          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


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                                       NO. 03-01-00232-CR
                                       NO. 03-01-00233-CR
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                                William Ethridge Hill, Jr., Appellant

                                                   v.

                                    The State of Texas, Appellee



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      FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        NOS. 0981472 & 0981493, HONORABLE BOB PERKINS, JUDGE PRESIDING
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                Appellant William Ethridge Hill, Jr., brings this consolidated appeal from his

convictions for arson and murder. See Tex. Pen. Code Ann. '' 19.02; 28.02 (West 1994 & Supp.

2002). In five issues, appellant contends that (1) the evidence is legally and factually insufficient to

support his convictions; (2) the trial court erred by admitting appellant=s oral statement; (3) the trial

court erred by admitting appellant=s written statement; (4) the trial court erred by admitting hearsay

evidence; and (5) the trial court abused its discretion by denying appellant=s motion for new trial. We

will affirm the judgment of the trial court.
                                         BACKGROUND

               In the early morning hours of October 2, 1997, the Austin Fire Department received

an alarm concerning a fire at the residence of William Allen. Allen=s badly burned body was

discovered in the house, and the medical examiner determined that he had suffered a severe blow to

his face which rendered him unconscious before his death. The medical examiner concluded that

Allen died of smoke inhalation and ruled the case a homicide.

               Lieutenant Michael Crabill, an arson investigator, determined that the point of origin

of the fire was in the living room, in the southeast corner, in and around a reclining chair. He also

determined that the fire was started by an open flame. Further, firefighters noted that two gas burners

on the stove in the kitchen had been turned to the Aon@ position. Neighbors and firefighters did not

realize the deceased was in the burning house because his vehicle was not parked in his driveway. In

a statement to police, appellant later admitted that he moved the deceased=s vehicle down the street

on the morning of the fire.

               Detective Mark Gilchrest of the Austin Police Department began an investigation and

discovered that the deceased had a roommate who had recently moved out of the house. Appellant

was identified as the roommate. Billy Gene Harris, a neighbor of the deceased, testified that at 3:00

a.m. on the morning of October 2, 1997, he saw a person matching appellant=s description get out of

a car parked down the street from the deceased=s house. Harris saw this individual walk toward the

deceased=s house and return to his vehicle about twenty minutes later. Neighbors discovered the fire

coming out of the deceased=s house at approximately 3:45 a.m.




                                                  2
               Detective Gilchrest met with some of appellant=s acquaintances and learned that he

left Austin on the day of the fire to visit his mother in the Washington, D.C. area. As a result of his

investigation, Gilchrest also determined that appellant had recently stolen and forged several of the

deceased=s checks and that the deceased had planned to file charges against appellant.

               On October 10, Gilchrest contacted appellant at his mother=s home, asked him if he

planned to return to Austin, and told him that they needed to talk further. Gilchrest also made

arrangements to meet with FBI agent Ed Roach in Montgomery County, Maryland, to set up an

interview with appellant.

               On October 28, appellant voluntarily met with Gilchrest and Roach at the

Montgomery County Police Department. During this meeting, appellant initially denied but

subsequently admitted stealing and forging the deceased=s checks, being present at the deceased=s

house on the morning of the fire, and engaging in a physical altercation with the deceased shortly

before the fire. Appellant was arrested and indicted for arson and murder.

               On February 7, 2001, the trial court rendered judgment on a jury verdict convicting

appellant of arson and murder. Appellant appeals the judgment.


                                           DISCUSSION

Appellant=s Written Statement




                                                  3
               In his third issue, appellant contends that the trial court erred by denying his motion

to suppress his written statement relating that he stole and forged the deceased=s checks and that on

the night of the fire he was at the deceased=s house and had a physical altercation with the deceased.

This issue bears directly on appellant=s complaints regarding the sufficiency of the evidence to support

his convictions and the trial court=s denial of his motion to suppress his oral statement. Accordingly,

we will address his third issue at the outset. See Tex. R. App. P. 47.1.

               Specifically, appellant contends that his written statement was inadmissible because he

would not have given it but for his earlier oral statement. Assuming without deciding that appellant=s

oral statement was inadmissible,1 we disagree.

               We review a trial court=s ruling on a motion to suppress for an abuse of discretion.

Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). In this review, we defer to the

district court=s factual determinations but review de novo the court=s application of the law to the

facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

               Appellant contends that his written statement should have been suppressed because it

was tainted by his earlier oral statement. Relying on the Acat-out-of-the-bag@ theory, which has been

severely limited in its application, see Griffen v. State, 765 S.W.2d 422, 431 (Tex. Crim. App. 1989),


       1
          The trial court held that while Gilchest=s warnings to appellant did not comply with
applicable constitutional standards, appellant=s oral statement that he was at the deceased=s house on
the morning of the fire was admissible because appellant was not in custody at the time he made the
statement.




                                                   4
appellant argues that because he thought his oral confession could be used against him, Ahis resolve to

remain silent [was] broken, rendering any subsequent statements involuntary under the due process

clause of the United States Constitution and Article 1 Section 9 of the Texas Constitution.@

                 Making a statement under circumstances that preclude its use does not perpetually

disable the confessor from making a usable one after those circumstances have been removed. Griffen,

765 S.W.2d at 428 (citing United States v. Bayer, 331 U.S. 532, 541 (1947)). We assess the effect of

giving a statutorily inadmissible statement on the voluntariness of a subsequent statement from the

totality of the circumstances, with the State bearing the burden of proving voluntariness by a

preponderance of the evidence. Id. at 429-30; In re J.T.H., 779 S.W.2d 954, 958 (Tex. App.CAustin

1989, no writ). Those circumstances include the Alength of detention, incommunicado or prolonged

detention, denying family access to a defendant, refusing a defendant=s request to telephone a lawyer

or family, and physical brutality.@ Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985).

None of these factors is present in this case.

                 The record reflects that appellant=s interrogation lasted around five hours; however,

appellant does not contend and the record does not reflect that this period of time somehow rendered

appellant=s written confession involuntary as a matter of law. Appellant was repeatedly offered and

given beverages, as well as food. While he never requested access to an attorney, he was informed,

both orally and in writing, of his right to do so. The record further reflects that Gilchrest informed

appellant that he would be given an opportunity to contact his mother in light of the length of the

interrogation:


        [Detective] Gilchrest: Let=s take a break just a second.

                                                   5
       [Agent] Roach:          You want another soda?

       [Appellant]:            I still have a little bit.

       [Detective] Gilchrest: Ethridge, we=re going to have to take a break. Let me take this
                              opportunity to let you go to the bathroom and get you
                              something else to drink.

       [Appellant]:            Where do you stand in this proceeding time-wise?

       [Detective] Gilchrest: Time-wise?

       [Appellant]:            Yeah.

       [Detective] Gilchrest: A lot of that just depends on where we go. If you want to call
                              your mom andCin a little while, because if we get to going too
                              longC

       [Appellant]:            It=s just about 7:30. We=re still okay at this point.


Further, in addition to several express offers to take bathroom breaks, appellant was given an open

ended offer to use the restroom at any time. After returning from a break early in the interrogation,

the following exchange took place:


       [Detective] Gilchrest: I feel much better now.

       [Appellant]:            I=m not far away from [using the restroom] myself. That=s the
                               way that (indistinguishable) is.

       [Agent] Roach:          Oh, just holler. Holler whenever you need to.


Under the totality of the circumstances, the record supports the trial court=s subsequent ruling:




                                                     6
              The written confession is admissible. The defendant was read his rights, the full
        rights, before giving the written statement after he was properly warned with the
        written statement. The, there is, there was some question I believe concerning,
        there=s a question concerning the totality of the circumstances test and the defendant
        believing that his prior statement would be used against him. I don=t know. There=s
        just some other notes that I=ve taken but it really doesn=t have anything to do with the
        holding. Has to do more with rationale. I do find that with all the warnings that he
        did receive, both the oral warnings and the written warnings, and the totality of the
        circumstances, the written statement was voluntary.

             I do not find the defendant=s statements were the product of coercion. The
        written warnings cured the omission of the oral warning, or the one omission if there
        was an oral warning.


In the absence of specific evidence that the oral statement played an actual role in appellant=s

decision to sign a written one, we cannot fault the trial court for its finding. See Griffen, 765 S.W.2d

at 431; see also Guardiola v. State, 20 S.W.3d 216, 223-24 (Tex. App.CHouston [14th Dist.] 2000,

pet. ref=d).

                Appellant does not dispute that the statutory requisites for the admission of the written

statement were satisfied. See Tex. Code Crim. Proc. Ann. art. 38.22 ' 2(a) (West 1979). Instead, he

contends that Gilchrest Aerroneously told Appellant that the written warnings basically consisted of

the same, imperfect, warnings he had recited to Appellant earlier.@ However, appellant does not cite,

and we are unaware of, authority for the proposition that such a statement renders statutorily

adequate warnings on a written statement ineffective. Because a written statement is not Aobtained@

(because it is not admissible) until it is signed, giving the required warnings before the accused signs

the statement meets the statutory requirements. See Dowthitt v. State, 931 S.W.2d 244, 259 (Tex.

Crim. App. 1996).




                                                           7
                Appellant further contends that because Gilchrest immediately reduced appellant=s

oral statements to writing, there was Aa direct connection between the prior inadmissible statement

and the subsequent written statement.@ However, the record reflects that appellant carefully read and

edited his written statement, contemplated his choice of words, and changed his written statement to

more accurately reflect his impression of the events in question. In light of this period of time for

reflection and the totality of the circumstances surrounding appellant=s written statement, including

the unchallenged written warnings on that statement, we hold that whatever Adirect connection@

existed between his oral and written statement does not render the written statement inadmissible.

                Finally, appellant refers to his testimony that Ahe would not have signed the written

statement had he not made the exact same oral statements moments earlier . . . [and] had he known

his earlier oral statement was not admissible because of the fatally defective statutory warning given to

him.@ Because this resolution of the Aapplication of law to fact questions@ turns on an evaluation of

appellant=s credibility and demeanor, we will defer to the trial court=s ruling. See Guzman, 955 S.W.2d

at 89. The conflicts between appellant=s testimony at the suppression hearing and those portions of

the record reflecting that he gave his written statement voluntarily were decided by the trial court in

favor of the State. The trial court is the sole judge of the credibility of the witnesses and the weight to

be given their testimony. Villarreal, 935 S.W.2d at 138. We hold that the trial court did not err in

admitting appellant=s written statement into evidence. Accordingly, appellant=s third issue is

overruled.

                In his harm analysis, appellant contends that his oral statements Ashowed that

Appellant was capable of lying, and could easily have influenced the jury in its assessment of the


                                                    8
credibility of Appellant=s denial in his written statement that he was involved in any fashion in setting

the fire which killed the deceased.@ Appellant contends that he was harmed by the admission of his

written statement because it Ashowed that Appellant was capable of committing a crime of dishonesty

and moral turpitude, and was the only evidence presented by the State which positively put him at

the deceased=s house and in physical contact with the deceased on the morning of the fire.@ As

appellant=s written statement was admissible, and the harm resulting from the written statement is the

same as that resulting from his oral statement, we need not decide whether his identical oral statement

was admissible. See Tex. R. App. P. 44.2(b).2 Accordingly, his second issue is overruled.


Hearsay Evidence

                In his fourth issue, appellant contends that the trial court erred by admitting the

hearsay testimony of Anthony Yates and Evelyn Whiteley. Because this issue also bears directly on

appellant=s sufficiency of the evidence complaints, we will address it prior to appellant=s first issue.


        2
          Appellant contends that the harm flowing from the admission of his oral and written
statements should be analyzed pursuant to Rule of Appellate Procedure 44.2(a) because AMiranda
warnings are of constitutional dimension, Dickerson v. United States, 530 U.S. 428, 147 L.Ed.2d 405
(2002), and the warnings required by Article 38.22 are likewise of constitutional dimension as they
insure the effectuation of the federal and Texas guarantees to be free from compelled self-
incrimination.@ Appellant does not dispute that the statutory requisites for the admission of his
written statement were satisfied; accordingly, we review any theoretical resulting harm under Rule
44.2(b).




                                                    9
                The admission or exclusion of evidence is a matter within the sound discretion of the

trial court. Jackson v. State, 575 S.W.2d 567, 570 (Tex. Crim. App. 1979). An appellate court may

reverse a trial court=s decision for an abuse of discretion only when it appears that the court applied an

erroneous legal standard, or when no reasonable view of the record could support the trial court=s

conclusion under the correct law and the facts viewed in the light most favorable to its legal

conclusion. Dubose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim. App. 1996). Even if the appellate

court would have reached a different result, it should not intercede as long as the trial court=s ruling

was within the Azone of reasonable disagreement.@ Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1991) (op. on reh=g).

                Appellant objected to Yates=s and Whiteley=s testimony concerning their

conversations with the deceased as hearsay. See Tex. R. Evid. 802. The State responded that the

testimony was admissible as a hearsay exception under Rule 803(3), which allows admission of a

statement of the declarant=s then existing state of mind, emotion, sensation, or physical condition,

such as intent, plan, motive, design, mental feeling, pain, or bodily health. Id. 803(3).

                The record reflects that the trial court overruled appellant=s hearsay objection to

Yates=s testimony about the deceased=s plans to evict appellant, change the locks on his house, and

install deadbolts. The court further overruled appellant=s hearsay objection to Whiteley=s testimony

that the deceased planned to pursue check charges against appellant and change the locks on his

house, as well as the deceased=s Astate of mind about wanting to make sure the defendant was out of

there before he filed [check forging charges] on him.@




                                                   10
                 Rule 803(3) clearly provides that testimony as to the deceased=s plan and then existing

state of mind is admissible. See id. Because the complained of testimony concerns the deceased=s

plans to evict appellant, change his locks, file charges against appellant, as well as his state of mind

concerning when he would file charges against appellant, we cannot say that the court applied an

erroneous legal standard or that no reasonable view of the record could support the trial court=s conclusion

under the correct law and the facts viewed in the light most favorable to its legal conclusion. Further, we

cannot say that the court=s decision does not lie within the zone of reasonable disagreement. Accordingly,

appellant=s fourth issue is overruled.


Sufficiency of the Evidence

                 In his first issue, appellant challenges the legal and factual sufficiency of the evidence

to support his convictions for arson and murder. Specifically, appellant contends that the evidence is

legally and factually insufficient to Aestablish beyond a reasonable doubt the corpus delecti required in

an arson prosecution, i.e., that the fire was set deliberately.@ Appellant=s argument assumes that his

written statement was invalid and that the trial court erred by admitting Yates=s and Whiteley=s

testimony. We have found that the statement was valid and that the trial court did not abuse its

discretion in admitting Yates=s and Whitely=s testimony. In any event, we review the legal sufficiency

of the evidence based upon the evidence admitted, even if on appeal we determine that the evidence

is inadmissible. Miles v. State, 918 S.W.2d 511, 512 (Tex. Crim. App. 1996).




                                                    11
                 Determining the legal and factual sufficiency of the evidence requires the implementation of

separate and distinct legal standards. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). A legal

sufficiency review calls upon the reviewing court to view the relevant evidence in the light most favorable to

the verdict and determine whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Staley v. State, 887

S.W.2d 885, 888 (Tex. Crim. App. 1994). Any inconsistencies in the evidence should be resolved in favor

of the verdict. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). This standard of review

is the same for both direct and circumstantial evidence. Green v. State, 840 S.W.2d 394, 401 (Tex. Crim.

App. 1992).

                 In determining the factual sufficiency of the elements of the offense, the reviewing court

views all the evidence in a neutral light, without the prism of Ain the light most favorable to the prosecution.@

Johnson, 23 S.W.3d at 6-7. The court reviews the evidence weighed by the jury that tends to prove the

existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact.

Id. In conducting its factual sufficiency review, an appellate court reviews the fact finder=s weighing of the

evidence and is authorized to disagree with the fact finder=s determination. Clewis v. State, 922 S.W.2d

126, 133 (Tex. Crim. App. 1996). The court, however, does not substitute its judgment for that of the jury,

and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be

clearly wrong and unjust. Id. at 129. Furthermore, the appellate court may not reverse a jury=s decision

simply because it disagrees with the result. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).




                                                       12
                Viewing the evidence in the light most favorable to the verdicts, the record reflects

that the jury could have concluded that appellant went to the deceased=s house at around 3:00 a.m.

on the morning of the fire, struck the deceased in the face with a blunt instrument causing injuries

severe enough to render him unconscious, turned on two of the gas burners on the stove in the

deceased=s kitchen, and held an open flame causing the origin of the fire. The jury could have

concluded further that appellant parked down the street from the deceased=s home and moved the

deceased=s vehicle so that neighbors and firefighters would think the deceased was not at home. In

light of the standards set out above, we cannot say that any rational trier of fact could not have found the

essential elements of arson and murder beyond a reasonable doubt.

                Further, after reviewing the evidence weighed by the jury that tends to prove that the fire

was set deliberately and comparing it with the evidence that tends to disprove that fact, we cannot say that

the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The

record does not reflect any evidence tending to disprove the fact that the fire was set deliberately;

appellant=s expert witness testified that the cause of the fire was probably not a smoldering cigarette, but

most likely an open flame. In light of appellant=s written statement and the testimony of Yates and

Whiteley, the jury was free to consider appellant=s prior relationship with the deceased; the fact that

when he went to the deceased=s home appellant parked down the street from the home rather than in

the driveway or in front of the house; the fact that appellant moved the deceased=s truck out of his

driveway so that it would not be seen and reveal the deceased=s presence at the house; the fact that

appellant left Austin for Maryland later the same morning; and the fact that appellant lied to police

about stealing and forging the deceased=s checks and being at the deceased=s home and having a

                                                    13
physical altercation with the deceased on the morning of the fire. Because the record reflects both

legally and factually sufficient evidence to support the jury=s verdicts, appellant=s first issue is overruled.


Motion for New Trial

                 In his fifth and final issue, appellant contends that the trial court abused its discretion

by denying his motion for new trial. Specifically, appellant contends that he was entitled to a new

trial because one of the jurors stated during deliberations that a statistical analysis demonstrated that

the likelihood that the fire at the deceased=s home started accidentally was Aso slight as to be almost

impossible.@

                 The grant or denial of a motion for new trial is committed to the sound discretion of

the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Abuse of discretion occurs

when the trial court=s decision is arbitrary or unreasonable. State v. Read, 965 S.W.2d 74, 77 (Tex.

App.CAustin 1998, no pet.). A trial court abuses its discretion Aonly when the . . . decision was so

clearly wrong as to lie outside that zone within which reasonable persons might disagree.@ Cantu v.

State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). The question is Awhether the trial court acted

without reference to any guiding rules or principles.@ Montgomery, 810 S.W.2d at 380. We presume

the correctness of the trial court=s ruling, and the burden rests on the appellant to establish the

contrary. State v. Gill, 967 S.W.2d 540, 541 (Tex. App.CAustin 1998, pet. ref=d). The court=s

decision will be sustained if it is correct on any theory of law applicable to the case. Read, 965 S.W.2d

at 77.

                 Appellant contends that he was entitled to a new trial because the juror=s statements

regarding statistical analysis constituted receipt of other evidence during deliberations. Texas Rule of

                                                      14
Evidence 606(b) limits those matters on which a juror may testify concerning deliberation to: A(1)

whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim

that the juror was not qualified to serve.@ Tex. R. Evid. 606(b). Accordingly, we interpret appellant=s

contention as complaining of outside influence.

               Although case law has not specifically defined what constitutes Aoutside influence,@ it

provides ample guidance as to what conduct is not considered an outside influence. Hines v. State, 3

S.W.3d 618, 623 (Tex. App.CTexarkana 1999, pet. ref=d). Outside influences must originate from

sources other than the jury itself. Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 370 (Tex.

2000). An outside influence is a force external to the jury and its deliberations, and it does not

include any part of the jury=s mental process. Wooten v. Southern Pac. Transp. Co., 928 S.W.2d 76,

78-79 (Tex. App.CHouston [14th Dist.] 1995, no writ). It Adoes not include information acquired

by a juror and communicated to the others between the time the trial court instructs the jury and the

time it renders a verdict, even when the information is not in evidence, and it is unknown to jurors

before trial.@ Crowson v. Kansas City S. Ry. Co., 11 S.W.3d 300, 305 (Tex. App.CEastland 1999, no

pet.). Information gathered by one juror and related to the other jurors does not constitute outside

influence, even if introduced specifically to prejudice the vote. Soliz v. Saenz, 779 S.W.2d 929, 932

(Tex. App.CCorpus Christi 1989, writ denied).

               In this case, the juror=s claim that a statistical analysis revealed that the fire was not

likely to have been accidental did not constitute an outside influence because it did not come from a

source outside the jury, it involved the mental processes of a juror, and it did not emanate from

outside the jury and its deliberations. In light of the standards set out above, we cannot say that the


                                                  15
trial court abused its discretion in denying appellant=s motion for new trial. Accordingly, his fifth issue

is overruled.



                                            CONCLUSION

                We overrule appellant=s issues. Accordingly, the judgment of the trial court is

affirmed.




                                                 _______________________________________

                                                 Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Yeakel and Puryear

Affirmed

Filed: August 30, 2002

Do Not Publish




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