

Opinion issued March 1, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00398-CR
———————————
James R. Thompson, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 338th District Court
Harris County, Texas

Trial Court Case No. 1189363
 

 
O P I N I O N
A jury
found appellant James Russell Thompson guilty of murdering his former lover,
Giselle Teapo, and sentenced him to life
imprisonment.  See Tex. Penal
Code Ann. § 19.02(b) (West 2011)
(establishing offense of murder).  Thompson pleaded “true” to an enhancement
paragraph which alleged a prior federal conviction for possession of cocaine
with intent to distribute, and the judgment reflects an affirmative finding that
a deadly weapon was used.  Thompson
raises four issues on appeal: (1) the evidence against him on the murder
charge was wholly circumstantial and therefore legally insufficient;
(2) the trial court abused its discretion when it admitted expert evidence
regarding mobile phone records; (3) the trial court abused its discretion
when it admitted evidence of an extraneous offense during the punishment phase,
because the evidence did not show Thompson’s culpability beyond a reasonable
doubt; and (4) the evidence concerning the extraneous offense was legally
insufficient.  We affirm the judgment.
Background
James Russell Thompson and Giselle Teapo lived together in Thompson’s rental home with Teapo’s minor children. 
The State presented evidence at trial that Thompson was obsessed with Teapo.  A federal
parole officer who monitored Thompson in connection with a prior conviction for
dealing cocaine knew about the couple. 
He testified that Thompson was often frustrated and distraught about the
relationship.  Moreover, Teapo’s daughter told an investigating officer that her
mother was being stalked by Thompson.  Teapo’s work supervisor similarly testified that he had to
change Teapo’s extension number because Thompson
called her workplace so much one day that it interfered with her duties.
Multiple witnesses corroborated an
incident in which Thompson violently choked Teapo at
their home.  Officer D. Cannady responded to an early morning 911 call from the
house.  He arrived to find Teapo visibly upset, with blood smeared on her face and red
marks around her neck.  Teapo told Cannady that Thompson
choked her until blood came out of her nose and mouth.  He said he would kill her before she could be
with another man.  Teapo’s
sister testified that she received a contemporaneous phone call in which Teapo said that Thompson had tried to kill her.  When the sister arrived at Thompson’s house,
she saw the blood and bruising on Teapo.  Four other witnesses also testified to having
seen Teapo’s injuries after the choking
incident.  Teapo
and her children moved out of Thompson’s house immediately afterwards.
Thompson’s anger apparently related
to Teapo’s relationship with another man.  D. Warren testified that he carried on a
romantic relationship with Teapo while she was still
cohabitating with Thompson.  According to
Warren, Teapo had accepted a marriage proposal from
him.  He also purchased a pickup truck
for her use.  Thompson apparently knew
about Warren and once made a “disturbing” call to Warren’s cell phone.
Over the weekend prior to her
death, Teapo told multiple relatives that she had
received hundreds of harassing calls from Thompson on her mobile phone.  She informed her sister and daughter that she
intended to report Thompson’s harassment to his parole officer on Monday
morning.  According to Teapo’s daughter, Teapo told
Thompson about her intention of reporting him. 
Sunday night of that same weekend, Teapo’s
sister received a late phone call from Thompson saying that he had had his last
conversation with Teapo.
On Monday morning, October 27,
2008, a “large, fair skin black man” was seen sitting in the driver’s seat of a
dark blue Dodge Intrepid parked on the street where Teapo’s
aunt lived and where Teapo was then staying with her
children.  Approximately one hour later, Teapo was shot to death in her aunt’s driveway.  A witness testified that she had just arrived
home when she heard a woman’s scream and shots fired.  Upon darting outside, she saw a “tall” man
“with dark skin” walking away from a parked truck toward a “dark” car.  As she called 911, she peered out the window
to see the dark-colored car return.  She
saw the man get out and walk back toward the truck, and the man fired more
shots before driving off again.
Police, responding to the 911 call,
arrived to discover Teapo’s dead body hanging out of
the door of Warren’s pickup truck.  She
had been shot six times.  A neighbor
identified Thompson from a photo array as the man he had seen in the Dodge
Intrepid before the shooting.  Other
testimony established that Thompson had recently purchased a blue Dodge
Intrepid.
The State called R. Hicks of Boasso America to testify about Thompson’s unusual behavior
on the morning of the shooting.  Ten days
beforehand, Thompson had come to Boasso America in Channelview
to apply for a job.  A week after that,
Hicks called Thompson to tell him to come to work at 8:30 a.m. the next Monday
morning.  Thompson was advised to wear
work-appropriate clothing and steel-toe boots. 
At 8:29 a.m. Monday morning, the approximate time of the shooting,
Thompson called Hicks from his mobile phone to say that he had been at the
hospital with his grandchildren and that he would be running 30 to 45 minutes
late.  Hicks recalled that Thompson
actually arrived at about 9:50 a.m. wearing a “very nice” pullover, which Hicks
did not consider appropriate for the kind of work Thompson would do.  Thompson used his mobile phone incessantly as
Hicks filled out his paperwork.  At about
11:00 a.m., during an orientation, Thompson left Hicks’s office to take a call,
and upon his return he said that he had to leave for a family emergency.
The State offered Thompson’s mobile
phone records into evidence.  Officer M.
Rome of the Houston Police Department reviewed the records produced by Cricket
Communications, Thompson’s mobile phone service provider.  According to Rome, who had been trained in
interpreting such records, each entry indicated which antenna initially
accepted a “communication event” from Thompson’s phone.  Rome testified that a mobile phone call
usually routes through the geographically closest antenna, but that a call may
sometimes get “push[ed] off” to another available
tower nearby.  Rome testified that
Thompson’s phone accessed several Cricket antennas near the crime scene in
southwest Houston around the time of the shooting, and then, during the next 20
minutes, it accessed Cricket antennas along the route toward Thompson’s
apartment in northeast Houston.
The jury convicted Thompson of
murder and sentenced him to life imprisonment. 
Thompson appeals from this conviction.
Analysis
I.              
Sufficiency of the evidence
Thompson argues in his first issue
that the evidence at trial was legally insufficient to convict him of murder,
since the evidence was entirely circumstantial and depended upon “an
impermissible stacking of inferences.”
In assessing legal sufficiency, we
determine whether, based on all of the evidence viewed in the light most
favorable to the verdict, a rational jury could have found the essential
elements of the offense beyond a reasonable doubt.  Jackson
v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979); Swearingen v. State, 101 S.W.3d 89, 95
(Tex. Crim. App. 2003).  In applying the Jackson standard of review, an appellate
court must defer to the responsibility of the fact finder to fairly resolve
conflicts in testimony, to weigh evidence, and to draw reasonable inferences
from the facts.  See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007).  An appellate
court may not reevaluate the weight and credibility of the record evidence and
thereby substitute its own judgment for that of the fact finder.  Williams,
235 S.W.3d at 750.
Thompson argues that none of the
State’s evidence directly links him to the murder and that the State’s case
rested wholly on circumstantial evidence that was too weak to prove his guilt
beyond a reasonable doubt.  He attacks
various elements of the State’s case, arguing that each piece requires too
great of an inferential leap to arrive at an incriminating conclusion.  The verdict depended, in Thompson’s words, on
an “impermissible stacking of inferences.”
The Court of Criminal Appeals
addressed a similar argument about inference stacking in Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007):
[I]nference
stacking has not been used in this Court’s sufficiency of the evidence
jurisprudence in over 50 years.  In the
distant past, this Court reversed numerous convictions because they were based
upon stacking inferences, unsupported presumptions, or building presumptions
upon presumptions.  However, that
practice was discontinued and is not a part of our modern sufficiency review.  We have used the Jackson v. Virginia test for legal sufficiency review since it was
enunciated by the U.S. Supreme Court in 1979.
Hooper, 214 S.W.3d at 15 (citations omitted).  The Court of Criminal Appeals further
admonished that
[i]nference stacking is not an improper reasoning process; it
just adds unnecessary confusion to the legal sufficiency review without adding
any substance.  Rather than using the
language of inference stacking, courts of appeals should adhere to the Jackson standard and 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 16–17.  Though
most of the evidence in this case may be characterized as circumstantial, that
label does not affect our review for legal sufficiency.  “[C]ircumstantial
evidence is as probative as direct evidence in establishing the guilt of an
actor.  Circumstantial evidence alone can
be sufficient to establish guilt.”  Id. at 14–15.
          The jury heard evidence that Thompson
and Teapo had a tumultuous, violent relationship, and that on one occasion Thompson choked Teapo while saying that he would kill her before she could
be with another man.  Teapo
threatened to report Thompson’s harassing phone calls to his parole officer,
and she was killed on the morning that she told others she would contact the
parole officer.  One neighbor identified
Thompson as the person sitting in a blue Dodge Intrepid near the murder scene
an hour before the murder, and another neighbor saw a “dark skin” man shoot Teapo and then leave in a “dark” car.  Thompson was supposed to start work at the
time of the shooting, but instead he arrived over an hour later.  Records showed that Thompson’s mobile phone
was located near the murder scene until the time of the shooting, and it then
moved toward his residence on the other side of town.
A jury could rationally conclude beyond a reasonable doubt from this
evidence that Thompson was the person who shot Teapo
to death, and that he did so intentionally or
knowingly, which is an act that constitutes murder.  See Tex. Penal Code Ann. § 19.02(b) (“A
person commits [murder] if he . . .
intentionally or knowingly causes the death of an individual
. . . .”).  Thus, the Jackson test of legal sufficiency is
satisfied.  See Jackson, 443 U.S. at
318–19, 99 S. Ct. at 2788–89.
We overrule Thompson’s first issue.
II.           
Admissibility of expert testimony
In his second issue, Thompson
argues that the trial court erroneously admitted expert testimony regarding the
interpretation of the Cricket phone records. 
Thompson argues, first, that the testimony was unhelpful in assisting
the factfinder to determine a fact in issue—namely, Thompson’s whereabouts around the time
of Teapo’s killing—and, second, that the State did not establish the expertise of its
witness who interpreted the records for the jury.
The United States Supreme Court explained
the importance of the trial court’s gatekeeping function with respect to expert
opinion testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc.  509 U.S. 579, 592, 113 S. Ct.
2786, 2796 (1993).  The Court of
Criminal Appeals, even before Daubert, has required that, on request, a trial court must
conduct a gatekeeping hearing outside the presence of the jury to determine
whether expert evidence is sufficiently reliable and relevant to help the
jury.  Coble v. State, 330 S.W.3d. 253, 273 (Tex. Crim. App. 2010) (citing
Kelly v. State, 824 S.W.2d 568, 572–73 (Tex. Crim. App. 1992)).  The requirement for a gatekeeping hearing is
rooted in Rule of Evidence 702, which provides,
If
scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education
may testify thereto in the form of an opinion or otherwise.
Tex. R. Evid. 702; Kelly, 824 S.W.2d at
573.  When expert evidence is
challenged, a gatekeeping hearing is required before admitting the evidence,
regardless of whether the expertise at issue is novel or well-established.  Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000).
          One
threshold determination for the trial court at the gatekeeping hearing “is
whether such testimony is helpful to the trier of fact.”  Emerson
v. State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994); see Tex. R. Evid. 702.  In
other words, “[i]f the trial judge determines that
the proffered expert testimony is reliable (and thus probative and relevant),
then she must next determine whether, on balance, that testimony might
nevertheless be unhelpful to the
trier of fact for other reasons.”  Kelly, 824 S.W.2d at 572
(emphasis in original).  “The
evidence may be unhelpful, even though reliable, if its probative value is
substantially outweighed by, e.g., the risk of unfair prejudice, confusion of
the issues, misleading the jury, undue delay, or the presentation of cumulative
evidence.”  Emerson, 880 S.W.2d at 763 (citing Tex. R. Evid. 403).
          Besides
requiring that expert evidence be reliable, relevant, and helpful, Rule 702 additionally
requires that a witness offering expert opinion testimony be qualified to do so
by reason of his knowledge, skill, experience, training, or education.  See Tex. R. Evid.
702.  “Qualification is a two-step
inquiry.  A witness must first have a
sufficient background in a particular field, and a trial judge must then determine
whether that background goes to the matter on which the witness is to give an
opinion.”  Davis v. State, 329 S.W.3d 798, 813
(Tex. Crim. App. 2010).  “Because
the spectrum of education, skill, and training is so wide, a trial court has
great discretion in determining whether a witness possesses appropriate
qualifications as an expert on a specific topic in a particular case.”  Id.  “The degree of education, training, or
experience that a witness should have before he can qualify as an expert is
directly related to the complexity of the field about which he proposes to
testify.  If the expert evidence is close
to the jury’s common understanding, the witness’s qualifications are less
important than when the evidence is well outside the jury’s own experience.”  Rodgers v. State, 205 S.W.3d 525, 528 (Tex. Crim. App. 2006)
(footnote omitted).
In this case, the trial court
conducted a gatekeeping hearing outside the jury’s presence to determine
whether the Cricket phone records and accompanying expert testimony would be
admitted.  The Cricket records consist of
computer-generated spreadsheets.  Each
horizontal row has cells containing data corresponding to respective column headings
such as “Destination Number,” “Dialed Number,” “Caller ID,” “Date,” “Time,” and
“Duration.”  The State called Officer
Rome to interpret the records.  He testified
that the records showed the times of “communication events” initiated by
Thompson’s phone, and that the records identified each antenna that handled a
“communication event.”  The phone
accessing a particular antenna would be “in the general area of that tower” and
would try to “use the most nearby tower,” but “not every time will it use the
closest possible tower.”  Rome presented
to the court several maps that he had prepared showing the times and locations
of Cricket antennas that communicated with Thompson’s phone on the day of the
murder.
Rome also testified at the hearing
as to his qualifications to interpret the Cricket records.  He had been with the Houston Police
Department for 20 years, and he had been assigned to its criminal intelligence
division for approximately two years. 
Upon joining the division, he received 40 hours of training by another
officer on how to legally obtain mobile phone records and read them.  He attended two days of training courses with
a company that provides software for interpreting such phone records, and an
additional “week’s worth” of training on how to
upload records to the company’s system to obtain reports.  Rome said he interpreted mobile phone records
“on a daily basis” for the police department and that he could do it better
than any other officer in the department. 
He admitted that he was not an engineer and could not comment on the science
of cellular technology, but he maintained that he had “basic knowledge of how
the cellular handset is going to communicate with the cellular networks and the
cellular antennas . . . .”  He further testified that based on his
training, he could review Cricket’s records to determine which antenna was used
by a given phone during a “communication event.”  Two other district courts in Texas had
previously qualified Rome as an expert in the interpretation of mobile phone
records.
Thompson objected at a pre-trial
hearing that the State failed show that interpreting mobile phone records “is
generally accepted scientific theory in the scientific community.”  He also argued that Rome’s experience and
qualifications did not rise to the level of an expert.  The trial court was nevertheless satisfied that
Officer Rome possessed a “skill” that permitted him to give expert testimony,
even though he fell short of “purely an expert on some type of scientific
theory,” and it ruled that the State could call Rome as a witness.  See Tex. R. Evid.
702.
A.   Helpfulness
On appeal, Thompson argues that
given the wide effective range of the antennas and the possibility that his
mobile phone communications were pushed onto neighboring towers,
the testimony based on records of mobile phone usage supports only “conjecture
about the location where the call originated.” 
Thompson stresses that the Cricket records did not reflect his precise location at any given time,
and that Rome stated as much during the gatekeeping hearing.  Therefore, Thompson argues, the
Cricket phone records and Officer Rome’s testimony would not “help the jury
determine any fact at issue under indictment in this cause,” so the trial court
abused its discretion in admitting the evidence.  Thompson does not challenge the notions that Cricket can
determine which antenna received a signal from Thompson’s phone for particular
calls, or that such information correlates to fixed antenna locations.  Thus, Thompson challenges the helpfulness of
the phone-related evidence in understanding other evidence or determining facts
in issue, rather than the evidence’s reliability.  See Tex. R. Evid.
702.
During the gatekeeping hearing, the
trial court was required to determine whether the phone-related evidence would
“assist the trier of fact to understand the evidence or to determine a fact in
issue.”  See Tex. R. Evid. 702; Emerson,
880 S.W.2d at 763. 
The trial court implicitly found the evidence to be helpful when it
ruled that Rome could testify about the Cricket phone records.  See
Green v. State, 934 S.W.2d 92, 104 (Tex. Crim. App. 1996) (“When ruling on
the admissibility of evidence, the trial court implicitly makes findings of
fact and conclusions of law.”).  Thus,
the question is whether the trial court abused its discretion in admitting the
phone-related evidence because it was unhelpful to the jury.  See
Mata v. State, 46 S.W.3d 902, 908 (Tex. Crim. App.
2001).
The possibility that Thompson’s mobile-phone communications could have in
fact originated miles away from the antennas does not necessarily render the
phone-related testimony unhelpful. 
Unhelpful expert evidence is that which creates risk of unfair
prejudice, confuses the issues, misleads the jury, creates undue delay, or presents
cumulative evidence.  See Emerson,
880 S.W.2d at 763. 
Helpful expert evidence is that which will assist the trier of fact to
determine a fact in issue.  See Tex.
R. Evid. 702. 
Thompson’s location at the time that Teapo was
killed was a “fact in issue” for the jury. 
The evidence showed that Thompson’s mobile phone was active in the
general vicinity of the murder scene, a location close to neither his home nor
his employment, and that after the murder the phone communicated with antennas
while travelling along the way to the vicinity of Thompson’s residence.  Thus, the trial court did not abuse its
discretion to the extent that it determined that Officer Rome’s testimony and
the Cricket records would be helpful to the trier of fact for the purposes of
Rule 702.  See Joiner v. State, 825 S.W.2d 701, 708
(Tex. Crim. App. 1992).
B.   Qualifications
Next, Thompson argues that the
State did not adequately show Officer Rome’s qualifications to testify as an
expert.  Thompson points out that
according to Rome’s own testimony, he was not trained to interpret mobile phone
records with scientific articles or other manuals, he did not know the “error rate”
for interpreting such phone records, he had been practicing his expertise for
only four months before applying it to Thompson’s case, and he had testified
about such evidence on only two prior occasions.
The State had to show at the
gatekeeping hearing that Officer Rome had a “sufficient background” in
interpreting mobile phone records to have him qualified as an expert.  Davis,
329 S.W.3d at 813. 
The sufficiency of the witness’s background is measured according to the
complexity of the technique of interpreting mobile phone records.  See Rodgers,
205 S.W.3d at 528. 
The complexity of the technique employed in this case to interpret the
records is not great—Rome only
needed to know how the records were produced and what the data in each column
signified.  Rome testified that he had
received forty hours of training on how to obtain and read the records from
each mobile phone company operating in Houston. 
Cricket provided a list of the locations of its antennas, which
permitted Rome to represent on a map the antennas that corresponded to entries
in Thompson’s phone records.
Given the relative simplicity of
the technique of interpreting phone records employed in this case and Rome’s
training in that regard, we cannot conclude that the trial court abused its
discretion when it qualified him as an expert in interpreting mobile phone
records.  Other courts of appeals have
found that witnesses with similar training and experience were properly
qualified under Rule 702 to interpret phone records.  See
Saenz v. State, No. 13-10-00216-CR, 2011 WL 578757, at *3 (Tex.
App.—Corpus Christi Feb. 17, 2011, pet. ref’d) (mem. op., not designated for publication) (finding that
three-day course on cellular phone tracking and twelve prior occasions
performing such analyses were sufficient training and experience to qualify
officer to interpret phone records); Wilson
v. State, 195 S.W.3d 193, 200–02 (Tex. App.—San Antonio 2006, no pet.) (finding
that testimony of cellular company employee who had general understanding of
cellular phone technology and who frequently performed record analyses was
properly admitted).
Officer Rome’s testimony was
helpful in determining a fact in issue, and the trial court appropriately
qualified him as an expert in interpreting mobile phone records.  Therefore, the trial court did not abuse its
discretion in allowing Officer Rome to testify.
We overrule Thompson’s second issue.
III.        
Admissibility of arson-related evidence
In his third issue, Thompson
challenges the admission of evidence regarding an extraneous arson during the
punishment phase.  Thompson argues that
the trial court erred because the evidence did not show beyond a reasonable
doubt that he was culpable for that alleged arson.  See Tex. Penal Code Ann. § 28.02(a) (West 2011) (elements of arson).  Section 3(a) of Article 37.07 of the
Code of Criminal Procedure governs the admissibility of evidence during the
punishment stage of non-capital criminal trials.  Sierra
v. State, 266 S.W.3d 72, 79 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).  It provides
that:
evidence may be offered by the state . . . as to any matter the court deems
relevant to sentencing, including . . . evidence of an extraneous
crime or bad act that is shown beyond a reasonable doubt by evidence to have
been committed by the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been charged with or
finally convicted of the crime or act.
Tex. Code
Crim. Proc. Ann. art. 37.07,
§ 3(a)(1) (West 2011).  However, 
this express authority of the trial
court to admit evidence of any extraneous offense it deems relevant to sentencing
is not unconditional. . . . Unless the extraneous misconduct evidence
is such that the sentencing entity (either judge or jury) can rationally find
the defendant criminally responsible for the extraneous misconduct, the trial
court is not permitted to admit it at a punishment hearing.
Smith v.
State, 227 S.W.3d 753, 759–60 (Tex.
Crim. App. 2007).  Thus, the test of admissibility for such
evidence is whether the State has presented sufficient proof that “the
sentencing entity (either judge or jury) can rationally find the defendant
criminally responsible for the extraneous misconduct.”  Id. at 759–60.  We review a
trial court’s decision to admit evidence of an extraneous offense or bad act
during the punishment phase under an abuse-of-discretion standard.  Lamb v.
State, 186 S.W.3d 136, 141 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
The trial court held a hearing
outside the jury’s presence on the admissibility of the arson-related
evidence.  At that hearing, the State
called two arson investigators with the Houston Fire Department, L. Dale and P.
Aranda.  Dale
testified that he and Aranda were called to
Thompson’s rental house approximately one month before Teapo’s
death to investigate a possible arson. 
The burn patterns led Dale to conclude that a fire had started with
“paper, trash” or the like on the floor of the master bedroom closet.  Testimony elicited during the guilt phase of the trial
established that there was a blood stain on the carpet of the same closet
following the choking incident, which took place two days before the fire.  Dale
further stated that the front door of the house had been broken down by the
fire department because it was locked.  Aranda testified that Thompson told him that he had just
changed the locks on the door and that nobody else had a key.  Ruling out accidental causes, Dale and Aranda concluded that the fire had been intentionally set.
After Dale and Aranda
finished testifying at the pre-punishment hearing, the State informed the court
that Officer Rome was also available to testify that, based on the mobile phone
records, Thompson was in the vicinity of his house
around the time that the fire started. 
Although Rome later testified at the punishment phase in front of the
jury, he did not testify during the hearing on the admissibility of the
arson-related evidence.
At the close of the hearing,
Thompson argued that the court as the “gatekeeper” under Article 37.07
should not admit the arson-related evidence, since it would not allow a jury to
conclude beyond a reasonable doubt that Thompson was responsible for setting
the fire.  The State responded that the
evidence was admissible, and that the jury would be left to decide whether the
arson was proven beyond a reasonable doubt. 
The court found that the State had proven beyond a reasonable doubt, to
the court’s satisfaction, “a circumstantial case” that Thompson committed the
arson, and it ruled that the arson-related evidence could be presented to the
jury.
The hearing testimony of Dale and Aranda showed that (1) in their professional opinion,
the fire was started intentionally because accidental causes were ruled out, (2) the front door to Thompson’s house was locked
when the fire department arrived, and (3) Thompson told Aranda that he had just changed the locks and had the only
key.  A jury presented with this evidence
could rationally conclude beyond a reasonable doubt that Thompson committed the
arson, because he had exclusive access to a house in which an intentional fire
had been set.  See Tex. Penal
Code Ann. § 28.02(a).  Therefore, the trial court did not abuse its
discretion in admitting the arson-related evidence at the punishment phase.
We overrule Thompson’s third issue.
IV.         
Sufficiency of arson-related evidence
In his fourth and final issue,
Thompson argues that the evidence on the extraneous arson was insufficient
under the Jackson v. Virginia standard
of sufficiency of the evidence to prove Thompson’s culpability.  However, “we do not review the sufficiency of
the evidence of an extraneous offense to support the jury’s assessment of
punishment.”  Thompson v. State, 4 S.W.3d 884, 886 (Tex. App.—Houston [1st Dist.]
1999, pet. ref’d); accord Malpica v. State, 108 S.W.3d 374,
378–79 (Tex. App.—Tyler 2003, pet. ref’d); Ulloa v. State, No.
14-10-00161-CR, 2011 WL 2462193, at *3 (Tex. App.—Houston [14th Dist.] June 21, 2011, no pet.) (mem. op., not designated for publication).
Before the jury or judge assessing
the defendant’s punishment may rely on evidence of an extraneous crime or bad
act, the jury or judge must conclude beyond a reasonable doubt that the
defendant committed or could be held criminally responsible for the extraneous
crime or bad act.  See Tex. Code
Crim. Proc. Ann. art. 37.07,
§ 3(a)(1). 
However, unlike a determination of guilt on the underlying offense,
which must be supported by legally sufficient evidence under the Jackson standard, the burden applicable
to evidence of extraneous offenses or bad acts during the sentencing phase of a
non-capital trial “does not require the offering party to necessarily prove
that the act was a criminal act or that the defendant committed a crime.”  Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005).  Instead, to satisfy the procedural standard
for evidence of extraneous offenses or bad acts, the proponent need only
demonstrate “a defendant’s involvement in the act itself, instead of the
elements of a crime necessary for a finding of guilt.”  Id.
“[T]he question at punishment is
not whether the defendant has committed a crime, but instead what sentence
should be assessed.”  Id. 
Once the admissibility of an extraneous offense or bad act has been
established, the jury or judge may rely upon the evidence in assessing
punishment as long as the jury or judge concludes beyond a reasonable doubt
that the defendant was involved in the act, and the sentence may not be
challenged on the basis that the evidence did not rise to the level to
establish an independent statutory crime. 
See id.; Thompson, 4 S.W.3d at 886.  Accordingly, we overrule Thompson’s fourth
issue.
Conclusion
We affirm
the judgment of the trial court.
 
 
 
                                                                      Michael
Massengale
                                                                      Justice

 
Panel consists of Justices Keyes, Higley, and Massengale.
Publish.  Tex. R. App. P. 47.2(b).

