Opinion filed April 19, 2012




                                             In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-11-00253-CV
                                        __________

                     IN THE MATTER OF L.J.S., A JUVENILE



                               On Appeal from the Juvenile Court

                                    Callahan County, Texas

                                  Trial Court Cause No. 114-J


                               MEMORANDUM OPINION

       The State alleged that L.J.S., a juvenile, engaged in delinquent conduct by committing the
offense of arson. TEX. PENAL CODE ANN. § 28.02(a) (West 2011). L.J.S. and another defendant,
R.D.H., were tried together in a bench trial where both pleaded not true to the allegations. The
trial court found the allegation of arson to be true and adjudged L.J.S. guilty of engaging in
delinquent conduct. L.J.S. was placed on probation for nine to twenty-four months. L.J.S.
contends that the evidence is insufficient to prove that he acted with the intent to commit arson.
We affirm.
                                        Background Facts
       On July 23, 2010, a fire occurred at 101 South Avenue A in Cross Plains that resulted in
the total loss of the residence. John Kondratick, a Texas State Fire Marshal’s Office investigator,
investigated the scene the following day and found that the fire had started in a closet within the
residence. Kondratick testified that he was able to eliminate any accidental ignition sources in
the closet. The police received tips from several other juveniles that implicated L.J.S. and
codefendant R.D.H.
       One of those tips came from Kevin James Baker, who testified at trial. On the night of
the fire, Baker and several other boys were hanging out and playing games at one of the boys’
homes. Baker testified that, at some point, L.J.S. and R.D.H. arrived and walked the others
down the street to show them the burning house. Smoke was visibly coming from the house at
that point. Baker testified that L.J.S. and R.D.H. said something about starting the fire in a closet
and trying to put it out with hand sanitizer.
       On July 30, 2010, Baker gave a statement to the Cross Plains police in which he stated
that both L.J.S. and R.D.H. talked about starting the fire in a closet and trying to put it out with
hand sanitizer and that, after hearing fire truck sirens, both said, “[T]hat’s the house that we
started the fire in.” The State also introduced a statement taken from R.A. who had been
subpoenaed as a witness but had failed to appear at court. R.A.’s statement echoed Baker’s
testimony; it provided, “They said they had started the fire in the big house by accident and tried
to put it out with hand sanitizer but it ignited and became out of control.”
       On the night of the fire, Police Chief Don Gosnell received information that L.J.S. and
R.D.H. had told several people that they had started the fire. This tip led him to the residence
where Baker and the other boys were playing, and he collected written statements from five
boys. All of the statements were consistent in implicating L.J.S. and R.D.H. in starting the fire.
All of the statements were consistent in stating that L.J.S. and R.D.H. said they had accidentally
started the fire in the closet and tried to put it out with hand sanitizer and that caused the fire to
grow out of control. Chief Gosnell spoke to L.J.S. and R.D.H.; they admitted telling the other
boys that they had started the fire, but maintained that they only made up the story to impress the
older boys.
                                          Legal Sufficiency
       In his sole point of error, L.J.S. contends that the evidence was both legally and factually
insufficient to support his adjudication for engaging in delinquent conduct by committing the
offense of arson. Specifically, L.J.S. argues that the evidence was not legally sufficient to prove
he had the requisite intent to damage or destroy a habitation. The standard of review for claims

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that the evidence is insufficient to support findings that a child has engaged in delinquent
conduct is the same as in criminal cases. In re A.O., 342 S.W.3d 236 (Tex. App.—Amarillo
2011, pet. filed); In re M.L.C, No. 11-09-00081-CV, 2011 WL 322448, at *1 (Tex. App.—
Eastland Jan. 27, 2011, no pet.) (mem. op.); In re M.C.S., Jr., 327 S.W.3d 802, 805 (Tex. App.—
Fort Worth 2010, no pet.). The Court of Criminal Appeals in Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010), abandoned the factual sufficiency standard, and we need only
consider the sufficiency of the evidence under the legal sufficiency standard set forth in
Jackson v. Virginia, 443 U.S. 307, 319 (1979). See In re M.C.S., 327 S.W.3d at 805 (applying
Brooks to a juvenile proceeding); see also In re M.L.C., 2011 WL 322448, at *1 (citing M.C.S.
and applying only the standard applicable to questions of legal sufficiency).
                                       Standard of Review
       In conducting a sufficiency review, we view all of the evidence in the light most
favorable to the verdict and determine whether a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Brooks, 323 S.W.3d at 899; Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); see In
re M.D.T., 153 S.W.3d 285, 287 (Tex. App.—El Paso 2004, no pet.) (“When reviewing
challenges to the legal sufficiency of the evidence to establish the elements of the penal offense
that forms the basis of the finding that the juvenile engaged in delinquent conduct, we apply the
standard set forth in Jackson v. Virginia.”).   We consider whether the trier of fact reached a
rational decision. Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.—Houston [14th Dist.] 2000,
pet. ref’d). The factfinder is the sole judge of the weight and credibility of the evidence. Brown
v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008).
       Proof of a culpable mental state almost invariably depends upon circumstantial evidence
and may be inferred from any facts tending to prove its existence, including the acts, words, and
conduct of the accused. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). However, 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) (citing Miller v. State, 566 S.W.2d 614 (Tex. Crim
App. 1978)).
       There was evidence that L.J.S. told the other boys that he had started the fire by accident.
However, there were no possible accidental sources found by the fire investigator. The fire was
started in an empty house that had been standing vacant long enough to attract trespassers. After

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the fire started, L.J.S. did not call 9-1-1 or otherwise report the fire. L.J.S. did not go next door
to ask for help. Rather, he went to a friend’s house where he did not ask for a phone to call 9-1-1
but, instead, showed the other boys what he had done. L.J.S. did not come forward; the police
had to conduct an investigation to determine his involvement. All of the foregoing facts tend to
contradict the supposition that L.J.S. did not intend to damage the habitation. See In re H.A.G.,
No. 13-07-00677-CV, 2008 WL 2154095, at *3 (Tex. App.—Corpus Christi May 22, 2008, no
pet.) (mem. op.) (Intent to damage or destroy school by arson was inferred, in part, because
juvenile started fire in an empty bathroom, approximately ten minutes before the school day
ended, juvenile did not report the fire when it was started, and the principal had to conduct an
investigation to determine who was in the restroom at the time the fire started.).
         Viewing the evidence in the light most favorable to the verdict, we conclude that a
rational trier of fact could have found beyond a reasonable doubt that L.J.S. had the specific
intent to damage or destroy the house when he started the fire. We overrule L.J.S.’s sole point of
error.
                                         This Court’s Ruling
         The judgment of the trial court is affirmed.




                                                               TERRY McCALL
                                                               JUSTICE


April 19, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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