                            NUMBER 13-11-00730-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

CARL EDWARD SHINER A/K/A                                                  Appellant,
CARL ROBERT SHINER,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 377th District Court
                           of Victoria County, Texas.


                        MEMORANDUM OPINION
                 Before Justices Rodriguez, Garza and Vela
                  Memorandum Opinion by Justice Garza
      A jury convicted appellant, Carl Edward Shiner a/k/a Carl Robert Shiner, of

arson, a first-degree felony offense, see TEX. PENAL CODE ANN. § 28.02 (a)(2)(A), (d)(2)

(West 2011), enhanced by prior convictions under the habitual felony-offender statute,

see id. § 12.42 (d) (West Supp. 2011), and sentenced him to ninety-nine years’

imprisonment. By a single issue, appellant challenges the sufficiency of the evidence
that he had the required intent to commit arson. We affirm.

                                    I. BACKGROUND

      The following testimony was provided by the State’s witnesses at trial. Appellant

presented no witnesses.

   A. Lou Brooks

      Lou Brooks testified that she and her husband, Troy Brooks, perform part-time

security work at apartments located in Bloomington, Texas. Appellant was a resident in

an apartment complex where Lou and Troy performed security duties.

      On the afternoon of December 22, 2010, Lou and Troy first encountered

appellant when he began chasing their vehicle, armed with crutches and a two-by-four.

Later that afternoon, Lou and Troy responded to complaints that appellant was beating

on his neighbors’ doors. Appellant had barricaded the bathroom in his apartment shut

and informed Lou and Troy that someone was in his bathroom. Lou and Troy checked

the bathroom and found no one inside. Later, in response to another call, Lou and Troy

found appellant tearing at the outside wall of the apartment; appellant said that

someone was in his wall. Appellant said that his wife—who no longer lived in the

apartment—had been in his apartment and had run into a neighboring apartment. Lou

and Troy checked appellant’s apartment and found no one; they also checked the

neighboring apartment and found no one. Approximately twenty minutes later, Lou and

Troy noticed smoke coming from appellant’s apartment. Troy went inside the apartment

and extinguished the fire with water, while Lou and Hilda Molina, the apartment

manager, talked with appellant outside. Lou said that appellant was “jittery” and was

“talking out of his head.” Appellant’s belongings were removed from the apartment to

assess the damage. According to Lou, the fire started in a closet that was piled waist-
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high with clothing and shoes. The fire damage was limited to appellant’s apartment,

which was located in a building with two other occupied units.

   B. Troy Brooks

       Troy provided similar testimony regarding the incidents with appellant on

December 22, 2010. Troy stated that earlier in the day, appellant had pulled siding off

the walls of the apartment complex in an attempt to get to people he believed were

inside the walls. Troy described how appellant chased him and Lou with a two-by-four.

Later that evening, Lou and Troy responded to appellant’s complaint that someone had

stolen something from his apartment and was hiding in the next-door apartment. No

one was in the next-door apartment.        Troy noticed smoke coming from appellant’s

apartment, identified the source as a pile of burning clothing, and extinguished the fire

with water. The fire department arrived shortly thereafter. Troy stated that appellant’s

behavior had been reported to the sheriff’s department on several prior occasions

because they knew “something was wrong”; however, the department’s response was

that it was unable to take any action against appellant unless he harmed someone.

   C. Clara Escalante

       Clara Escalante testified that she knows appellant because he used to live in the

apartment complex near Escalante’s home. On the day of the fire, Escalante said

appellant had come by her home and asked for money to buy beer and cigarettes.

When Escalante and her husband refused, appellant became very angry and

threatened that he was going to set fire to everyone’s house. Escalante was afraid

because her husband is disabled due to a stroke.           Escalante reported to the fire

marshal that appellant told her he had started the fire.

       On cross-examination, Escalante stated she was at appellant’s apartment when
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he started the fire. Appellant started the fire using a “hot plate” and a towel. Escalante

reported to the fire marshal that she saw appellant outside his apartment with a burning

towel, but did not report the details of how appellant started the fire because she was

afraid of him.

   D. Hilda Molina

       Hilda Molina testified that at the time of the fire, she was an apartment manager

at the complex. Molina stated that Lou came to her office and reported that some

tenants were complaining about appellant banging on the walls. When Lou and Molina

reached appellant’s apartment, they noticed that the front door was open and smoke

was coming out. Appellant came to the door and said that “a guy” tried to set his

apartment on fire and then ran into the apartment next door. Lou opened the next-door

apartment; no one was there. The source of the fire in appellant’s apartment was a pile

of clothing burning in a closet. According to Molina, the apartment had to be repainted

and the appliances replaced. On cross-examination, Molina testified that she did not

see Escalante at the apartment.

   E. Roger Hempel

       Roger Hempel, a firefighter and batallion chief with the Victoria Fire Department,

testified that he and approximately eleven other fire department personnel responded to

the reported fire at the apartment complex. The fire was already extinguished when

they arrived. The firefighters identified the pile of smoldering clothing as the source of

the fire. The fire crew removed the charred clothing from the apartment.

   F. Ron Prey

       Ron Prey, the Victoria County Fire Marshal and Fire Chief, testified that he was

dispatched to the fire at appellant’s apartment. By the time Chief Prey arrived, the fire
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had been extinguished. He conferred with Chief Hempel and several witnesses. Chief

Prey inspected the closet area after most of the charred clothing had been removed.

He also spoke to appellant at the scene regarding the fire. Appellant told Chief Prey

multiple stories regarding the fire. Initially, appellant said his brother’s girlfriend had

started the fire and ran away. He later said that two women set the fire and ran away.

Still later, appellant said that he may have accidentally started the fire himself.      In

inspecting the apartment, Chief Prey did not find any evidence that the fire started

accidentally.   Appellant told Chief Prey that he may have accidentally dropped a

cigarette in the closet.   Chief Prey “felt something was wrong” because appellant’s

“story was not what [he] was seeing in the closet.” When Chief Prey first made contact

with appellant, appellant was “kind of mumbling to himself,” seemed confused, and

“wasn’t making any sense.” Chief Prey told appellant that he did not find any evidence

in the closet that a cigarette accidentally started the fire. Appellant responded that he

may have set the fire in the closet with a cigarette or a lighter.       Chief Prey also

interviewed Escalante at the scene and again later in his office. According to Chief

Prey, appellant’s version of events did not “match up” to the facts reported by other

witnesses at the scene.

       On cross-examination, Chief Prey stated that he concluded the fire started in the

closet and was ignited by either a cigarette or a lighter using some of the polyester

clothing in the closet. Although cigarettes were found in the apartment, no cigarettes

were found under the clothing in the closet.      Matches, lighters, and ash trays with

cigarettes in them were also found in the apartment. Chief Prey did not recall finding a

“hot plate” in the apartment and did not recall anyone at the scene mentioning a “hot

plate.” Chief Prey said that in her statement, Escalante did not mention that she had
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seen appellant start the fire with a towel and a “hot plate.”

       The State and defense rested. The jury found appellant guilty and sentenced

him to ninety-nine years’ imprisonment. This appeal followed.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       The court of criminal appeals has held that there is “no meaningful distinction

between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-

sufficiency standard” and that the Jackson standard “is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. Crim. App.

2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly,

we review claims of evidentiary insufficiency under “a rigorous and proper application of

the Jackson standard of review.” Id. at 906–07, 912. Under the Jackson standard, “the

relevant question is whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319; see Brooks, 323 S.W.3d

at 898–99 (characterizing the Jackson standard as: “Considering all of the evidence in

the light most favorable to the verdict, was a jury rationally justified in finding guilt

beyond a reasonable doubt”). The fact-finder is the exclusive judge of the credibility of

witnesses and of the weight to be given to their testimony. Anderson v. State, 322

S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v.

State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)). Reconciliation of conflicts in the

evidence is within the fact-finder's exclusive province. Id. (citing Wyatt v. State, 23

S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies in the
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testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex.

Crim. App. 2000)).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 314

(Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997)). “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, 953 S.W.2d at 240).

       A person commits the offense of arson if he starts a fire with intent to destroy or

damage a building or habitation within the limits of an incorporated city or town. TEX.

PENAL CODE ANN. § 28.02(a)(2)(A); Orr v. State, 306 S.W.3d 380, 394 (Tex. App.—Fort

Worth 2010, no pet.). “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.” Orr, 306

S.W.3d at 394 (quoting Mosher v. State, 901 S.W.2d 547, 549 (Tex. App.—El Paso

1995, no pet.). “[T]he offense of arson is complete whenever the actor starts a fire with

the requisite culpable mental state, whether or not damage of any kind actually occurs.”

Mosher, 901 S.W.2d at 549.

       A person commits arson with specific intent to damage or destroy a building,

habitation, or vehicle if it is the person’s conscious objective or desire to engage in the

conduct or cause the result. Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App.

1980); see Scruggs v. State, No. 14-09-00329-CR, 2010 Tex. App. LEXIS 3750, at *4–5

(Tex. App.—Houston [14th] Dist. May 20, 2010, no pet.) (mem. op., not designated for
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publication); see also TEX PENAL CODE ANN. § 6.03(a) (West 2011). A jury may infer

intent from any facts that tend to prove its existence, such as acts, words, and conduct

of the defendant. Orr, 306 S.W.3d at 394–95. “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.” Id. at 395 (quoting 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.” Id. (quoting 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. Id. (citing Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim.

App. 2006)).

                                      III. DISCUSSION

       Appellant argues that the evidence is insufficient to prove that he acted with the

intent to commit arson. Appellant asserts that the State’s evidence constitutes “mere

surmise” that appellant intentionally started the fire. Appellant also argues that “[i]t is

difficult to decipher how a rational jury could resolve [Escalante’s] testimony with that of

the other witnesses” to conclude that appellant was guilty of arson. We disagree.

       The evidence showed that: (1) appellant had threatened to set everyone’s house

on fire; (2) appellant was acting erratically, beating on his neighbors’ doors, tearing at

the outside wall, and chasing the security personnel; (3) when Lou and Troy noticed

smoke coming from appellant’s apartment, they did not see anyone else in the vicinity;

(4) Escalante testified that appellant started the fire using a “hot plate” and a towel; and
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(5) Chief Prey testified that he found no evidence of an accidental fire. Appellant’s

inconsistent statements regarding the fire included that the fire was started by “a guy,”

by his brother’s girlfriend, by two women, and possibly accidentally by himself. See

Guevara, 152 S.W.3d at 50 (recognizing that inconsistent statements and implausible

explanations are circumstances of guilt).          Viewing the evidence in the light most

favorable to the prosecution, we conclude that a rational jury could have determined

beyond a reasonable doubt that appellant started the fire and had the specific intent to

damage or destroy the apartment building when he did so. See Orr, 306 S.W.3d at 396.

We hold that the evidence was sufficient to support the jury’s verdict and overrule

appellant’s sole issue.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.

                                                    ________________________
                                                    DORI CONTRERAS GARZA
                                                    Justice

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

Delivered and filed the
15th day of November, 2012.




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