             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-17-00281-CR
      ___________________________

      KEVIN M. GIBSON, Appellant

                      V.

           THE STATE OF TEXAS


   On Appeal from the 213th District Court
          Tarrant County, Texas
        Trial Court No. 1389802D


Before Sudderth, C.J.; Birdwell and Womack, JJ.
  Memorandum Opinion by Justice Birdwell
                          MEMORANDUM OPINION

      A jury convicted appellant Kevin M. Gibson of arson of a habitation, a first-

degree felony.1 On appeal, he contends that the evidence is insufficient to support his

conviction because the jury could not have rationally determined beyond a reasonable

doubt that he started the fire. He challenges the credibility of the State’s witnesses

who identified him as the arsonist, and he contends that the jury irrationally rejected

his defensive theories. Deferring, as we must, to the jury’s resolution of conflicting

evidence and of conflicting inferences from that evidence, we hold that the evidence

is sufficient to support Gibson’s conviction. We affirm.

                                    Background

      Gibson met Giovana while he was serving in the Army in Panama. They

married, began living in the United States in 1990, and had children together.

Gibson’s friend, who was also in the Army, married (and later divorced) Giovana’s

sister Mariana, and they also moved to the United States. Mariana eventually had two

daughters, Stephanie and Marcy. 2

      Gibson and Giovana’s relationship became contentious. They divorced in 2012,

and they engaged in disputes concerning custody of their minor children and


      1
       See Tex. Penal Code Ann. § 28.02(a)(2)(D), (d)(2).

      We use “Marcy” as a pseudonym to preserve the anonymity of Mariana’s
      2

second daughter, who was a minor at the time of the fire and when she testified. See
McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).


                                           2
concerning possession of their house. At some point, Gibson accused Giovana of

scratching up his Porsche and of damaging parts of his house. She accused him of

putting sugar in her gas tank with the intent of damaging her car. Before the events

leading to Gibson’s arson charge, he called the police when Giovana removed

personal property from his house. In July 2012, Giovana sent Gibson an e-mail

stating, “[A]sshole you will never take my kids from me. [I] will never give your things

back that [I] took. [Y]ou cannot prove [I] damaged your car or your house. [I] will

take all your money and there is nothing you can do about it.” Around that same time,

Gibson gave Giovana notice that under the terms of their divorce decree, she was

required to vacate the house.

        One early morning in October 2014, while Gibson and Giovana’s relationship

remained acrimonious and while their child-custody dispute was pending, Mariana and

Marcy, who was approximately twelve years old at the time, were sleeping together in

a one-bedroom apartment. Mariana awoke when Jackson, a Chihuahua, started

barking. When Mariana went toward the apartment’s front door, she saw “a sparkle

like fire crackers on the bottom of the door.” She then saw flames. She attempted to

open the front door, but the handle was hot. According to her testimony, she looked

through a glass door outside the apartment and saw Gibson running away from the

fire.

        Mariana called 9-1-1 but hung up to extinguish the fire. She filled a laundry

basket with water and doused the fire several times. She then called the police again.

                                           3
She told the dispatcher that she had seen a “guy driving a Porsche” while looking out

a window. She also referred to a “black Dodge.”3 Later in the call, she told the

dispatcher that she knew that Gibson had set the fire.

       After calling the police the second time, Mariana, who was hysterical, called

Stephanie to tell her about the fire and to inform her that Gibson had started it.

Stephanie drove to the apartment.4 She saw the burnt front door and noticed that

Mariana was shocked and that Marcy seemed “numb.”

       Video surveillance equipment, which Stephanie had bought after her truck had

been stolen at the same apartment complex, recorded events inside and outside the

apartment at the time the fire was set from four angles. Upon arriving at the

apartment, Stephanie watched the recordings and identified Gibson’s black Porsche in

the parking lot near the time of the arson.

       Bobby Perkins, a Fort Worth police officer, went to the apartment. He noticed

that Mariana was angry and agitated. Mariana told Officer Perkins that she knew who

had set the fire.




       Concerning her statement about the Dodge, Mariana testified at trial, “In a
       3

moment of [being] nervous and scared, I [said] -- I don’t know why I [said] a Dodge,
because it was a Porsche, because he had the Porsche for a long time.”
       4
        Stephanie lived at the apartment but was not staying there that morning.


                                              4
      Chris Nelson, a Fort Worth firefighter and arson investigator, also went to the

apartment. Outside the apartment’s front door, he saw a newspaper5 and pieces of

wood, indicating to him that someone had set the fire intentionally. Nelson

determined that the arsonist had used a combustible substance, later found to be

gasoline 6 through testing at a lab. Nelson spoke to Mariana and to Stephanie, and they

told him that Gibson had set the fire. Concerning his conversations with Mariana and

with Stephanie on the morning of the arson, Nelson later testified, “They were very,

very, very adamant on scene as knowing that person, the way he walked, the way he

looked, the vehicle he drove. They were very, very adamant about knowing that.”

Based on Mariana’s and Stephanie’s attitudes and the manner in which they were

discussing the fire, Nelson believed that they were telling the truth, and he secured an

arrest warrant.

      Ernesto Tamayo, a Fort Worth police officer, executed the arrest warrant at

Gibson’s house and saw the Porsche. According to Officer Tamayo, when he told

Gibson about his arrest for arson, Gibson did not act surprised; he became quiet and


      5
       The newspaper was a publication from Keller. Someone at the scene told
Nelson that Gibson subscribed to that newspaper, but Nelson did not confirm that
statement by contacting the newspaper.
      6
       Nelson did not attempt to find Gibson’s Porsche to determine whether any
gasoline had spilled inside it or to search his house to determine whether he had a gas
can. At trial, he opined that such evidence would have “proved nothing.” Nelson did
not obtain a search warrant to examine Gibson for the purpose of determining
whether Gibson had a burn injury.


                                           5
“kind of shut down.” 7 Officer Tamayo opined that Gibson’s reaction was inconsistent

with someone who did not commit an offense.

       A grand jury indicted Gibson with arson of a habitation. Gibson retained

counsel and pleaded not guilty at a jury trial. He testified and denied that he had set

the fire. He also called an alibi witness, his former girlfriend Sandra Estrada, who

testified that she was with him on the morning of the fire.

       After hearing the parties’ evidence and arguments, the jury found Gibson guilty

and found that he had used or exhibited a deadly weapon while committing the

offense. The jury heard more evidence and arguments concerning his punishment,

assessed ten years’ confinement, and asked the trial court to suspend that sentence

and place Gibson on community supervision. The trial court did so. Gibson brought

this appeal.

                               Evidentiary Sufficiency

       In one point, Gibson argues that the evidence is insufficient to sustain his

conviction. He argues that the jury could not have rationally found beyond a

reasonable doubt that he set the fire because evidence about his acrimony with

Giovana suggested that her family was biased against him and framed him for the

crime; because the surveillance videos that purportedly show him or his Porsche are


       Gibson disputed Officer Tamayo’s account of the arrest. He testified,
       7

“[Officer Tamayo] would not tell me any details. I tried to get him to tell me what was
going on. He refused. He just said he had a warrant to arrest me.”


                                           6
of poor quality; because the videos discredit Mariana’s and Marcy’s identifications of

him as the arsonist by establishing that the man who set the fire had driven away

before Mariana opened the apartment’s door; and because an alibi witness testified

that she was with him at the time of the arson.

Standard of review and applicable law

       Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV; Tex. Penal Code Ann. § 28.02(a)(2)

(stating the elements of arson of a habitation). In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full

play to the factfinder’s responsibility to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622.

      The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. Thus, when performing an

evidentiary-sufficiency review, we may not re-evaluate the evidence’s weight and

credibility and substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at

622. Instead, we determine whether the necessary inferences are reasonable based on

                                            7
the evidence’s cumulative force when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State,

514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency

review must not engage in a ‘divide and conquer’ strategy but must consider the

cumulative force of all the evidence.”). We must presume that the factfinder resolved

any conflicting inferences in favor of the verdict, and we must defer to that resolution.

Murray, 457 S.W.3d at 448–49.

Inculpatory value of Mariana’s, Marcy’s, and Stephanie’s identifications

      Gibson challenges the credibility of the identifications made by Mariana and

Marcy, who testified that they saw Gibson fleeing from the arson when it occurred,

and of Stephanie, who testified that she recognized him from the surveillance

recordings. Concerning Stephanie’s testimony, Gibson argues that the recordings

show only “an unidentifiable man,” and he contends that Mariana’s and Marcy’s

accounts of seeing him flee are “wholly refuted” by the recordings, which show that

the man who set the fire drove away before Mariana opened the apartment’s door.8

      Mariana’s and Marcy’s identifications of Gibson as the arsonist did not depend

upon an open front door to the apartment. Rather, Mariana testified that after she

awoke to Jackson’s barking, she followed him to the front door of the apartment, saw


      8
        In his brief, Gibson states that the recordings “establish that the man in the
black car was not only already in his car, but had . . . driven off before Mariana went
to the door.”


                                           8
sparks through the door, and saw Gibson through a “big slide glass door” before she

opened the front door. 9 Concerning her identification of Gibson from looking out the

glass door, Mariana testified, “I [have] know[n] him all my life[,] . . . and I know his

back side from anywhere. I can see him from the distance, and I know who he is.”

Mariana testified that she had “[n]o doubt” that she saw Gibson running away from

the fire.

       Gibson emphasizes that “[c]ontrary to her trial testimony, Mariana told Officer

Perkins that she put out the fire with a bucket of water and then ran out on the

balcony to see Gibson drive away in a . . . Porsche.” Officer Perkins’s police report,

which he completed the morning of the fire, stated that after Mariana doused the fire,

she ran onto the balcony and saw Gibson driving away.10 Similarly, Nelson wrote that

Mariana saw Gibson as she was “putting water on the fire.” The video recordings

show that Gibson had driven out of the frame of the recordings long before Mariana

doused the fire, and it is therefore unlikely that she saw him after dousing the fire. But

to the extent that the inculpatory value of Mariana’s testimony about seeing Gibson at


       Consistent with this testimony, the trial court admitted testimony that Mariana
       9

gave at a hearing in another case. In that testimony, she stated that after she awoke
because of Jackson’s barking, she went toward the front door of the apartment, tried
to calm Jackson, saw flames near the door, looked out the glass door to the balcony to
discern the cause of the fire, and saw Gibson running to his car.

        At trial, Officer Perkins testified that he wrote what Mariana had said to him
       10

to the best of his memory; he averred that the report was a “summary of what was
said.”


                                            9
the time of the arson hinges on a conflict between her testimony and what she told

Officer Perkins and Nelson on the morning of the fire, the jury could have reasonably

resolved that conflict by accepting her testimony. See Griffin v. State, No. 05-16-00289-

CR, 2017 WL 929498, at *2 (Tex. App.—Dallas Mar. 9, 2017, pet. ref’d) (mem. op.,

not designated for publication); Golden v. State, No. 05-95-01174-CR, 1997 WL

524158, at *2 (Tex. App.—Dallas Aug. 26, 1997, pet. ref’d) (not designated for

publication) (“The jury was entitled to believe Clayton’s trial testimony, the police

report, both, or neither. The determination of the witness’s credibility was within the

factfinder’s discretion.”).

       Next, Marcy, who was fifteen years old at the time of the trial, testified that on

the morning of the fire, she awoke to the sounds of a fire alarm and of a dog barking.

She testified that while she was helping Mariana put out the fire, Mariana was

screaming, “It was [Gibson].” Marcy testified that while she was attempting to find a

container to fill with water, she looked out a bedroom window and saw Gibson’s

Porsche driving away. She explained that she recognized Gibson’s Porsche because

she had seen it on several occasions and had ridden in it. Although Marcy testified

that Mariana had already opened the front door when Marcy saw Gibson’s Porsche,

and although the arsonist’s car was not in the frame of the video recording at that

time, no evidence forecloses the possibility that Marcy saw the Porsche at a distance

from the apartment that the recording did not capture. Furthermore, the jury had the

prerogative to accept Marcy’s testimony that she saw Gibson even if it rejected that

                                           10
she did so after Mariana opened the door. See Franklin v. State, 193 S.W.3d 616, 620

(Tex. App.—Fort Worth 2006, no pet.) (“[T]he jury is free to accept or reject any or

all of the evidence of either party, and any or all of the testimony of any witness.”).

      Next, the jury heard Stephanie testify that from watching the surveillance

recordings, she knew that Gibson had set the fire. She averred that in the recordings,

she recognized Gibson’s Porsche, which Gibson had owned years before the fire,

from a distinctive narrow shape on its front end and a round shape on its back end.

She testified that she had seen Gibson drive that car several times over a number of

years. Also from the recordings, Stephanie identified Gibson through his gait. She

testified, “I’ve known him for years, and I know how he walks.” She stated, “His belly

pops out like that, and he just stumbles like that, like a little duck walk.” She testified

that she had “[n]o doubt at all” that the man in the video was Gibson.

      Gibson appears to challenge Stephanie’s testimony based on the quality of the

recordings. But the jury could have rationally found that the recordings were sufficient

to support Stephanie’s testimony. The recordings show that for nearly a minute at

4:01 a.m., a dark car drove slowly through the apartment complex’s parking lot and

backed into a parking space. The recordings further show from two angles that at 4:04

a.m., the arsonist got out of that car and walked slowly toward the apartment,

remaining in the frame of the recording for almost twenty seconds. At 4:06 a.m., the

arsonist returned to the car and was visible in the recordings for another twenty

seconds. The arsonist then walked back to the apartment, and the recordings captured

                                            11
his slow walk for twenty more seconds. Finally, at 4:08 a.m., after setting the fire, the

arsonist quickly walked to the car, remaining in the frame of the recording for about

ten seconds. The recordings then show the arsonist pulling out of his parking space

and driving outside the frame of the recordings.

       We conclude that the jury could have rationally accepted Stephanie’s

identification of Gibson through the recordings. See id. Although Gibson emphasizes

that the recordings do not show the arsonist’s face, Stephanie did not identify Gibson

by his face; rather, she identified him by his Porsche and by his gait, which the

recordings depict.

      For all of these reasons, we conclude that the jury could have rationally relied

on the confident, unwavering identifications provided by Mariana, Marcy, and

Stephanie to find that Gibson was the arsonist. See id.

Alleged bias of the State’s witnesses

      Gibson next asserts that the jury’s verdict was irrational because Giovana’s

family members, who provided the primary inculpatory testimony, were “wholly

biased” and had motives to frame him for the arson. At trial, through his questioning

of the witnesses and during argument, Gibson presented the defensive theories that

the State’s witnesses lied about his setting the fire to retaliate against him for past

events or to support Giovana and harm Gibson in their court battles, including their

child-custody case and a lawsuit involving monetary damages. Gibson testified that

after he and Giovana divorced, contrary to the divorce decree, Giovana and her

                                           12
family took $50,000 worth of his personal property. He also explained that upon their

divorce, Giovana stayed longer in his house than the divorce decree allowed, and he

had to give her a notice to vacate the home. Next, he testified that while he was on an

out-of-state trip, Giovana scratched his Porsche and caused several thousand dollars

in damage. He also testified that inside his house, Giovana cracked ceramic tiles,

poured grease on carpets, and knocked holes in walls. He sued Giovana for the

damage caused to his car and house; he testified that she responded by unsuccessfully

filing for bankruptcy and that his suit against her was still pending at the time of the

arson trial. Gibson testified that as a result of being charged with arson, the court with

jurisdiction over his children’s custody lessened the amount of time that he could

spend with them. During Gibson’s cross-examination by the State, the following

exchange occurred:

            Q. So it’s your testimony that Giovana hated you so much that
      she would get her sister to set her apartment on fire with her 12-year-old
      daughter at 4:00 in the morning and somehow stage this whole scene?

             A. I believe they did. I was in shock that they did it.

      Even if this evidence might have led a hypothetical reasonable factfinder to

conclude that Giovana’s family concocted a scheme to set fire to the apartment and

testified against Gibson out of spite or with the purpose of helping Giovana in

litigation, it was the jury’s prerogative to choose between reasonably equal competing

theories. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001); Gregory v. State,

159 S.W.3d 254, 261 (Tex. App.—Beaumont 2005, pet. ref’d). By its verdict, the jury


                                           13
implicitly rejected Gibson’s defensive theory and found the State’s witnesses credible.

See Luna v. State, No. 02-17-00124-CR, 2018 WL 4140852, at *6 (Tex. App.—Fort

Worth Aug. 30, 2018, no pet.) (mem. op., not designated for publication). For the

reasons articulated above, we conclude that the jury did not act irrationally by

implicitly determining that the State’s witnesses were credible; thus, we likewise

conclude that the jury did not irrationally reject Gibson’s defensive theory that

implicated them in a scheme to frame him for the crime.11

Gibson’s alibi witness

      Finally, Gibson contends that the jury irrationally rejected the testimony of

Estrada, his former girlfriend. Estrada testified that on the morning of the arson, she

was staying with Gibson at his house, and he never left. She averred that she is a light

sleeper and explained that she would have awoken if Gibson had gotten out of bed

and had left the house. On cross-examination, Estrada conceded that she had never

contacted the police or the district attorney’s office to claim that Gibson could not

have committed the crime because he was with her that morning.




      11
        Along with asserting that Giovana’s family had a motive to frame him for
arson, Gibson contends that the State did not prove his motive for setting the fire to
the apartment. While a defendant’s motive may circumstantially support a jury’s
finding of guilt, motive is not an essential element of an offense that the State must
prove beyond a reasonable doubt. See Clayton v. State, 235 S.W.3d 772, 781 (Tex. Crim.
App. 2007); McIntare v. State, No. 02-18-00145-CR, 2018 WL 2976446, at *5 (Tex.
App.—Fort Worth June 14, 2018, no pet.) (mem. op., not designated for publication).


                                          14
       Gibson agreed with Estrada that she was staying with him on the morning of

the arson. He testified that they were sleeping in a bedroom above the garage, that the

garage door is noisy when it opens, and that opening it would have awoken someone

sleeping in that room.

       Nelson testified that he did not investigate whether Gibson had an alibi who

could attest to his whereabouts at the time of the arson. He also stated, however, that

no one ever contacted him purporting to be an alibi.

       The jury was free to accept the testimony of the State’s witnesses and reject

Gibson’s alibi defense. See Ford v. State, 509 S.W.2d 317, 318 (Tex. Crim. App. 1974)

(holding that eyewitness identification of a defendant was sufficient to support his

conviction despite alibi testimony that the jury was free to reject); Johnson v. State, 176

S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (“Although appellant

presented an alibi defense, what weight to give contradictory testimonial evidence is

within the sole province of the jury, as it turns on an evaluation of credibility and

demeanor.”). We conclude that the jury did not act irrationally by rejecting Estrada’s

alibi testimony.

Summation

       For all of these reasons, we conclude that the jury could have rationally relied

on the testimony of the State’s witnesses, including Mariana, Marcy, and Stephanie, to

find that Gibson was the arsonist, and the jury could have reasonably rejected

Gibson’s defensive theories. Viewing all of the evidence in the light most favorable to

                                            15
the verdict and deferring to the jury’s implicit resolution of conflicting evidence in

favor of Gibson’s guilt, we conclude that a rational factfinder could have found

beyond a reasonable doubt that Gibson committed arson of a habitation. See Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622. We therefore hold that

the evidence is sufficient to support his conviction, and we overrule his only point.

                                      Conclusion

      Having overruled Gibson’s only point, we affirm the trial court’s judgment.

                                                      /s/ Wade Birdwell

                                                      Wade Birdwell
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 28, 2019




                                           16
