Carl Clifford Davis v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-011-CR CARL CLIFFORD DAVIS, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT NO. CR-91-207, HONORABLE FRED A. MOORE, JUDGE PRESIDING PER CURIAM A four-paragraph indictment alleged that appellant, acting with Cynthia Davis, Gregory Valadez, and Jerry Villarreal, started a fire with intent to destroy a habitation, knowing the habitation was located on property belonging to another and within the limits of an incorporated city and was insured against damage and destruction, thereby recklessly endangering the life of another person. Tex. Penal Code Ann. § 28.02(a)(2)(A), (B), (D), (F) (West Supp. 1994). The indictment further alleged that this offense resulted in bodily injury to another person. Id. § 28.02(d). A jury returned a general verdict of guilty and the district court assessed punishment at imprisonment for five years, probated. On the night of April 9, 1991, San Marcos fire fighters were called to a house fire at 1010 Sycamore in that city. One of them, John Banning, suffered burns to his ears while fighting the blaze. (1) Nancy Wilson, who lived in the house next door, testified that she heard a "boom" and when she looked out the window, "flames were leaping out from that house next door towards mine." Wilson fled from her house, which was damaged as a result of the heat from the neighboring fire. (2) The burned house was a rental unit and unoccupied at the time of the fire. Title to the house was in the name of Cynthia Davis, appellant's wife, but there is testimony that appellant claimed a community interest. The house was insured for $42,900, with an additional $2000 of contents coverage. Because of the strong odor of gasoline present in the house, arson was immediately suspected. Investigators later established that gasoline had been poured throughout the house and ignited. Witnesses reported seeing a Hispanic man running from the scene of the fire toward a nearby fast-food restaurant. Gregory Valadez and Jerry Villarreal were ultimately arrested, charged with the arson at 1010 Sycamore, and convicted on their pleas of no contest. Valadez testified for the State at appellant's trial pursuant to his plea bargain agreement. Valadez testified that in late March or early April 1991, appellant, with whom he worked at Aquarena Springs, offered him $1000 to burn the house at 1010 Sycamore. Cynthia Davis was present when this offer was made and told Valadez, "Burn it, burn it, burn it." Valadez agreed to burn the house and enlisted the aid of his friend Villarreal. Using a key given to Valadez by appellant, the two men entered the house on April 9 and poured eight gallons of gasoline throughout the building. Valadez then drove to the fast-food restaurant to await Villarreal, who remained behind to ignite the fire. The day after the fire, Cynthia Davis and appellant met Valadez at Aquarena Springs. Cynthia took $250 from her purse and gave it to appellant, who in turn handed it to Valadez. On the afternoon of April 11, the Davises drove to Valadez's house and paid him an additional $500. (3) In his first point of error, appellant contends the evidence is insufficient to sustain the conviction because the State did not adequately corroborate Valadez's testimony. A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence tending to connect the defendant with the offense, and the corroboration is not sufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (West 1979). To test the sufficiency of the corroborating evidence, the reviewing court must eliminate from consideration the accomplice's testimony and examine the remaining evidence to determine if it is incriminating. Edwards v. State, 427 S.W.2d 629, 632 (Tex. Crim. App. 1968); Sonenschein v. State, 722 S.W.2d 450, 451 (Tex. App.--Austin 1986, pet. ref'd). Evidence of motive is not alone sufficient to corroborate an accomplice witness, but may be considered together with other evidence tending to connect the defendant to the crime. Paulus v. State, 633 S.W.2d 827, 846 (Tex. Crim. App. 1981) (dissenting opinion adopted on motion for rehearing). On March 8, 1991, appellant and his wife signed a contract to purchase a retail business in Wimberley. The Davises sought to borrow the $30,000 purchase money from banks in Wimberley and San Marcos. Both banks refused to loan the money, the last refusal coming on April 2. Thus, the State demonstrated that appellant needed a large sum of money and that his hope of borrowing the money was dashed just one week before the fire. Emma Griffin, a claims adjuster for the Davises' property insurer, testified that she had an appointment to meet appellant at 1010 Sycamore on the morning of April 9 to examine water damage for which a claim had been filed. Appellant failed to keep the appointment. After Griffin returned to her office, she called Cynthia Davis and suggested that the inspection take place the following morning. Davis insisted, however, that the inspection take place that afternoon. The jury could infer from this that Cynthia Davis had foreknowledge of the fire planned for the night of April 9. San Marcos fire marshall Kenneth Bell was one of the persons who investigated this offense. He questioned appellant and Cynthia Davis at the police department on the afternoon of April 11. Bell told the Davises that Valadez was a suspect and asked them not to talk to or contact him. After his meeting with the Davises, Bell and another investigator drove to Valadez's house, where they found appellant and Cynthia Davis conversing with Valadez in the front yard. Bell saw appellant shake Valadez's hand. Appellant appeared to be shocked by the arrival of the investigators. The presence of the defendant with the accomplice witness shortly after the crime is not alone sufficient to corroborate the accomplice's testimony, but may be sufficient when coupled with other circumstances. Paulus, 633 S.W.2d at 846. In this cause, the circumstances demonstrate that the Davises drove to Valadez's house immediately after their interview with Bell and despite Bell's request that they avoid Valadez, and suggest their guilty involvement in the arson. The officers who investigated the fire found no evidence of a forced entry into the house. Appellant told Bell on April 11 that he left the house locked on April 9 and that all of the keys to the house were in his possession. When later interviewed by Kelly Brent, a claims supervisor for the insurance company, appellant stated that he did not know the whereabouts of all the keys to the house. Seemingly innocuous facts become significant when considered in the context of the April 9 arson. For example, the insurance policy on the house at 1010 Sycamore was due to expire on April 15. On April 10, the day after the fire, the Davises' Wimberley bank account was debited for the cost of a $1000 money order purchased by appellant. The same day, appellant deposited a $1000 money order into the couple's San Marcos bank account, less $300 cash. The next day, appellant wrote a check on the Wimberley account for $500 cash. To be sufficient, the corroborating evidence need only tend to connect the defendant to the offense charged, and need not establish his guilt or even directly connect him to the crime. Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992); Paulus, 633 S.W.2d at 844. We hold that the corroborating evidence in this cause does more than merely raise a strong suspicion of appellant's guilt, but instead tends to connect him to the offense in the manner required by article 38.14. See and compare Umstead v. State, 435 S.W.2d 156 (Tex. Crim. App. 1968) (arson; corroborating evidence insufficient) with Hill v. State, 644 S.W.2d 849 (Tex. App.--Amarillo 1982, no pet.) (arson; corroborating evidence sufficient). Point of error one is overruled. Appellant's second point of error asserts that the State failed to prove the house at 1010 Sycamore was a habitation as alleged in the indictment. A "habitation" is a structure that is adapted for the overnight accommodation of persons. Tex. Penal Code Ann. § 28.01(1) (West 1989). Whether a structure is adapted for the overnight accommodation of persons is a question for the trier of fact, and its determination that the premises was a habitation may be overturned on appeal only if it is shown that no reasonable trier of fact could have reached that conclusion from the evidence presented. Blankenship v. State, 780 S.W.2d 198, 209-10 (Tex. Crim. App. 1989) (opinion on motion for rehearing). The structure at 1010 Sycamore was a three-bedroom, one-bath house with a living room and kitchen. Appellant argues that the house was not adapted for the overnight accommodation of persons at the time of the fire because it was unoccupied and both electric and gas utilities were disconnected. Nancy Griffin testified, however, that she and her family lived in the house for two years, moving next door only a few weeks before the fire. On the day of the fire, appellant showed the house to prospective renters who planned to move in the following weekend. Photographs of the house taken before the fire reveal that it was in need of repair, but there are no obvious defects that would render it unfit for habitation. The evidence supporting the verdict in this cause is much stronger than the evidence deemed sufficient in Blankenship. We hold that the evidence supports the conclusion that the burned structure was a habitation and overrule point of error two. The judgment of conviction is affirmed. Before Chief Justice Carroll, Justices Kidd and B. A. Smith Affirmed Filed: April 6, 1994 Do Not Publish 1. This was the injury to another person alleged in the indictment. 2. Wilson was the person alleged to have been recklessly endangered by the fire. 3. This paragraph is a summary of Valadez's testimony. All other facts stated in this opinion are taken from the testimony of other, nonaccomplice witnesses.