of the underlying crime of arson.  We
recently upheld a conviction and deadly weapon finding in which the appellant’s
conduct in starting the fire, which supported his conviction for arson, also
served to support the deadly weapon finding. 
See Mims v. State, 335 S.W.3d
247 (Tex. App.—Houston [1st Dist.] 2010, pet. filed).  In Mims,
we specifically rejected the same contention that McNeil makes here, reasoning
that the legislature did not “exempt first-degree felony offenses involving
bodily injury or death from the statutory scheme governing deadly weapon
findings.”  See id. at 251.  
B.      Evidence concerning the child and her
death
McNeil also contends that
the trial court erred in admitting evidence of the child and the fact of her death
because his prior acquittal of the capital murder charge collaterally estopped the
State from presenting that evidence.[1]  McNeil relies on our determination in the
habeas proceeding that:
In order to acquit appellant, the jury thus necessarily
determined that complainant did not die from appellant smothering her with a
deadly weapon, namely his hands or an unknown item, and that complainant
therefore died by other means.  That fact
cannot be relitigated and is barred by collateral estoppel.
McNeil,
223 S.W.3d at 31.  McNeil claims that
this determination required the trial court to exclude all evidence of the
child’s death.  Collateral estoppel,
however, is not as broad as he suggests.  See id.
at 31 n.4.  Evidence of an otherwise
admissible extraneous offense is not rendered inadmissible merely because the
defendant has been acquitted of that offense in a previous criminal trial.  Dowling
v. United States, 493 U.S. 342, 348–49, 110 S. Ct. 668, 672–73 (1990).  Whether collateral estoppel bars evidence of
that offense depends on whether the prosecutor will rely on evidence of other,
unprosecuted conduct to prove an essential element of the later-tried offense.  See State
v. Houth, 845 S.W.2d 853, 864 (Tex. Crim. App. 1992).  When the prosecutor relies solely on evidence
of other conduct to prove an essential element of the subsequent offense, the
prosecution is not jeopardy-barred.  Id. 

In the capital murder trial, McNeil did not contest the fact
that the rescue workers found the child dead in his home.  In acquitting McNeil of capital murder, the
jury necessarily found that the child “died by other means,” and
not by McNeil smothering her.  McNeil, 223 S.W.3d at 31.  That determination, however, is not the same
as an affirmative finding on the cause of the child’s death.  Id.
 The capital murder acquittal thus does
not collaterally estop the State from introducing evidence that the child was
found dead in the house.  Because the
jury might reasonably conclude that McNeil intentionally started a fire capable
of causing death or serious bodily injury even if it did not believe beyond a
reasonable doubt that McNeil murdered the child by smothering her, collateral estoppel
does not bar admission of this evidence. 
See Dowling, 493 U.S. at 348–49,
110 S. Ct. at 672–73; see also United
States v. Brackett, 113 F.3d 1396, 1400 (5th Cir. 1997) (holding that general
verdict of acquittal, exculpating defendant of liability for substantive
offense, does not estop the government from introducing same evidence in
subsequent prosecution mean as proof of non-criminal overt acts in furtherance
of conspiracy to commit same offense).  
1.       Relevance  
During McNeil’s arson
trial, the trial court admitted portions of the child’s autopsy report, as well
as other evidence that the child died from an unknown cause and had died before
the fire started.  McNeil challenges the
trial court’s admission of evidence regarding the child’s death because it was
not relevant, and even if relevant, that evidence was outweighed by its
prejudicial nature.  
          We
review challenges to the admission of evidence under an abuse of discretion
standard.  Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1990).  If the trial court’s ruling is in a “zone of
reasonable disagreement,” then it has not abused its discretion.  Moreno
v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993).  For evidence to be relevant it does not have
to, by itself, prove or disprove a particular fact.  Ex parte
Smith, 309 S.W.3d 53, (Tex. Crim. App. 2010) (quoting Stewart v. State,
129 S.W.3d 93, 96 (Tex. Crim. App. 2004)).  Motive is a relevant factor in proving that a
suspect willfully started a fire.  Massey v. State, 226 S.W.2d 856, 859 (Tex.
Crim. App. 1950).  
Evidence regarding the
child’s death was relevant to show McNeil had a motive for starting the fire.  The State contended that McNeil panicked when
he learned of the child’s death.  Given
his contentious relationship with the child’s mother and his anger over the
child’s existence, a reasonable jury could infer that McNeil started the fire
to divert any blame for the child’s death away from himself.
          2.       Danger of unfair prejudice
          If the trial court determines that the
proffered evidence has probative value, it must balance that value against the
countervailing considerations listed in the rules of evidence.  Tex. R.
Evid. 403; Jackson v. State,
314 S.W.3d 118, 125 (Tex. App.—Houston [1st Dist.] 2010, no pet.).  Even if it is relevant evidence may still be
excluded if its probative value is substantially outweighed by danger of unfair
prejudice, confusion of the issues, misleading the jury, considerations of
undue delay, or needless presentation of cumulative evidence.  Tex. R.
Evid. 403.  A trial court’s
decision on admissibility will be overturned only when a clear disparity exists
between the evidence’s degree of prejudice and its probative value.  Conner
v. State, 67 S.W.3d 192, 202
(Tex. Crim. App. 2001).  There is a
presumption though, that relevant evidence will be more probative than
prejudicial.  Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996).  We analyze whether such a disparity exists by
applying the following six factors:
(1) the inherent probative force of the proffered item of
evidence along with (2) the proponent’s need for that evidence against (3) any
tendency of the evidence to suggest decision on an improper basis, (4) any
tendency of the evidence to confuse or distract the jury from the main issues,
(5) any tendency of the evidence to be given undue weight by a jury that has
not been equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an inordinate amount
of time or merely repeat evidence already admitted.
Gigliobianco v. State,
210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). 

The first and second factors favor admission of the evidence
that the child was dead before the fire started because it strongly supports
the State’s position that McNeil had a motive to commit arson.  Evidence that McNeil waged an unsuccessful
battle for sole custody of the child shortly before the fire supports an
inference that McNeil knew that the child’s death would look suspicious, and
suggests that he had a motive to make the scene look like he was not
responsible for her death.  See Gosch v. State, 829 S.W.2d 775, 783
(Tex. Crim. App. 1991).  The jury
considered physical evidence about the cause of the fire as well as experts from
both sides, who had conflicting opinions as to the fire’s origin.  Evidence of motive could assist the jury in determining
the credibility and weight of these expert opinions.  
As to the remaining factors, evidence of a child’s death
obviously creates a risk that the jury’s heightened emotions may lead it to
reach an erroneous conclusion.  Cognizant
of the potential emotional impact, though, the trial court excluded evidence
that might lead the jury to conclude that McNeil was responsible for the
child’s death.  It required the State to
redact from the autopsy report any suggestion that McNeil was at fault and
prohibited the State from intimating that the autopsy report showed that the
child died under suspicious circumstances. 
In addition, the trial court prohibited the State from stating during
closing argument that the child was healthy when she left her mother’s custody
and, approximately three hours later, she was dead, concluding that the
statement could imply that McNeil did something to the child and it was not a reasonable
argument supporting any element of the arson.  Instead, the State reminded the jury that the
cause of death was a mystery and that no evidence pointed to McNeil being at
fault.  
The record shows that most of the evidence presented at
trial related to the origin and circumstances of the fire, and the relationship
between McNeil and Flournoy.  The trial court
made various rulings to limit evidence on the issue of the child’s death and admonished
both sides to move past the issue when it was raised in questioning.  The three witnesses who provided the bulk of the
testimony concerning the child’s death did not spend much time on the issue.  The risk of unfair prejudice did not
substantially outweigh the probative value of that evidence to show a motive
for arson, as limited by the trial court.  We hold that the trial court did not abuse its
discretion in admitting it.
C.      Special plea 
McNeil contends that
the trial court erred in refusing to submit his special plea at bar to the jury.  We review the trial court’s decision on a
plea of former jeopardy for an abuse of discretion.  See
Lewis v. State, 865 S.W.2d 478, 481 (Tex. App.—Tyler 1993, no pet.).   
Section 27.05 of the
Code of Criminal Procedure provides: 
A defendant’s only special plea
is that he has already been prosecuted for the same or a different offense
arising out of the same criminal episode that was or should have been
consolidated into one trial . . . 
Tex. Code
Crim. Proc. Ann. § 27.05 (West 2009).  The special plea is required to be verified by
an affidavit from the defendant stating the former cause and its outcome.  Id. § 27.06.
 The trial court usually must submit the
special plea to the jury unless, assuming the facts in the plea to be true, it
does not state a legal former jeopardy claim, the court may overrule it and
refuse to submit it to the jury.  See Tex.
Code Crim. Proc. Ann. art. 27.07; Apolinar
v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991).
McNeil contends that
the trial court should have granted his plea because the two alleged offenses
occurred in the same criminal episode.  The
Penal Code provision addressing joinder does not make consolidation of offenses
for trial mandatory; it provides that a “defendant may be prosecuted” in one action for “all offenses arising out of
the same criminal episode.”  Tex. Penal Code Ann. § 3.02 (West
2011) (emphasis added).  McNeil does not
identify any authority to support his contention that the trial court was
required to consolidate both charges into one trial.[2]  
In Stevens v. State, the Court of Criminal
Appeals explained that section 27.05’s special plea and consolidation language does
not trump section 3.02’s permissive language.  667 S.W.2d 534, 536–38 (Tex. Crim. App. 1984).
 Section 3.02 provides that offenses
arising out of a single criminal episode may be consolidated for trial, but does
not make consolidation mandatory.  See Nelson v. State, 864 S.W.2d 496, 498
(Tex. Crim. App. 1993) (holding defendant does not have right to consolidate
offenses committed in same criminal episode); Stevens, 667 S.W.2d at 536.  As
Stevens explains, the legislature
amended article 27.05 to add the “should have been consolidated” language anticipating
that the Penal Code provisions under consideration would make joinder mandatory
in some circumstances, but the enacted legislation contained no such provision.
 Id.
at 537.  
Since Stevens was decided, the legislature
expanded the definition of “criminal episode” in section 3.01 beyond property
crimes to include all of the offenses identified in the Penal Code.  See Tex. Penal Code Ann. § 3.01 (West
2011) (defining “criminal episode” as “the commission of two or more offenses,
regardless of whether the harm is directed toward or inflicted upon more than
one person or item of property,” either pursuant to the same transaction or to
a common scheme or plan, or repeated commission of same or similar offenses); see generally Acts 1973, 63rd Leg., p.
883, ch. 399, § 1, eff. Jan. 1, 1974, amended
by Acts 1987, 70th Leg., ch. 387, § 1, eff. Sept. 1, 1987.  Section 3.02’s permissive language remains unchanged.
 See
Tex. Penal Code Ann. § 3.02 (West 2001); Stevens, 667 S.W.2d at 536.  We
conclude that the special plea provision did not require the trial court to the
arson charge and the capital murder charge into one trial.  
Similar to his collateral estoppel
argument, McNeil also contends that the inclusion of the “with FIRE” deadly
weapon charge shows that the State is attributing guilt for the child’s death
onto McNeil, requiring a special plea instruction.  But, as we have observed, the indictment
charges that the deadly weapon was “used and exhibited”; it does not allege any
connection to the child’s death.  The
elements of the offense of arson are not same as those of capital murder, and a
finding of one in these circumstances is not dispositive of the other.  Compare Tex. Penal Code Ann. § 19.03 with id. § 28.02 (West 2009).  A reasonable jury could find that McNeil used
and exhibited fire without finding that McNeil caused the child’s death.  We hold that the trial court did not abuse
its discretion in refusing to submit the special plea to the jury.
II.      Evidentiary
sufficiency 
A.      Standard of review
McNeil contends that the record
does not contain factually sufficient evidence to support the jury’s finding
that he is guilty of arson.  We review
all evidentiary sufficiency challenges under the same standard.  See Brooks
v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (“[T]he Jackson v. Virginia legal sufficiency
standard is the only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt.”)
(referring to Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781 (1979)).  Under
this standard, evidence is insufficient to support a conviction if, considering
all the record evidence in the light most favorable to the verdict, no rational
fact finder could have found that each essential element of the charged offense
was proven beyond a reasonable doubt.  See Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; In re Winship, 397 U.S. 358,
361, 90 S. Ct. 1068, 1071 (1970); Laster
v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  
Viewed in the light most favorable
to the verdict, the evidence is insufficient when either: (1) the record
contains no evidence, or merely a “modicum” of evidence, probative of an
element of the offense; or (2) the evidence conclusively establishes a
reasonable doubt.  See Jackson, 443 U.S. at 314, 319 n.11, 320; Laster, 275 S.W.3d at 518; Williams,
235 S.W.3d at 750.  This standard applies
equally to both direct and circumstantial evidence.  King v.
State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). 
We do not weigh any evidence or
evaluate the credibility of any witnesses, as this was the function of the fact
finder.  Williams, 235 S.W.3d at 750. 
Instead, we determine whether both the explicit and implicit findings of
the fact finder are rational by viewing all the evidence admitted at trial in
the light most favorable to the verdict and resolving any inconsistencies in
the evidence in favor of the verdict.  Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).
          A.      Arson
To support McNeil’s conviction for
arson, the evidence must allow a rational fact finder to find each of the essential
elements of arson was proved beyond a reasonable doubt.  Under the pertinent provision of the Texas
Penal Code in effect when McNeil was charged, “[a] person commits an offense [of
arson] if the person starts a fire, regardless of whether the fire continues
after ignition, or causes an explosion with intent to destroy or damage . . .
any building, habitation, or vehicle . . . knowing that it is within the limits
of an incorporated city or town.”  Tex. Penal Code Ann. § 28.02(a)(2)(A)
(West 2003).  The indictment alleges that
McNeil:
did then and there unlawfully, start a fire
by igniting a flammable liquid with the intent to damage or destroy a
habitation located at 10211 CHERRY LIMB, knowing that the habitation was within
the incorporated limits of a city, namely, Houston, Texas.
It is further presented that at the time the
Defendant committed the felony offense of ARSON on or about December 15, 2001,
as hereinabove alleged, he used and exhibited a deadly weapon, namely, FIRE
during the commission of and during the immediate flight therefrom.
McNeil relies on O’Keefe
v. State, 687 S.W.2d 345 (Tex. Crim. App. 1985); Machado v. State, 753 S.W.2d 252 (Tex. App.—Houston [1st Dist.]
1988), pet. ref’d, 767 S.W.2d 809
(Tex. Crim. App. 1989); Baugh v. State,
776 S.W.2d 583 (Tex. Crim. App. 1989), and Troncosa
v. State, 670 S.W.2d 671 (Tex. App.—San Antonio 1984, no pet.), in
contending that various circumstances—such as the presence or absence of witnesses, conflicting expert
testimony concerning the use of accelerant, a defendant’s recent application for
insurance or additional coverage—have factored into evidentiary sufficiency reviews in arson cases.  Those cases found the evidence insufficient
under a defunct legal standard, making them inapposite.  See
Cole v. State, No. 01-06-00742-CR, 2007 WL 4099371, at *2 (Tex.
App.—Houston [1st Dist.] Nov. 15, 2007, no pet.) (mem. op., not designated for
publication) (citing Geesa v. State,
820 S.W.2d 154, 159–61 (Tex. Crim. App. 1991)). 
We examine the circumstances identified in earlier cases that may be present
or absent in this case, but they are not exclusive, and none is a linchpin in
any earlier case that automatically renders the evidence sufficient or
insufficient to support an arson conviction. 
We review the individual circumstances presented to the jury in this
case to decide whether a rational fact finder could have found that each
essential element of the charged offense was proven beyond a reasonable doubt.  See
Jackson, 443 U.S. at 319. 
The evidence is undisputed that the
December 15, 2001 fire damaged McNeil’s residence, which was within the Houston
city limits.  McNeil specifically challenges
the sufficiency of the evidence supporting the jury’s finding that he started
the fire.  Multiple pieces of debris
recovered from the home tested positive for the presence of an accelerant, and
Trevino smelled gasoline in the living room immediately after the fire.  McNeil placed the Christmas tree near the
hearth and asked his friend to light a fire in the fireplace that afternoon
before she left.  Yet, some evidence
shows that the fire began neither the tree nor the fireplace, but instead that
the burn patterns resulted from a flammable liquid along the living room
baseboard.  McNeil had a contentious
relationship with the baby’s mother and had expressed serious dismay over the
family court’s rulings.  These problems provided
him a motive to conceal the circumstances surrounding the baby’s death.  Based on our review of the record, we hold
that a rational fact finder could have found beyond a reasonable doubt that
McNeil started the fire by igniting a flammable liquid with the intent to
damage or destroy the home.
III.    Evidence of acquittal
during punishment phase 
McNeil challenges the
trial court’s exclusion of his capital murder acquittal during the punishment
phase.  Section 37.07 of the Texas Code
of Criminal Procedure gives the trial court broad discretion to allow evidence
during sentencing.  See Tex. Code Crim. Proc. Ann.
art. 37.07, § 3(a)(1) (West Supp. 2010).  “[R]elevance during the punishment phase of a
non-capital trial is determined by what is helpful to the jury.”  Erazo v.
State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004); see Rogers v. State, 991
S.W.2d 263, 265 (Tex. Crim. App. 1999); Contreras
v. State, 59 S.W.3d 362, 365 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
We will not disturb a trial court’s evidentiary ruling absent an abuse of
discretion.  See Green, 934 S.W.2d at 101–02.
The trial court reasonably could have
determined that evidence of the capital murder acquittal would confuse the jury.  Neither the State nor the defense may
relitigate a finding of guilt or acquittal at the punishment phase.  See McGee
v. State, 197 S.W.3d 802, 805 (Tex. App.—Houston 2006), aff’d, 233 S.W.3d 315 (Tex. Crim. App.
2007).  The trial court also reasonably
could have concluded that the acquittal was not relevant to the sentencing policies
of deterrence, rehabilitation or the prevention of recidivism.  See Tex. Penal Code. Ann. § 1.02(1) (West
2011); Rogers, 991 S.W.2d at 265–66.  As a result, we hold that the trial court did
not abuse its discretion in excluding evidence that McNeil was acquitted of the
capital murder charge.
Conclusion
We hold that: (1) the trial court
did not err in allowing the State to try McNeil on the deadly weapon charge;
(2) the trial court did not abuse its discretion in admitting limited evidence
relating to the child and her death as a motive for arson; or in excluding
evidence that McNeil was acquitted of capital murder; (3) the evidence is
sufficient to support the judgment; and (4) the trial court did not err in
denying McNeil’s special plea in bar.  We
therefore affirm the judgment of the trial court.
 
                                                                   Jane
Bland
                                                                   Justice

 
Panel
consists of Chief Justice Radack and Justices Bland and Huddle.
Publish.   Tex. R. App. P. 47.2(b).




[1]
          McNeil complains of error in
denying his motion in limine with respect to evidence concerning the child, but
a motion in limine does not preserve error. 
See Norman v. State, 523
S.W.2d 669, 671 (Tex. Crim. App. 1975). 
During trial, however, McNeil secured a running objection to any mention
of “the child” and a running motion for new trial, and obtained rulings denying
the objection and the motion.  McNeil
also reiterated his objection when the issue arose at other times throughout
the trial.  McNeil therefore preserved
his objections to the evidence concerning the child, and we construe his
complaint as one of error in its admission. 
See Tibbs v. State, 125 S.W.3d
84, 88 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (concluding that
appellant’s acts of filing motion in limine, objecting to evidence when
tendered, and obtaining running objections preserve error).  


[2]
          “Neither the Federal nor State
Constitutions nor Texas statutes prohibit multiple prosecution for two
statutory offenses committed in the same transaction.  The constitutional provisions speak of double
jeopardy in terms of the ‘same offense’ rather than ‘same transaction.’”  Ex parte
McWilliams, 634 S.W.2d 815, 823 (Tex. Crim. App. 1980).
 


