                              NUMBER 13-08-165-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


KENNETH KEENE,                                                              Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 148th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

                Before Justices Yañez, Benavides, and Vela
                  Memorandum Opinion by Justice Vela

      Appellant, Kenneth Keene, was indicted for the capital murder of Lucia Gonzalez.

See TEX . PENAL CODE ANN . § 19.03(a)(2) (Vernon Supp. 2009). A jury found him guilty

and, because the State did not seek the death penalty, the trial court assessed punishment

at life imprisonment. Id. § 12.31(a)(2). By one issue, appellant challenges the factual
sufficiency of the evidence to support his conviction. We affirm.

                                   I. FACTUAL BACKGROUND

       Richard McBride and appellant lived at a make-shift campsite in an undeveloped

area of Corpus Christi. They stayed in separate tents and were the only people living there

until about a week prior to this incident when Lucia Gonzalez began staying in appellant’s

tent. On the morning of March 2, 2007, McBride, appellant, and Gonzalez were drinking

beer. That afternoon, McBride went into his tent to take a nap. When he woke up about

an hour later, Gonzalez and appellant were arguing about some beer. McBride left the

camp for fifteen minutes to get them some beer. As he walked back to the camp, he saw

appellant sitting in a chair, drinking coffee. McBride testified that this chair was about

fifteen to thirty feet from appellant’s tent. As McBride walked into the campsite, he saw

that a fire was “[e]ngulfing” appellant’s tent and the surrounding area. When he asked

appellant where Gonzalez was, appellant said, “‘Dumb Bitch started my tent on fire’” and

left the camp. McBride found Gonzalez outside of appellant’s tent “on all fours engulfed

in flames.” He tried to smother the fire on her with a sleeping bag, but the fire was too hot.

Shortly thereafter, fire-department personnel arrived to put out the blaze. McBride did not

see who started the fire, but testified he did not think Gonzalez “would have the means to

start the fire.” He said that she did not smoke, did not have a lighter, and did not talk about

killing herself. He testified that at the time of this incident, “[i]t was a wet season” and that

“[y]ou could have thrown an open flame on the floor [of appellant’s tent] and . . . it wouldn’t

have started. It was very wet, and he [appellant] has a leak.” He testified that appellant’s

shirt did not have a burn mark on it before the fire.

       Police found Gonzalez’s charred body at the campsite and arrested appellant about

200 yards from the camp, walking along some railroad tracks. David Leal, the arresting
                                         2
officer, testified that appellant “smelled of burnt smoke all about his clothing.” He stated

appellant was staggering, had slurred speech, and his breath smelled of alcohol. Officer

Leal also testified appellant had “a fresh burn mark” on the upper right sleeve of his shirt

and “a fresh redness” to the rear of the upper right arm that appeared to be from a burn.

       Appellant waived his Miranda1 rights and agreed to an interview with Officer Hugo

Stimmler. The interview was videotaped and admitted into evidence during trial. During

the interview, appellant said that he remembered sitting in the chair, drinking coffee while

Gonzalez was inside his tent. He recalled nothing about the fire, and he did not know how

it started. He said that he had a candle in his tent and that Gonzalez was smoking a

cigarette in the tent. He denied that he was intoxicated at that time.

       Tommy Pleasant, an investigator for the State Fire Marshall’s Office, brought a dog

named “Tess” to the crime scene. Tess was trained to find approximately fourteen odors

of ignitable liquids and alerted where appellant’s tent had been located. Specifically, Tess

alerted next to the corner of the bed. Afterwards, he took Tess to the police station, where

Tess alerted on a pack of cigarettes that appellant had in his shirt pocket when arrested.

Tess also alerted on appellant’s left shoe and left sock.

       Jim Swindall, the manager for the State Fire Marshall’s arson laboratory, tested the

evidence in this case for ignitable liquids and found kerosene on the pack of cigarettes that

appellant had in his shirt pocket. Swindall testified that for kerosene to get on the pack of

cigarettes, it “would have to touch something that had kerosene on it.” When asked for his

opinion about what was the ignitable fluid used to start the fire, he said “the only ignitable

liquid I found was kerosene.” He did not find ignitable liquids on the other evidence



       1
           See Miranda v. Arizona, 384 U.S. 436 (1966).
                                                    3
submitted to him in this case. He testified that because most shoes are held together with

glue, it is “very common” for a dog to alert on a shoe that later tested negative for ignitable

liquids.

       On cross-examination, defense counsel told Swindall that the burned tent contained

a mattress, which was kept off of the ground by tires. When defense counsel asked him,

“If you were going to start something on fire like that, how much kerosene would you need

to get it going?”, he said, “[Y]ou don’t need but a small amount. . . .” He stated that even

though bug sprays contain hydrocarbons, he had never seen a bug spray that contained

kerosene.

       Evidence of the fire’s incendiary origin came from Captain Mark Wagner, a fire-and-

arson investigator for the Corpus Christi Fire Department. He testified that the fire was “an

arson or an incendiary fire, meaning that it was intentionally set.” He stated that the fire

started in the area where the tent was located and that the fire burned in a concentric

pattern which “was almost a circle” around a mattress, which was in the tent. He said this

was a quick, hot-burning fire. When the prosecutor asked him what the fire’s heat source

was, he said, ”What we determined was that an ignitable liquid was used in order to

consume and to reach that temperature that quickly. . . . [W]hether it was a match or a

lighter or whatever that ignited that, we didn’t find any remnants of that, . . . .” When the

prosecutor asked him, “So you made the determination that an ignitable liquid was used?”,

he said, “Yes.” He said that the ignitable liquid was completely consumed by the fire and

that a cigarette would not have started a fire like the one in this case. He ruled out that the

fire was started by a candle. On cross-examination, he testified that he did not find any

flammable liquids at the scene.


                                              4
         About a month after the fire, appellant gave Officer Larry Serna a voluntary

interview, during which appellant stated that he left the tent to make coffee and that while

“making the coffee, he passed out only to awake to seeing the tent burning.” He tried to

go in and get Gonzalez out, and he also tried to administer “mouth-to-mouth,” but was not

successful.

         Darryl Smith, an assistant principal at a local school, met appellant, whom he knew

as “Gator,” through Metro Ministries in Corpus Christi. In 2005, he hired appellant to do

some yard work for him. Smith noticed that appellant drank alcohol while working. Smith

paid appellant for the work, and afterwards, saw him again regarding a dispute about how

much money Smith owed him for the work. While appellant was in the county jail for

Gonzalez’s murder, Smith received two letters2 from appellant. The trial court admitted

them into evidence during trial, and Smith read portions of them out loud to the jury. With

respect to the first letter, Smith read the following: “‘Darryl, hey, what gives? I’m still sitting

here in jail for the murder of my girl that you did. . . .’” The letter was signed, “‘It’s your

doing, Gator.’” With respect to the second letter, he read the following: “‘Hey, Darryl, . .

. You killed Lucia [Gonzalez] and then burned my tent and went in and told the cops that

I did it. The Gator.’” Smith testified that he did not know Lucia Gonzalez.

         On cross-examination, Smith testified that he considered the behavior shown by the

letters to be “[d]esperate.” He testified that appellant was a “classic, chronic alcoholic.”

         Dr. Ray Fernandez, the medical examiner who performed Gonzalez’s autopsy,

testified that the cause of her death was “smoke inhalation and thermal injuries, the burns,

. . . .” He said her blood alcohol level was .377.


         2
          The trial court adm itted the letters into evidence as State’s exhibits 54 and 55. The first letter is dated
April 29, 2007, and the other is dated June 7, 2007.
                                                          5
       The defense rested without calling any witnesses.

                                         II. DISCUSSION

       In his sole issue, appellant challenges the factual sufficiency of the evidence to

support his conviction. Specifically, he contends the evidence does not show that he

started the fire.

A. Standard of Review

       In a factual-sufficiency review, the only question to be answered is: “Considering

all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a

reasonable doubt?”      Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008).

Evidence can be deemed factually insufficient in two ways: (1) “the evidence supporting

the conviction is ‘too weak’ to support the factfinder’s verdict;” or (2) “considering conflicting

evidence, the factfinder’s verdict is ‘against the great weight and preponderance of the

evidence.’” Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (quoting Watson

v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). When a court of appeals

conducts a factual-sufficiency review, it must defer to the jury’s findings. Id. The court of

criminal appeals has “set out three ‘basic ground rules’ implementing this standard.” Id.

(quoting Watson, 204 S.W.2d at 414). First, the appellate court must consider all of the

evidence in a neutral light, as opposed to in a light most favorable to the verdict. Id.

Second, the appellate court “may only find the evidence factually insufficient when

necessary to ‘prevent manifest injustice.’” Id. (quoting Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997)). Third, the appellate court must explain why the evidence is too

weak to support the verdict or why the conflicting evidence greatly weighs against the

verdict. Id. Although the verdict is afforded less deference during a factual-sufficiency

review, an appellate court is not free to “override the verdict simply because it disagrees
                                              6
with it.” Id.

B. Applicable Law

        Our review of a factual-sufficiency challenge should be examined under the

principles of review for a hypothetically correct jury charge. Grotti, 273 S.W.3d at 281.

“‘Such a charge [is] one that accurately sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof, or unnecessarily restrict the

State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.’” Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009)

(quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

        The indictment in this case alleged, in relevant part, that appellant “did then and

there intentionally or knowingly cause the death of an individual, LUCIA GONZALEZ, by

SETTING A STRUCTURE ON FIRE while in the course of committing or attempting to

commit ARSON, . . . .” (emphasis in original). A person commits capital murder “if the

person commits murder as defined under Section 19.02(b)(1) and: . . . (2) the person

intentionally commits the murder in the course of committing or attempting to commit . . .

arson, . . . .” TEX . PENAL CODE ANN . § 19.03(a)(2). Section 19.02(b)(1) provides that a

person commits murder if he or she “intentionally or knowingly causes the death of an

individual.” Id. § 19.02(b)(1). A person commits 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: (1) any vegetation, fence, or structure on open-space land; . . . .”

Id. § 28.02(a)(1) (Vernon Supp. 2009). “‘Open-space land’ means real property that is

undeveloped for the purpose of human habitation.” Id. § 28.01(5) (Vernon 2003).

        Capital murder by arson occurs only when the appropriate mens rea is satisfied:

an intent to murder and under the facts of this case, an intent to destroy or damage any
                                            7
structure on open-space land. See Hogue v. State, 711 S.W.2d 9, 13 (Tex. Crim. App.

1986). “A person acts intentionally, or with intent, with respect to the nature of his conduct

or to a result of his conduct when it is his conscious objective or desire to engage in the

conduct or cause the result.” TEX . PENAL CODE ANN . § 6.03(a) (Vernon 2003). Intent may

“be inferred from circumstantial evidence such as acts, words, and the conduct of the

appellant.” Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).

C. Whether the Evidence is Factually Sufficient to Prove That Appellant Committed Arson

       The offense of arson requires that the fire involved be of an incendiary origin. Faulk

v. State, 608 S.W.2d 625, 627 (Tex. Crim. App. 1980); Miller v. State, 566 S.W.2d 614,

618 (Tex. Crim. App. 1978). “This is implicit in the requirement that the burning be

intentional.” Miller, 566 S.W.2d at 618. In an arson case, intent cannot be inferred from

the mere act of burning. Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. 1980).

       In this case, the investigators’ testimony established that the fire was of an

incendiary origin. Pleasant testified that Tess alerted to the odor of an ignitable liquid

where appellant’s tent had been located. Captain Wagner “ruled” the fire to be “an arson

or an incendiary fire, meaning that it was intentionally set.” He testified that it was a quick,

hot-burning fire that started in the area where the tent was located and that “an ignitable

liquid was used” to fuel the fire. Thus, a rational jury could conclude beyond a reasonable

doubt that the fire was incendiary in origin and intentionally set.

       The evidence showing that appellant set the fire was that an ignitable liquid was

used to fuel the fire. Tess alerted to the odor of an ignitable liquid where appellant’s tent

had been located, on appellant’s left sock, and on a package of cigarettes that was in

appellant’s shirt pocket. Swindall found kerosene on the package of cigarettes. He

testified that for kerosene to get on the pack of cigarettes, it “would have to touch
                                          8
something that had kerosene on it.” When asked for his opinion about the identity of the

ignitable fluid used to start the fire, Swindall said “the only ignitable liquid I found was

kerosene.”

       In addition to the forensic evidence, other evidence showed that shortly before

McBride left the camp to get beer, appellant and Gonzalez were arguing about some beer.

A prior argument between the defendant and the victim can be a circumstance supporting

guilt. Hernandez v. State, 895 S.W.2d 508, 510 (Tex. App.–Fort Worth 1995, pet. ref’d).

Motive is a factor to consider when determining whether a defendant committed arson.

Krebsbach v. State, 962 S.W.2d 728, 734 (Tex. App.–Amarillo 1998, pet. ref’d), see

Guevara, 152 S.W.3d at 50 (stating that “[m]otive is a significant circumstance indicating

guilt”). While appellant’s tent was burning, appellant sat fifteen to thirty feet away from it.

While an accused’s presence at the crime scene is not alone sufficient to support a

conviction, it is a circumstance tending to prove guilt, which, combined with other facts,

may suffice to establish guilt. Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App.

1987). Other facts showed that when McBride went to look for Gonzalez, appellant left the

camp. A factfinder may draw an inference of guilt from the circumstance of flight from the

crime scene. Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007). In addition

to motive, presence, opportunity, and flight, appellant made inconsistent statements about

the fire. He told McBride that Gonzalez set the tent on fire. Later that day, in his

videotaped statement, he said he had no memory of the fire and did not know how it

started. About a month later, he told Officer Serna that he saw his tent burning with

Gonzalez inside of it. In two letters, he accused Smith of burning his tent and murdering

Gonzalez. Inconsistent statements are probative of wrongful conduct and are also a

circumstance of guilt. Guevara, 152 S.W.2d at 50. When arrested shortly after the fire,

                                              9
appellant “smelled of burnt smoke all about his clothing” and had “a fresh burn mark” on

the upper right sleeve of his shirt and “a fresh redness” to the rear of his upper right arm

that appeared to be from a burn. McBride testified that appellant’s shirt did not have a burn

mark on it before the fire. An accused’s appearance indicating connection with a fire is a

circumstance linking the accused to the fire. Baugh v. State, 776 S.W.2d 583, 585 (Tex.

Crim. App. 1989).

       Appellant’s letters accusing Smith of setting fire to the tent and murdering Gonzalez

contained information contrary to appellant’s earlier statements that Gonzalez set the fire,

that he had no memory of the fire, and that he did not know how the fire started. Thus, a

rational jury could conclude that appellant fabricated the letters in an attempt to shift the

blame to an innocent third party. A defendant’s fabrication of stories about a fire is a factor

to consider when determining whether the defendant is guilty of arson. Krebsbach, 962

S.W.2d at 734.

       The controverting evidence showed that: (1) McBride did not see who set the fire;

(2) appellant told McBride that Gonzalez set the tent on fire; (3) appellant told Officer Serna

that he tried to get Gonzalez out of the tent and administer “mouth-to-mouth;” (4) in his

videotaped statement, appellant said he had no memory of the fire, that he had a candle

in his tent, and that Gonzalez was smoking a cigarette in his tent prior to the fire; (5) at the

crime scene, investigators did not find any suspicious paraphernalia such as a container

with a flammable liquid in it; and (6) appellant accused Smith of murdering Gonzalez and

setting the tent on fire. This evidence was obviously rejected by the jury in favor of the

evidence showing that the fire was incendiary in origin and that appellant set the fire.

       After viewing all the evidence in a neutral light, we hold that a rational jury could find

that appellant intentionally committed arson beyond a reasonable doubt. This finding is

                                              10
not so weak that it is clearly wrong and manifestly unjust, nor is the finding against the

great weight and preponderance of the evidence. See Willis v. State, 785 S.W.2d 378,

382 (Tex. Crim. App. 1989) (court upheld arson conviction against sufficiency challenge

when evidence showed fire was intentionally set through use of a flammable accelerant,

and defendant’s story of his actions during fire was inconsistent with physical evidence);

Krebsbach, 962 S.W.2d at 733-34 (court upheld arson conviction against factual-

sufficiency challenge when evidence showed fire intentionally set through use of a

flammable accelerant, dog trained in detecting presence of flammable liquids alerted to

presence of such liquids inside house where fire started, and defendant had motive,

opportunity, and had fabricated stories about the fire).

D. Whether the Evidence is Factually Sufficient to Prove That Appellant Murdered
Gonzalez While in the Course of Committing or Attempting to Commit Arson

       In order for the jury to have properly found that appellant committed murder,

sufficient evidence must have existed that he intentionally or knowingly caused Gonzalez’s

death. TEX . PENAL CODE ANN . § 19.02(b)(1). A jury may infer intent from any facts which

tend to prove its existence, including the acts words, and conduct of the accused, the

method of committing the crime, and from the nature of wounds inflicted on the victim.

Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991).

       Here, Gonzalez died at the scene of the fire, which the jury could reasonably

conclude was intentionally set by appellant. Her death resulted from smoke inhalation and

from burns to her body. Appellant and Gonzalez were alone at the camp when she

sustained her fatal injuries, and they were alone at the camp fifteen minutes before

McBride discovered the fire. Appellant and Gonzalez had argued shortly before the fire.

Thus, appellant had a possible motive to kill her. Even though motive is not an element


                                            11
of murder, it may be a circumstance that is indicative of guilt. Clayton, 235 S.W.3d at 780;

see Guevara, 152 S.W.3d at 50 (stating that “[m]otive is a significant circumstance

indicating guilt.”). When McBride confronted appellant at the scene of the fire, appellant

showed no concern that Gonzalez’s life was in danger, and he did not help McBride in his

attempt to put the fire out on her body. Instead, appellant called her a “[d]umb bitch” and

fled the scene. This callous behavior evidences a lack of remorse. A jury can rely on a

defendant’s lack of remorse to infer intent to commit capital murder. Darby v. State, 145

S.W.3d 714, 721 (Tex. App.–Fort Worth 2004, pet. ref’d) (citing Hernandez, 819 S.W.2d

at 810) (stating that a jury may infer intent from any facts that tend to prove its existence,

such as defendant’s acts, words, and conduct), see also Guevara, 152 S.W.3d at 51

(stating that an accused who did not “appear to be upset at the crime scene” is evidence

that suggested the accused’s complicity in the crime). Taking into account appellant’s

callous behavior, along with his videotaped statement that he did not remember the fire,

a rational jury could reasonably conclude that appellant’s statement to Officer Serna that

he tried to help Gonzalez was implausible and a lie. An implausible explanation to the

police is probative of wrongful conduct and is also a circumstance of guilt. Guevara, 152

S.W.3d at 50.

       Even though the letters accusing Smith of the crime do not detail any of appellant’s

acts of committing arson or murder, appellant, by blaming Smith for the fire and death of

Gonzalez, effectively stated that the fire was intentionally set and that it resulted in

Gonzalez’s death, which is consistent with the physical evidence. See Swearingen v.

State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (stating that although accused’s

exculpatory letter did not specifically detail his acts in furtherance of committing aggravated

sexual assault, it supported hypothesis that victim’s rejection of his sexual advances

                                              12
started the cycle of violence that led to her death).

       Viewing all the evidence in a neutral light, we hold that a rational jury could find

beyond a reasonable doubt that appellant intentionally caused the death of Gonzalez while

in the course of committing or attempting to commit arson. This finding is not so weak that

it is clearly wrong and manifestly unjust, nor is the finding against the great weight and

preponderance of the evidence. Therefore, we hold that the evidence is factually sufficient

to support the conviction for capital murder beyond a reasonable doubt. We overrule the

sole issue for review.

                                      III. CONCLUSION

       We affirm the trial court’s judgment.



                                                    ROSE VELA
                                                    Justice


Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 12th day of November, 2009.




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