                            NUMBER 13-07-00505-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ISRAEL YBARRA,                                                                Appellant,

                                             v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 36th District Court
                         of Aransas County, Texas.


                          MEMORANDUM OPINION

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

       A jury convicted appellant Israel Ybarra of arson, and the trial court sentenced him

to twenty years' confinement. See TEX . PENAL CODE ANN . § 28.02 (Vernon Supp. 2008).

By three issues, Ybarra contends: (1) the trial court violated his due process rights by

denying his request for a jury trial to determine his competency; (2) the jury's rejection of
his insanity defense was against the great weight and preponderance of the evidence; and

(3) the evidence was legally and factually insufficient to support his conviction. We affirm.

                                      I. BACKGROUND

       On or about the night of June 29, 2006, Ybarra set fire to a couch cushion in his

trailer. The trailer caught on fire, and residents of the trailer park called 9-1-1 to notify the

fire department and police. When the first police officer arrived, he found the trailer

engulfed in flames and Ybarra coughing on his hands and knees in front of the burning

trailer. Ybarra provided several different stories to police regarding the fire, including that

a gang had started the fire in retaliation against Ybarra and that Ybarra himself had started

the fire to kill himself because he believed his wife and children had left him.

       On October 26, 2006, Ybarra was indicted for arson, specifically that "with intent to

damage or destroy a habitation" Ybarra "start[ed] a fire, or cause[d] an explosion, by

igniting a fire on a [couch] cushion . . . knowing that said habitation was within the limits of

an incorporated city or town, namely, the city of Rockport, Texas."                  See id. §

28.02(a)(2)(A). Ybarra filed pretrial motions, including, among others, a motion suggesting

incompetency and request for examination, in which Ybarra asked the court to appoint a

disinterested expert to explore the issue of incompetency. See TEX . CODE CRIM . PROC .

ANN . art. 46B.021(a)(1) (Vernon 2006). In an affidavit in support of his suggestion of

incompetency, counsel for Ybarra stated that Ybarra is mentally disabled, "has a long

history of suicidal [sic] attempts," has problems with comprehension, reasoning, and

judgment, and was not able to communicate effectively with counsel concerning any

possible defenses.



                                               2
         On December 28, 2006, the trial court held a pretrial hearing on Ybarra's request

for examination. At the pretrial hearing, Ybarra's wife, Christina Diaz Ybarra, testified that

she had known Ybarra for twenty-one years and that he had been under psychiatric care

and receiving Social Security benefits since he was seventeen. According to his wife,

Ybarra has the mind of an eight-year-old, is bipolar and schizophrenic, and suffers from

depression. The trial court granted Ybarra's request for an examination on the issue of

competency and appointed Burton A. Kittay, Ph.D., to conduct the examination.

         Dr. Kittay interviewed Ybarra and performed various psychological tests. Dr. Kittay

also spoke with the guards and nurses at the jail where Ybarra was being held. In his

report to the court, Dr. Kittay observed that, although Ybarra claimed he did not understand

why he was in jail, he expressed remorse over his actions and stated he knew he was

arrested for arson.     Dr. Kittay also found that Ybarra had the ability to effectively

communicate with his attorney and understand the adversarial nature of the proceedings

against him but chose not to do so. Dr. Kittay believed that Ybarra was being purposefully

uncooperative and attempting to manage the information he gave to Dr. Kittay to show he

was incompetent. In his report, Dr. Kittay concluded that Ybarra was competent to stand

trial.

         On February 20, 2007, the trial court appointed Christopher L. Klass, Ph.D., to

conduct a second examination of Ybarra. The trial court's basis for ordering the second

examination is not apparent from the record. Dr. Klass interviewed Ybarra and conducted

various psychological tests. In his report, Dr. Klass noted that Ybarra had substance-

induced major depressive disorder. However, Dr. Klass found that Ybarra had the

presence of mind to assist his attorney and could rationally understand the charges,

                                              3
potential consequences, and adversarial nature of the proceedings. Dr. Klass concluded

that Ybarra was competent to stand trial. Dr. Klass then proceeded to conclude that

Ybarra was legally insane; he determined that Ybarra's mental state was compromised by

his psychiatric disorder such that he did not know his conduct was wrong at the time of the

fire.

        At the announcement docket on March 15, 2007, the State requested a psychiatric

examination on the issue of insanity. The trial court appointed Joel Kutnick, M.D., to

conduct a mental examination of Ybarra.                     As the basis of his report, Dr. Kutnick:

interviewed Ybarra; reviewed the evaluations conducted by Dr. Kittay and Dr. Klass;

reviewed police offense reports, witness statements, and Ybarra's voluntary statement; and

discussed the case with the assistant district attorney. In his report, Dr. Kutnick observed

that Ybarra changed his story at least twice regarding how and why the trailer was burned

down. Dr. Kutnick found that Ybarra potentially suffered from several different mental

disorders, including substance dependence, schizoaffective disorder, antisocial personality

disorder, and malingering.1 Dr. Kutnick believed that Ybarra's mental processes were

logical and goal-directed, that he was oriented to person, place, and time, and that he was

able to communicate well. Dr. Kutnick concluded that, even if Ybarra experienced the

hallucinations and other delusions he claimed, he nonetheless understood that setting fire

to the trailer was against the law. Dr. Kutnick further concluded that Ybarra had no mental

disease or defect that rendered him incapable of knowing his conduct was wrong.


        1
            Malingering is defined as "pretend[ing] or exaggerat[ing] incapacity or illness so as to avoid duty or
work." Medline Plus, http://www2.m erriam -webster.com /cgi-bin/m wm ednlm ?book=Medical&va=m alingering
(last visited July 24, 2009).



                                                        4
       At an announcement docket on April 24, 2007, Ybarra's counsel requested a trial

by jury on the issue of competency. The trial court asked counsel to provide evidence

supporting Ybarra's request. Counsel replied that, after talking to Ybarra on at least two

or three occasions, she had concluded that he could not "help [counsel] with any of the

facts or anything, any of the events that happened on the day of the incident of arson."

Counsel stated, "I just feel that he is not being [sic] able to assist me in any way in trying

to build up a defense to the charge."        The trial court concluded that the issue of

incompetence had been resolved stating, "I don't think there is an issue of incompetency."

The trial court denied Ybarra's request.

       When Ybarra's case was called for trial on July 16, 2007, trial counsel objected that

Ybarra was not able to assist her in preparation of his case. Trial counsel stated that she

believed that Ybarra was not competent to stand trial. Although acknowledging that none

of the experts that examined Ybarra had the professional opinion that he was incompetent

to stand trial, trial counsel asserted that, based on her personal assessment, Ybarra was

incompetent "due to the fact he's not assisting me in any way." After questioning Ybarra

about his background and the case against him, the trial court denied counsel's request

for a trial on the issue of competency. After a two-day trial, the jury found Ybarra guilty of

arson, and the trial court sentenced him to 20 years' confinement. This appeal ensued.

                                     II. DISCUSSION

       Ybarra disputes his conviction by three issues. First, Ybarra argues his due process

rights were violated when the trial court refused to hold a jury trial on the issue of his

competency. Second, Ybarra contends that the evidence was factually insufficient to



                                              5
support the jury's rejection of his insanity affirmative defense. Finally, Ybarra challenges

the evidence of his arson conviction as both legally and factually insufficient.

                                       A. Competency

        By his first issue, Ybarra contends that the trial court denied him due process by

refusing to order a jury trial on the issue of his competence to stand trial.

1. Standard of Review and Applicable Law

        A trial court's failure to conduct a competency hearing or inquiry is reviewed under

an abuse of discretion standard. Salahud-Din v. State, 206 S.W.3d 203, 207 (Tex.

App.–Corpus Christi 2006, pet. ref'd) (citing Moore v. State, 999 S.W.2d 385, 393 (Tex.

Crim. App. 1999)). We will find an abuse of discretion if the trial court's decision is arbitrary

or unreasonable. Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.–Fort Worth 2005,

pet. ref'd).

        "The conviction of an accused person while he is legally incompetent violates due

process." Salahud-Din, 206 S.W.3d at 207. Under the Texas Code of Criminal Procedure,

"[a] person is incompetent to stand trial if the person does not have: (1) sufficient present

ability to consult with the person's lawyer with a reasonable degree of rational

understanding; or (2) a rational as well as factual understanding of the proceedings against

the person." TEX . CODE CRIM . PROC . ANN . art. 46B.003(a) (Vernon 2006). A defendant is

presumed competent, and the trial court shall find him competent, unless he is proved

incompetent by a preponderance of the evidence. Id. art. 46B.003(b).

        "Either party may suggest by motion . . . that the defendant" may not be competent

to stand trial. TEX . CODE CRIM . PROC . ANN . art. 46B.004(a) (Vernon 2006). Upon such a



                                               6
suggestion, "the court may appoint one or more disinterested experts to . . . examine the

defendant and report to the court on the competency or incompetency of the defendant .

. . ." TEX . CODE CRIM . PROC . ANN . art. 46B.021(a)(1). If the evidence presented raises a

bona fide doubt as to the defendant's competency, the trial court shall "determine by

informal inquiry whether there is some evidence from any source that would support a

finding that the defendant may be incompetent . . . ." TEX . CODE CRIM . PROC . ANN . art.

46B.004(d); Salahud-Din, 206 S.W.3d at 208. If the informal inquiry uncovers evidence

"to support a finding of incompetency, the court shall order an examination . . . to

determine whether the defendant is incompetent to stand trial in a criminal case." TEX .

CODE CRIM . PROC . ANN . art. 46B.005(a) (Vernon 2006). Furthermore, generally, if the trial

court determines that some evidence exists to support a finding of incompetency, the court

shall order a trial to determine competency, and if any party so requests, a jury shall make

the determination as to whether the defendant is incompetent. TEX . CODE CRIM . PROC .

ANN . arts. 46B.005(b), 46B.051 (Vernon 2006).

       To determine whether the evidence requires a hearing on incompetency, the trial

court shall "consider only the evidence tending to show incompetency" to determine

whether "there is some evidence, a quantity more than none or a scintilla, that rationally

could lead to a determination of incompetency." Moore, 999 S.W.2d at 393; see also

Hartfield v. State, No. 2-7-454-CR, 2008 WL 5401491, at *1-2 (Tex. App.–Fort Worth Dec.

23, 2008, pet. ref'd) (mem. op.) (applying the evidentiary standard from Moore in

determining whether the trial court erred in refusing to hold a formal hearing on the

defendant's competency pursuant to code of criminal procedure articles 46B.005(b) and



                                             7
46B.051). Moreover, to present some evidence of his incompetency, the defendant must

show that his past mental illnesses "somehow interfered with his present ability to

communicate with his attorney or with his understanding of the proceedings against him."

Baldwin v. State, 227 S.W.3d 251, 253 (Tex. App.–San Antonio 2007, no pet.) (citing TEX .

CODE CRIM . PROC . ANN . art. 46B.003(a)).

2. Analysis

         We are not being asked to determine whether there should have been a bona fide

doubt in the trial judge's mind regarding Ybarra's competency to stand trial, which is the

evidentiary requirement that must be met to compel an informal inquiry. See TEX . CODE

CRIM . PROC . ANN . art. 46B.004(d); Salahud-Din, 206 S.W.3d at 208. Rather, it is clear

from the record that at the December 28, 2006 pretrial hearing, the court commenced its

informal inquiry. The court heard both argument from counsel and testimony from Ybarra's

wife describing his long history of mental illness. At the conclusion of the December 28

hearing, the trial court granted Ybarra's request to appoint a disinterested expert to conduct

a psychological examination of Ybarra.2                       See TEX . CODE CRIM . PROC . ANN . art.


         2
             The record does not dem onstrate that the trial judge m ade a "determ ination that evidence existed
to support a finding of incom petency" at the Decem ber 28, 2008 pretrial hearing. See T EX . C OD E C R IM . P R O C .
A N N . art. 46B.005(a). The m ere fact that the trial court granted Ybarra's request for an incom petency
exam ination does not constitute evidence sufficient to raise the issue of incom petency. See Rodriguez v.
State, 816 S.W .2d 493, 495 (Tex. App.–W aco 1991, pet. ref'd); see also Hartfield v. State, No. 2-7-454-CR,
2008 W L 5401491, at *2 n.5 (Tex. App.–Fort W orth Dec. 23, 2008, pet. ref'd) (m em . op.) (noting that the trial
court's ordering of an exam ination is not evidence, in itself, of a defendant's incom petency, in response to
argum ent by the appellant that, because the trial court granted his m otion and ordered an exam ination, an
inference could be m ade that the trial court had m ade a determ ination that there was evidence to support a
finding of incom petency); see, e.g., Salahud-Din v. State, 206 S.W .3d 203, 208 (Tex. App.–Corpus Christi
2006, pet. ref'd) (concluding that, even in light of three pretrial psychological exam inations ordered by the trial
court, the defendant had not presented sufficient evidence to com pel a hearing on incom petency). After
ordering the exam ination, the trial court was still required to determ ine whether there was som e evidence to
support a finding of incom petency before holding a form al hearing on the issue. See LaHood v. State, 171
S.W .3d 613, 618 (Tex. App.–Houston [14th Dist.] 2005, pet. ref'd).



                                                          8
46B.021(a)(1). The court appointed Dr. Kittay. For reasons unclear in the record, the court

appointed a second expert, Dr. Klass, at the February 20, 2007 pretrial hearing. The

reports of both experts concluded that Ybarra was competent to stand trial. Dr. Kittay, in

particular, noted that Ybarra had the ability to communicate with his attorney and

understand the proceedings but chose not to do so.

       The trial court twice determined, during its informal inquiry, that Ybarra's

competence was not at issue. See id. art. 46B.005; see also Hartfield, 2008 WL 5401491,

at *1-2 (holding that a court need not hold a formal hearing on incompetency unless there

exists some evidence to raise the issue). Both at the April 24, 2007 announcement docket

and at the beginning of trial on July 16, 2007, Ybarra requested a jury trial on his

competence to stand trial, and the trial court then made its determination that there was

no issue of incompetency in the case. The court noted that none of the examination

reports determined Ybarra was incompetent.         The only evidence "tending to show

incompetency" presented to the court were statements by Ybarra's counsel that Ybarra

was unable to assist her in the preparation of his case. See Moore, 999 S.W.2d at 393

(requiring that the court consider only evidence showing the defendant's incompetence in

determining whether there should be a hearing on the issue). "It is not enough . . . for

counsel to allege unspecified difficulties in communicating with the defendant. . . . [S]uch

information must be specific and illustrative of a present inability to communicate with the

defendant." See id. at 394; Baldwin, 227 S.W.3d at 253 ("A statement that a defendant

is or may be incompetent is not by itself sufficient" evidence to support a determination

of incompetency).



                                             9
       We conclude that the trial court did not abuse its discretion in failing to conduct a

formal hearing or jury trial on the matter of Ybarra's competence because the court's

informal inquiry did not reveal evidence "that rationally could lead to a determination of

incompetency." See Moore, 999 S.W.2d at 393. Neither did Ybarra's evidence link his

past mental health issues with his present inability to communicate with his counsel or

understand the proceedings against him. See Baldwin, 227 S.W.3d at 253. In light of the

evidence presented, the trial court's decision was neither unreasonable nor arbitrary. See

Lawrence, 169 S.W.3d at 322. Ybarra's first issue is overruled.

                                         B. Insanity

       By his second issue, Ybarra contends that the evidence was factually insufficient

to support the jury's rejection of his affirmative defense of insanity.

1. Standard of Review and Applicable Law

       When a defendant challenges on appeal the factual sufficiency of the evidence

supporting the jury's rejection of his insanity affirmative defense, we will consider all the

evidence relevant to the affirmative defense of insanity in a neutral light to determine

whether the jury's decision was so against the great weight and preponderance of the

evidence as to be manifestly unjust. Bigby v. State, 892 S.W.2d 864, 875 (Tex. Crim. App.

1994) (en banc); Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990); see also

Lopez v. State, No. 13-05-148-CR, 2007 WL 2471396, at *1 (Tex. App.–Corpus Christi

Aug. 31, 2007, pet. ref'd) (mem. op.).        An appellate court will overturn the jury's

determination on insanity only when the issue is "undisputed or resolved to one end of the




                                             10
spectrum outside the realm of discretion." Reyna v. State, 116 S.W.3d 362, 367 (Tex.

App.–El Paso 2003, no pet.) (citing Bigby, 892 S.W.2d at 878).

       Insanity is an affirmative defense for which the defendant bears both the burden of

proof and burden of persuasion. TEX . PENAL CODE ANN . § 8.01(a) (Vernon 2003); Meraz,

785 S.W.2d at 150. The purpose of the insanity defense is to determine whether the

defendant should be held responsible for the crime or whether a mental condition excuses

the defendant from such responsibility. Graham v. State, 566 S.W.2d 941, 948 (Tex. Crim.

App. 1978). The crucial question is whether "at the time of the conduct charged, the

[defendant], as a result of severe mental disease or defect, did not know that his conduct

was wrong." TEX . PENAL CODE ANN . § 8.01(a). Although the defendant "may be medically

insane," he can nonetheless "retain criminal responsibility" if his "mental condition does not

prevent [the] defendant from distinguishing right from wrong." Reyna, 116 S.W.3d at 367

(citing Graham, 566 S.W.2d at 948).

       "Expert testimony on the issue of appellant's ability to determine right from wrong

does not establish insanity as a matter of law." Torres v. State, 976 S.W.2d 345, 347 (Tex.

App.–Corpus Christi 1998, no pet.). And while expert testimony may assist the jury in its

determination of the insanity issue, such testimony does not dictate the result. See

Graham, 566 S.W.2d at 949; Torres, 976 S.W.2d at 347. In reaching its decision on

insanity, the jury may consider circumstantial evidence such as: the defendant's demeanor

before and after the crime; the defendant's attempts to evade police or conceal

incriminating evidence; the defendant's expressions of regret, fear, or knowledge of the

consequences of his actions; and any other possible explanations for the defendant's



                                             11
behavior. See Torres, 976 S.W.2d at 347-48; Mitten v. State, 79 S.W.3d 751, 758 (Tex.

App.–Corpus Christi 2002), rev'd on other grounds, 145 S.W.3d 225 (Tex. Crim. App.

2004).

2. Analysis

         Ybarra argues that the jury's rejection of his insanity affirmative defense was

supported by factually insufficient evidence. At trial, Ybarra's neighbors testified that, on

the night of the fire, he came to their door and warned them that he was going to set fire

to his trailer. He warned them to protect their belongings because he was going to try to

kill himself by burning down his trailer. They stated that Ybarra was upset about his wife

leaving and that he told them he was going to burn down his trailer because he was

depressed and wanted to kill himself. The police, fire investigators, and other witnesses

at the scene testified that Ybarra appeared calm after the fire and was lucid in response

to their concerns and questions. After Ybarra was arrested, he expressed remorse over

the fire and insisted it was an accident.

         Dr. Kutnick, a psychiatrist appointed by the court, testified that he believed Ybarra

was exaggerating his symptoms and suspected that Ybarra's claims that he heard voices

may not have been entirely true. Dr. Murthy Mangipudi, Ybarra's doctor at Coastal Plains

MHMR, testified that Ybarra's medical records from January 2006 also indicated

malingering—in other words, that Ybarra has a history of not being truthful about his

symptoms and managing his responses to questions from doctors to avoid responsibility

and control the type of treatment he receives.




                                              12
       Dr. Kutnick noted that Ybarra had changed his story about the fire several times.

For example, Ybarra told police at one point that the fire had been started by gang

members in retaliation. Ybarra also told investigators that he heard voices telling him to

start the fire. Testimony of police officers at the scene corroborated these conflicting

accounts. Dr. Kutnick concluded that these changing stories indicated that Ybarra was

trying to make excuses and, therefore, knew his behavior was wrong. Dr. Kutnick also

concluded that, even if Ybarra did suffer from a serious mental illness, such as

schizophrenia, Ybarra nonetheless knew starting a fire in the trailer was against the law.

       At trial, the jury also considered the following evidence: testimony from family

members that Ybarra had suffered from severe mental illness, including schizophrenia and

bipolar disorder, since he was a teenager; testimony from Ybarra's wife that he had not

taken his medications for months before the fire; testimony from family members that

Ybarra was hyper and behaved erratically and unpredictably when he was not taking his

medications; testimony by Dr. Mangipudi that Ybarra would experience hyperactivity,

agitation, and exacerbated emotional reactions when he was off his medications; and

testimony by Dr. Klass, a psychologist appointed by the court, that he believed Ybarra

suffered from severe substance-induced major depressive disorder, which, at the time of

the fire, prevented him from understanding his actions were wrong. Ybarra argues that the

evidence is overwhelming that he "has suffered a severe mental disease since childhood."

He also points to the fact that, in his report, Dr. Klass "determined . . . that [a]ppellant was

insane at the time he committed the offense because his mental state was so




                                              13
compromised by his depressive disorder that he did not know that his conduct was wrong

and he was incapable of conforming his conduct to the requirements of the law."

       Based on the evidence presented, the jury could have concluded that, although

Ybarra likely suffers from mental illness, he also has a tendency to exaggerate his

symptoms to manipulate the outcome of an examination. The jury could have also

concluded that Ybarra understood his actions were wrong because: he warned his

neighbors that he was going to burn down his trailer so they could protect their belongings;

he made several different excuses to the police regarding the cause of the fire,

circumstantial evidence that Ybarra understood his conduct was wrong and was attempting

to avoid responsibility; he expressed remorse over his actions and fear that he had harmed

others; and although family members insisted he was not taking his medications and that

he acted erratically when he was off his medications, Ybarra appeared lucid to police and

witnesses at the scene of the fire. See Torres, 976 S.W.2d at 347-48 (holding that, in

making its determination on insanity, the jury can consider evidence of, among other

things, the defendant's demeanor at the time of the crime, any attempts by the defendant

to evade detection by the police, and expressions of regret, fear, or knowledge of the

consequences of his actions).

       Even if we were to assume that Ybarra is medically insane, that fact, alone, does

not prove his mental condition prevented him from knowing that burning down his trailer

was wrong. See TEX . PENAL CODE ANN . § 8.01(a); Reyna, 116 S.W.3d at 367. Moreover,

the conclusions of Dr. Klass do not dictate a finding of insanity. See Graham, 566 S.W.2d

at 949. Rather, the jury is the sole judge of the credibility of witnesses and the weight to

be given to the evidence. See TEX . CODE CRIM . PROC . ANN . art. 38.04 (Vernon 1979);


                                            14
Torres, 976 S.W.2d at 347. We will not disturb its rejection of Ybarra's insanity defense

because we presume that, in addition to Dr. Klass's report, the jury considered and

weighed all of the other evidence; we will credit the jury's factual determinations on

Ybarra's insanity affirmative defense because they were not "resolved to one end of the

spectrum outside the realm of discretion." See Reyna, 116 S.W.3d at 367 (citing Bigby,

892 S.W.2d at 878). Thus, considering all the evidence in a neutral light, we conclude that

there was factually sufficient evidence that Ybarra was sane at the time of the crime. See

TEX . PENAL CODE ANN . § 8.01(a); Bigby, 892 S.W.2d at 875. Ybarra's second issue is

overruled.

                                   C. Arson Conviction

       By his third and final issue, Ybarra charges that the evidence of his arson conviction

was both legally and factually insufficient. Specifically, Ybarra contends that the State did

not prove that Ybarra had the requisite intent to destroy a building or habitation. See TEX .

PENAL CODE ANN . § 28.02(a)(2). Ybarra also argues that the State presented no evidence

that he knew the burned trailer was within the limits of an incorporated city or town. See

id. § 28.02(a)(2)(A).

A. Standard of Review and Applicable Law

       In conducting a legal sufficiency review, we view the relevant evidence in the light

most favorable to the verdict to determine whether a rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19

(1979)); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). The trier of fact




                                             15
is the sole judge of the facts, the credibility of the witnesses, and the weight given to

testimony. See TEX . CODE CRIM . PROC . ANN . art. 38.04 (Vernon 1979); Beckham v. State,

29 S.W.3d 148, 151 (Tex. App.–Houston [14th Dist.] 2000, pet. ref'd). We do not

reevaluate the weight and credibility of the evidence, and we do not substitute our own

judgment for the trier of fact. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000)

(en banc); Beckham, 29 S.W.3d at 151. Instead, we consider whether the jury reached a

rational decision. Beckham, 29 S.W.3d at 151.

       We apply the same standard for factual sufficiency as was described previously in

the second issue. Both legal and factual sufficiency are measured by the elements of the

offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi

2002, pet. ref'd). Under a hypothetically correct jury charge, a person commits the offense

of arson if "the person starts a fire . . . with the intent to destroy or damage any building,

habitation, or vehicle . . . knowing that it is within the limits of an incorporated city or town

. . . ." See TEX . PENAL CODE ANN . § 28.02(a)(2)(A). Intent to commit arson can be proven

by circumstantial evidence and may be inferred from any facts tending to prove its

existence, such as the conduct, words, and acts of the defendant. Beltran v. State, 593

S.W.2d 688, 689 (Tex. Crim. App. 1980); see also In re H.A.G., No. 13-07-00677-CV, 2008

WL 2154095, at *2 (Tex. App.–Corpus Christi May 22, 2008, no pet.).

B. Analysis

       In addition to the testimony previously described, the jury was also presented with

the following evidence: testimony by the owner of the trailer park that Ybarra's trailer was




                                               16
compliant with electrical codes; testimony by a neighbor that Ybarra told her he was going

to burn down the trailer and that her family should protect their property; testimony from

the K-9 officer that his dog indicated the presence of accelerants in the burned trailer;

testimony by the chemist from the state fire marshal's arson lab that debris from certain

areas in the trailer tested positive for accelerants, namely gasoline; and testimony by the

deputy state fire marshal, who investigated the scene, that he believed the fire was caused

by arson.

       Ybarra argues that the evidence only shows he was trying to kill himself and,

therefore, that the evidence is insufficient to prove he had the requisite intent to destroy the

trailer. We disagree. Based on the evidence presented, the jury could have rationally

concluded that Ybarra set fire to his trailer with the intent to destroy it. He warned his

neighbors of the impending blaze and the potential risk to their property; the jury could

have inferred from this statement that Ybarra knew the fire was going to be large enough

to threaten an adjacent trailer. Knowing that the trailer was electrically up to code, the jury

could have rationally ruled out an electrical fire and suspected an intentionally-set fire. The

jury also heard evidence that an accelerant was present at the scene and that the primary

investigator believed the fire was caused by arson, i.e., that the fire was intentionally set.

Operating under the cumulative impact of this circumstantial evidence, a rational jury could

have inferred that Ybarra intended to destroy or damage his trailer by setting it on fire. See

Beltran, 593 S.W.2d at 689.

       Ybarra also contends that there was no evidence to prove that he knew the burned

trailer was within the limits of an incorporated city or town. Evidence was presented at trial



                                              17
that Ybarra signed a residential lease contract for the burned trailer and that the contract

indicated that the trailer was located at 201 West Corpus Christi Street in Rockport, Texas.

The evidence also showed that Ybarra had been living at that location for two to three

months before the fire and that Ybarra had lived in Rockport periodically over the years.

“Texas case law recognizes that when knowledge of the defendant must be established,

it can be shown by independent facts and circumstances indicative of such knowledge.”

Mouton v. State, 627 S.W.2d 765, 768 (Tex. App.– Houston [1st Dist.] 1981, no pet.). The

fact that Ybarra signed the lease, which clearly indicated the trailer was situated within

Rockport, combined with the length of Ybarra's residence in Rockport, show that Ybarra

knew the trailer, in which he had been living for at least three months, was located inside

the city limits of Rockport. See id. (concluding that the defendant knew the vehicle he set

on fire was within the city limits of Houston because he had lived in Houston when he was

a child).

       Viewing the evidence in the light most favorable to the verdict, we conclude that

there was legally sufficient evidence to support Ybarra's conviction for arson. See Hooper,

214 S.W.3d at 13. The evidence showed that he had the requisite intent to commit the

crime and the knowledge that the trailer he burned down was in the city limits of Rockport.

See TEX . PENAL CODE ANN . § 28.02(a)(2)(A). We refuse to substitute our judgment for that

of the jury and, in light of the ample evidence presented, find that the jury's decision was

rational. See Beckham, 29 S.W.3d at 151. The evidence was, moreover, factually

sufficient to support the guilty verdict. We cannot conclude that Ybarra's conviction was




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against the great weight and preponderance of the evidence such that it was manifestly

unjust. See Bigby, 892 S.W.2d at 875. Ybarra's third issue is overruled.

                                   III. CONCLUSION

       We affirm the judgment of the trial court.



                                                     NELDA V. RODRIGUEZ
                                                     Justice

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

Memorandum Opinion delivered and
filed this 24th day of August, 2009.




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