                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-14-00255-CR

PATRICK KIRK PITZER,
                                                               Appellant
v.

THE STATE OF TEXAS,
                                                               Appellee



                          From the 272nd District Court
                               Brazos County, Texas
                         Trial Court No. 11-03284-CRF-272


                           MEMORANDUM OPINION


       In three issues, appellant, Patrick Kirk Pitzer, challenges his conviction for arson

with intent to damage a habitation. See TEX. PENAL CODE ANN. § 28.02 (West 2011).

Specifically, Pitzer contends that the evidence is insufficient to support his conviction; the

trial court erred in overruling his objection to the State’s introduction of extraneous acts;
and the trial court erred in overruling his objection to a juror who demonstrated clear

bias against him. Because we overrule all of Pitzer’s issues on appeal, we affirm. 1

                             I.      PITZER’S CHALLENGE TO JUROR BIAS

        In his third issue, Pitzer argues that the trial court erred in denying his challenge

for cause when a juror expressed a strong personal bias against Pitzer’s trial counsel.

Pitzer asserts that he was forced to use an additional peremptory strike on this juror

because the trial court erroneously denied his challenge for cause.

A.      Applicable Law

        The trial court’s ruling on a challenge for cause is reviewed for abuse of discretion.

Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005). “We afford the trial court

considerable deference, because it is in the best position to evaluate a prospective juror’s

demeanor and responses.” Id. “This is especially true when this Court is faced with a

vacillating or equivocating venireperson.” Banda v. State, 890 S.W.2d 42, 54 (Tex. Crim.

App. 1994); see Russeau, 171 S.W.3d at 879. “The trial court is able to consider important

factors such as demeanor and tone of voice that do not come through when reviewing a

cold record.” Banda, 890 S.W.2d at 54.

        The Court of Criminal Appeals has held that a prospective juror may be properly

challenged for cause and removed “if he cannot impartially judge the credibility of a




        1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite those
facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.

Pitzer v. State                                                                                     Page 2
witness.” Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999); see TEX. CODE CRIM.

PROC. ANN. art. 35.16(a)(9) (West 2006). Potential jurors “must be open-minded and

persuadable, with no extreme or absolute positions regarding the credibility of any

witness.” Ladd, 3 S.W.3d at 560. The fact that a prospective juror is more or less skeptical

of a certain category of witness, however, does not make him subject to challenge for

cause. Id. (stating that prospective jurors are not challengeable for cause “simply because

they would give certain classes of witnesses a slight edge in terms of credibility”); Jones

v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998) (holding that a prospective juror was

not challengeable for cause simply because she stated she would be more skeptical of

accomplice witnesses than of witnesses generally).

        The Court of Criminal Appeals has also stated that:

        A defendant may challenge a potential juror for cause if he is biased or
        prejudiced against the defendant or the law on which the State or defendant
        is entitled to rely. A trial judge must excuse the juror if bias or prejudice
        would impair the juror’s ability to carry out his oath and instructions in
        accordance with the law. Before the judge excuses the prospective juror,
        the law must be explained to him and the challenger must show that the
        potential juror understood the law and still could not overcome his
        prejudice. To establish harm for an erroneous denial of a challenge for
        cause, the defendant must show on the record that: (1) he asserted a clear
        and specific challenge for cause; (2) he used a peremptory challenge on the
        complained-of venire member; (3) his peremptory challenges were
        exhausted; (4) his request for additional strikes was denied; and (5) an
        objectionable juror sat on the jury.

Comeaux v. State, 445 S.W.3d 745, 749 (Tex. Crim. App. 2014) (internal citations &

quotations omitted).


Pitzer v. State                                                                         Page 3
B.      Discussion

        In support of his contention that the trial court erred by failing to grant his

challenge for cause, Pitzer directs us to the following exchange with Juror Number 58

during voir dire:

        THE COURT:         How are you, Ms. Huffman?

        MS. HUFFMAN:       How are you doing?

        THE COURT:         You had something you wanted to bring to our
                           attention?

        MS. HUFFMAN:       Yes.

        THE COURT:         What is it?

        MS. HUFFMAN:       Can I speak frankly?

        THE COURT:         Yes.

        MS. HUFFMAN:       I think I would not be a good juror.

        THE COURT:         You think you wouldn’t be a good juror?

        MS. HUFFMAN:       I don’t like the shenanigans of the defense attorney, so
                           I don’t want to be in the jury.

        THE COURT:         She doesn’t like the shenanigans of the defense lawyer.
                           Doesn’t want to be on this jury.

        MS. HUFFMAN:       I think you were illogical. You tried to make
                           everybody emote a certain way. You were very
                           illogical. What’s good for the individual is good for
                           society. And you were trying to also trying to equate
                           the choice in marriage, pulling the plug, freedom. And
                           a little bit of the logical breakdown there. And I don’t
                           know. I’m related to ten defense attorneys. I have a
Pitzer v. State                                                                       Page 4
                            son, brother, and sister an attorney. I don’t like all the
                            theatrics, so.

        THE COURT:          All right. Either side have any questions? Step back
                            outside. We’ll make a decision.

        At this point, defense counsel challenged Juror Number 58 for cause, arguing that

“her personal feelings regarding her ability—her personal feelings regarding my efforts

here on behalf of my client could cloud her ability to be fair and impartial.” The trial

judge then brought Juror Number 58 back into the courtroom and asked her the following

questions:

        THE COURT:          Yes, ma’am, thank you for your candid opinion on
                            that. But I just want to ask you on all the other legal
                            points, are you okay with the law on everything.

        MS. HUFFMAN:        Of course.

        THE COURT:          And Mr. Pitzer here is, you know, has a court-
                            appointed lawyer. He had no control over his lawyer.
                            Could you give him a fair trial?

        MS. HUFFMAN:        Yes.

        THE COURT:          In spite of who his lawyer is?

        MS. HUFFMAN:        Yes.

        THE COURT:          Okay. So you could be fair to the accused in this case;
                            is that correct?

        MS. HUFFMAN:        Yes, sir.

        THE COURT:          Be fair to the State in this case; is that correct?

        MS. HUFFMAN:        Yes, sir, it is.
Pitzer v. State                                                                          Page 5
        THE COURT:          Step back outside.

        [Defense counsel]: Could I ask her a question?

        THE COURT:          Yes.

        [Defense counsel]: You just learned I was court appointed on this. Does
                           that affected your abilities or your evaluation of his
                           presumption of innocence or anything like that?

        MS. HUFFMAN:        Never.

        The trial court subsequently denied defense counsel’s challenge for cause as to

Juror Number 58. Thereafter, defense counsel requested an additional peremptory strike,

asserting that Juror Number 58 should have been removed for cause and that he was

forced to take an objectionable juror—Juror Number 12—because he did not have any

peremptory strikes left. The trial court denied defense counsel’s request for an additional

peremptory strike.

        Based on our review of the record, we cannot say that the trial court abused its

discretion in denying defense counsel’s challenge for cause as to Juror Number 58. See

Russeau, 171 S.W.3d at 879. While Juror Number 58 expressed her dislike of defense

counsel’s tactics, she acknowledged that she could follow the law and be fair to both

Pitzer and the State. See, e.g., Mooney v. State, 817 S.W.2d 693, 701 (Tex. Crim. App. 1991)

(“Where a veniremember states that she can set aside her bias, the trial court’s refusal to

sustain the defendant’s challenge for cause will be reviewed in light of all of the answers

the veniremember gives. . . . Veniremember Kindell concluded that portion of her voir
Pitzer v. State                                                                       Page 6
dire testimony by stating that she could set aside her personal experiences and abide by

the oath of a juror. Given that the trial judge was in the better position to assess the

credibility of veniremember Kindell’s responses, we conclude that the court did not abuse

its discretion in overruling appellant’s challenge for cause.”).

        And to the extent that Juror Number 58’s statements expressed bias towards

Pitzer, we emphasize that the trial judge is to be given “great deference” because “the

trial judge is present to observe the demeanor of the venireperson and to listen to [her]

tone of voice.” Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002); see Russeau,

171 S.W.3d at 879; Banda, 890 S.W.2d at 54; see also TEX. CODE CRIM. PROC. ANN. art.

35.16(a)(9) (West 2006). Therefore, because we have concluded that the trial court did not

abuse its discretion in denying defense counsel’s challenge for cause as to Juror Number

58, and because Pitzer’s appellate argument presupposes that the trial court erred in

denying this challenge for cause, we cannot say that Pitzer has established harm under

Comeaux. See 445 S.W.3d at 749. We overrule Pitzer’s third issue.

       II.        NOTICE OF THE STATE’S INTENT TO INTRODUCE EVIDENCE OF EXTRANEOUS
                                                 ACTS

        In his second issue, Pitzer asserts that the trial court abused its discretion by

allowing the State to present evidence of two extraneous acts committed by Pitzer

without providing him with proper and timely notice.               See TEX. R. EVID. 404(b).

Specifically, Pitzer complains about testimony provided by Debbie Wedel, Pitzer’s sister,



Pitzer v. State                                                                       Page 7
who noted that Pitzer had threatened her on two occasions in response to her calling him

an arsonist.

A.      Applicable Law

        We review a trial court’s admission or exclusion of evidence for an abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court

abuses its discretion if it acts arbitrarily or unreasonably, without reference to any

guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.

1990). When considering a trial court’s decision to admit or exclude evidence, we will

not reverse the trial court’s ruling unless it falls outside the “zone of reasonable

disagreement.” Id. at 391; see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

        “Rule 404(b) literally conditions admissibility of other-crimes evidence on the

State’s compliance with the notice provisions of Rule 404(b).” Hernandez v. State, 176

S.W.3d 821, 824 (Tex. Crim. App. 2005). Texas Rule of Evidence 404(b) provides:

        Evidence of other crimes, wrongs or acts is not admissible to prove the
        character of a person in order to show action in conformity therewith. It
        may, however, be admissible for other purposes, such as proof of motive,
        opportunity, intent, preparation, plan, knowledge, identity, or absence of
        mistake or accident, provided that upon timely request by the accused in a
        criminal case, reasonable notice is given in advance of trial of intent to
        introduce in the State’s case-in-chief such evidence other than that arising
        in the same transaction.

TEX. R. EVID. 404(b).

        The purpose of Rule 404(b)’s notice requirement is to prevent surprise to the

defendant and to apprise him of the evidence the State plans to introduce at trial. See
Pitzer v. State                                                                        Page 8
Hernandez, 176 S.W.3d at 823-24; Hayden v. State, 66 S.W.3d 269, 272 (Tex. Crim. App.

2001). The rule requires “reasonable notice.” Hayden, 66 S.W.3d at 272.

B.      Discussion

        On appeal, Pitzer complains about an exchange between the prosecutor and

Wedel, wherein Wedel testified that she had not told police that Pitzer admitted to setting

the fire in this case because Pitzer threatened her. Specifically, Pitzer references the

following:

        Q [The State]:             Okay. Did you ever—but you never went to
                                   police?

        A [Wedel]:                 No.

        Q:                         And here we are. We’re about three years after
                                   the fire. Why now are you coming forward and
                                   telling people this?

        A:                         I—I have been threatened.

        [Defense counsel]:         Objection. Your Honor, may we approach?

                  ....

        [Defense counsel]:         My objection is to the threat, Judge. We’re
                                   talking about an extraneous offense that is
                                   absolutely—there hasn’t been any door opened
                                   to it.

        THE COURT:                 Threatened by who?

        [Defense counsel]:         By Kirk Pitzer.

        THE COURT:                 Man, that’s retaliation against a witness, that’s
                                   evidence of guilt.
Pitzer v. State                                                                        Page 9
        [Defense counsel]:          Going into an extraneous offense that opens the
                                    door into all sorts of relationships.

        THE COURT:                  If the defendant tries to shut down a witness,
                                    that’s admissible on guilt/innocence. You can
                                    show me some law otherwise, I’ll look at it.

        [Defense counsel]:          I don’t have any law otherwise, Judge.

        THE COURT:                  All right, I’m going to overrule your objection.

        After Wedel provided more testimony about Pitzer’s threats, defense counsel

objected once again on the following ground:

        [Defense counsel]:          Judge, I’m going to have one more objection,
                                    and it’s going to be as to the timeliness of that
                                    notice. That notice was provided to me July
                                    25th, 2014. We started trial on the 29th, I
                                    believe; is that correct?

                  ....

        [Defense counsel]:          We selected a jury on Tuesday, the 29th. And
                                    ask the Court to take judicial notice of the
                                    standard discovery order in this case. It was
                                    entered back in 2011. While it requires the
                                    turning over of extraneous offenses, there is not
                                    a time limit on it but I would like the Court to
                                    rule.

                  ....

        [Defense counsel]:          I would like the Court to rule that providing
                                    that information on July 25th, starting on July
                                    29th, a matter of—I’ll be generous and say five
                                    days right there, that that’s unreasonable.

        Thereafter, the State argued that:
Pitzer v. State                                                                         Page 10
        [The State]:               Judge, there’s a couple of responses. First of all,
                                   the State has sent over three notices of intent to
                                   admit extraneous offenses, one dated July 11th,
                                   one dated July 25th. First one was dated May
                                   13th.

                                          As to the July 25th, there was an
                                   amendment of the threats that were made. We
                                   found out about those threats about seven
                                   o’clock that night, the previous night. We
                                   immediately provided him notice as to those
                                   threats. I understand that [defense counsel] has
                                   objected to timetable. We gave him notice as
                                   quickly as possible.

                                           Under Hernandez v. State, which is a case
                                   out of the Waco Court of Appeals, three days
                                   was held to be insufficient if it’s a Friday over
                                   the weekend. In this case we started on
                                   Tuesday. Notice provided as early as possible
                                   on Friday. We actually didn’t start trial until
                                   Wednesday. And punishment, which is where
                                   we thought this testimony would be coming in,
                                   would have been much later in the week. He’s
                                   been provided sufficient notice, approximately
                                   5 to 7 days of notice, as to these statements and
                                   so—

        However, in response to questioning by the trial judge, defense counsel admitted

that he knew ten days prior to trial that Pitzer had threatened Wedel. Then, the trial judge

questioned Wedel, who acknowledged that from February 1 to March 1, 2012, she and

Pitzer got into an argument, which resulted in Wedel calling Pitzer an arsonist and Pitzer

responding that “if you ever called him that again it would be the last time you ever say



Pitzer v. State                                                                          Page 11
anything” and threatening to shoot her if she came out to his property. Ultimately, the

trial judge overruled Pitzer’s objection and allowed Wedel to testify about these threats.

        To preserve error regarding the State’s failure to provide reasonable notice of its

intent to use extraneous-offense evidence, the defendant must request a continuance to

mitigate the effects of surprise. See Martines v. State, 371 S.W.3d 232, 249 (Tex. App.—

Houston [1st Dist.] 2011, no pet.); Martin v. State, 176 S.W.3d 887, 900 (Tex. App.—Fort

Worth 2005, no pet.); see also Sinclair v. State, No. 10-11-00424-CR, 2015 Tex. App. LEXIS

2176, at *4 (Tex. App.—Waco Mar. 5, 2015, pet. ref’d) (mem. op., not designated for

publication). Pitzer did not request a continuance to allow additional time to investigate

the threat allegations or prepare a defense. As such, we cannot say that Pitzer preserved

for appellate review his complaint that the State failed to provide reasonable notice of the

extraneous offenses. See Martines, 371 S.W.3d at 249; Martin, 176 S.W.3d at 900; see also

Sinclair, 2015 Tex. App. LEXIS 2176, at *5.

        And even if Pitzer had preserved this complaint for appellate review, we note that

the admission of extraneous-offense evidence without proper notice is non-constitutional

error subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b). See

TEX. R. APP. P. 44.2(b); see also Hernandez, 176 S.W.3d at 824. We disregard any error that

does not affect Pitzer’s substantial rights. TEX. R. APP. P. 44.2(b). As stated earlier, the

purposes of the Rule 404(b) notice requirement serves to prevent surprise to the

defendant and to apprise him of the offense the State plans to introduce at trial. See


Pitzer v. State                                                                      Page 12
Hernandez, 176 S.W.3d at 825. Therefore, we consider the purpose of preventing surprise

in conducting a Rule 44.2(b) harm analysis. See id.

        In the instant case, the State provided Pitzer notice of its intent to introduce

evidence of the threats at least four days prior to jury selection. Furthermore, defense

counsel admitted that he knew ten days prior to trial about Wedel’s threat allegations

against Pitzer. As such, the record does not demonstrate that Pitzer was surprised by the

evidence. Additionally, despite Wedel’s delay in reporting the threats, prosecutors noted

that they provided Pitzer with notice of their intent to introduce evidence of the threats

as soon as they learned about the allegations. Therefore, based on our review of the

record, we cannot say that Pitzer was harmed by any error in admitting the extraneous-

offense evidence without proper notice. See TEX. R. APP. P. 44.2(b); Hernandez, 176 S.W.3d

at 824-25; see also Sinclair, 2015 Tex. App. LEXIS 2176, at **5-6; Pena v. State, No. 04-13-

00358-CR, 2014 Tex. App. LEXIS 11127, at *6 (Tex. App.—San Antonio Oct. 8, 2014, no

pet.) (mem. op., not designated for publication) (“If substantively admissible 404(b)

evidence is admitted in violation of the rule’s notice provision, the trial court’s error in

admitting the evidence cannot be ‘injurious’ if the defendant was not surprised by the

evidence.”).2 We overrule Pitzer’s second issue.


        2 In addition, we note that evidence of threats made by Pitzer to Wedel were substantively
admissible at trial. See Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994) (“We have held that
criminal acts that are designed to reduce the likelihood of prosecution, conviction, or incarceration for the
offense on trial are admissible under Rule 404(b) as showing ‘consciousness of guilt.’”); Brown v. State, 657
S.W.2d 117, 119 (Tex. Crim. App. 1983) (holding that evidence that the defendant threatened to kill the
sexual-assault victim’s family was admissible to show the reason for a delayed outcry); Rodriguez v. State,

Pitzer v. State                                                                                     Page 13
                                III.     SUFFICIENCY OF THE EVIDENCE

        In his first issue, Pitzer alleges that the evidence supporting his conviction is

insufficient. More specifically, Pitzer argues the evidence is insufficient to establish his

identity as the perpetrator of the arson.

A.      Applicable Law

        In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
        Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
        standard gives full play to the responsibility of the trier of fact fairly to
        resolve conflicts in the testimony, to weigh the evidence, and to draw
        reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
        319. “Each fact need not point directly and independently to the guilt of
        the appellant, as long as the cumulative force of all the incriminating
        circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
        at 13.

Id.

        Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved




577 S.W.2d 491, 492-93 (Tex. Crim. App. 1979) (concluding that evidence of threats against a witness is
admissible as showing “consciousness of guilt”); see also Greene v. State, 928 S.W.2d 119, 123 (Tex. App.—
San Antonio 1996, no pet.).

Pitzer v. State                                                                                   Page 14
the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,

443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are

treated equally:     “Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder

is entitled to judge the credibility of the witnesses and can choose to believe all, some, or

none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

        The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

B.      Discussion

        As noted earlier, Pitzer contends that the evidence is insufficient to establish his

identity as the perpetrator of the arson. With respect to arson cases, Texas courts have

stated the following:

              A person commits the offense of arson if she starts a fire with intent
        to destroy or damage a building or habitations within the limits of an
        incorporated city or town. TEX. PENAL CODE ANN. § 28.02(a)(2)(A). . . . .


Pitzer v. State                                                                         Page 15
                “To establish the corpus delicti in arson cases it is necessary to show
        that a fire occurred and that the fire was designedly set by someone.”
        Mosher v. State, 901 S.W.2d 547, 549 (Tex. App.—El Paso 1995, no pet.); see
        also Troncosa v. State, 670 S.W.2d 671, 680 (Tex. App.—San Antonio 1984, no
        pet.). A jury may infer from any facts that tend to prove its existence, such
        as acts, words, and conduct of the defendant. See Christensen v. State, 240
        S.W.3d 25, 32 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).
        “Circumstantial evidence is as probative as direct evidence in establishing
        the guilt of an actor, and circumstantial evidence alone can be sufficient to
        establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
        “Attempts to conceal incriminating evidence, inconsistent statements, and
        implausible explanations to the police are probative of wrongful conduct
        and are also circumstances of guilt.” Guevara v. State, 152 S.W.3d 45, 50 (Tex.
        Crim. App. 2004). Each fact need not point directly and independently to
        the guilt of the accused, so long as the logical force of the probative
        evidence, when coupled with reasonable inferences to be drawn therefrom,
        is sufficient to support the conviction. See Evans v. State, 202 S.W.3d 158,
        166 (Tex. Crim. App. 2006).

Orr v. State, 306 S.W.3d 380, 394-95 (Tex. App.—Fort Worth 2010, no pet.). Moreover, this

Court has stated that the identity of the criminal actor is an elemental fact in criminal

cases and that evidence as to the identity of a criminal may be proven by direct or

circumstantial evidence. Johnson v. State, 263 S.W.3d 405, 412 (Tex. App.—Waco 2008,

pet. ref’d).

        At trial, Antonio Oldham testified that he lived across the street from Pitzer and

next door to the house that burned down. According to Oldham, the previous tenants of

the burnt house were hoarders. Moreover, Oldham recounted that the burnt house had

a fly problem and that Pitzer told him the following: “You know what, I’m going to take

care of the fly problem for you. Don’t worry about it.” Later, Pitzer also told Oldham:

“You know what, I’ll burn the damn house down.” Oldham testified that Pitzer stated
Pitzer v. State                                                                           Page 16
on three or four occasions in the three or four days leading up to the incident that he

would burn the house down. Oldham also stated that Pitzer told him on the night

preceding the fire to not “worry about it. I’m going to take care of it.” While the fire was

raging, Pitzer allegedly told Oldham to not worry about the fire spreading to Oldham’s

house because Pitzer was watching it the whole time, and Pitzer also described how he

had entered the house through the back window.

        Gerald Burnett of the Bryan Fire Department Fire Marshal’s Office testified that he

located a shoe print under the open window in the dust on the corner bedroom floor that

indicated someone other than a firefighter had accessed the house. Burnett also noticed

a similar shoe print in the “trailer” inside the house and outside the burnt house.3 During

the execution of a search warrant for Pitzer’s house, Burnett found tennis shoes that were

confirmed to be Pitzer’s inside Pitzer’s master-bedroom closet that had the same shoe-

tread pattern as those found inside and outside the burnt house. Additionally, Burnett

found several gas cans and a modified pesticide sprayer in Pitzer’s backyard. The

pesticide sprayer, in particular, had “a rag shoved through the cap” that was similar to a

wick. The discovery of the gas cans and the modified pesticide sprayer were significant

because investigators discovered that gasoline was used in the fire.



        3Burnett explained that a “trailer” is something that would connect or move a fire from room to
room. In this case, “there were liquid stains that went from the kitchen area where it was burned, through
the dining area, through the living room, through the bedrooms, back around to the breezeway, back
around to the kitchen again.” In describing the liquid, Burnett recounted that it was not water but rather
“greasy or petroleum like.” Later, Burnett referred to the “trailer” as the accelerant used to start the fire.

Pitzer v. State                                                                                      Page 17
        Wedel testified that Pitzer admitted to burning down the house immediately after

it happened. After he was released from jail, Pitzer admitted in detail to Wedel how he

burned the house and that he had no remorse for what he had done. Later, Wedel noted

that Pitzer had threatened her. Specifically, Wedel recounted that when she called Pitzer

an arsonist, Pitzer responded that she “had better never say that again that it would be

the last time [she] talked.” On another occasion, Pitzer threatened to shoot Wedel.

        Felix Fernandez, a contractor that was working on remodeling the house at the

time of the fire, stated that Pitzer had asked him how much the owner of the house, Brian

Stephen, was paying him to fix up the house and then complained that Stephen did not

want to pay for a roof on Pitzer’s house. And finally, Ruth Torres of the Bryan Police

Department testified that she saw Pitzer standing outside watching the house burn—an

act she identified as unusual.

        Despite the aforementioned evidence, Pitzer attempts to discredit the testimony of

Oldham and Wedel by arguing that: (1) Oldham is not credible because he is a four-time

felon, because his son had previously started a fire by playing with a lighter inside a

closet, and because he was concerned about being a suspect in this case; and (2) Wedel is

not credible because she maintained until the eve of trial that Pitzer was innocent.

Ultimately, whether Pitzer’s arguments cast doubt on the testimony of Oldham and

Wedel are credibility and demeanor questions for the jury. See Chambers, 805 S.W.2d at

461; see also Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2004, pet.


Pitzer v. State                                                                     Page 18
ref’d) (“The alibi testimony, the lack of physical or forensic evidence, and the differences

between the testimony of the witnesses are all factors for the jury to consider in weighing

the evidence.”). Following Jackson, we presume that the jury found the testimony of

Oldham and Wedel to be credible and defer to those findings. See 443 U.S. at 326, 99 S.

Ct. at 2793; see also Clayton v. State, 235 S.W.3d 772, 778-79 (Tex. Crim. App. 2007); Mosley

v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998); Johnson, 176 S.W.3d at 78. Therefore,

viewing the evidence in the light most favor to the jury’s verdict, we conclude that the

evidence is sufficient to establish Pitzer’s identity as the perpetrator of the arson. See TEX.

PENAL CODE ANN. § 28.02; see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio, 351

S.W.3d at 894. We overrule Pitzer’s first issue.

                                      IV.    CONCLUSION

        We affirm the judgment of the trial court.




                                                   AL SCOGGINS
                                                   Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 22, 2015
Do not publish
[CR25]




Pitzer v. State                                                                         Page 19
