Baugh v. State, 405-87

• Decision Date: 13 September 1989
• Docket Number: No. 405-87,405-87
• Citation: 776 S.W.2d 583
• Parties: Henry BAUGH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 583

776 S.W.2d 583

Henry BAUGH, Appellant, v. The STATE of Texas, Appellee.

No. 405-87.

Court of Criminal Appeals of Texas En Banc.

Sept. 13, 1989.

Walter C. Prentice (on appeal only), Austin, for appellant.

Charles B. Lance, Dist. Atty., Cameron (Gerald M. Brown, Temple, of counsel), Robert Huttash, State's Atty., Austin, for the State.

Before McCORMICK, P.J., and W.C. DAVIS and BERCHELMANN, JJ.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant was convicted by a jury of the offense of arson. V.T.C.A., Penal Code § 28.02(a). ¹ The trial court imposed a probated sentence of ten years. The Austin Court of Appeals affirmed appellant's conviction in a published opinion. Baugh v. State, 725 S.W.2d 450 (Tex.App.--Austin, 1987). The lower court held that a reasonable jury could have concluded appellant was responsible for the fire, therefore the evidence was sufficient to support Henry Baugh's conviction for arson.

Appellant asserts that the Court of Appeals erred in holding the evidence sufficient to prove the guilt of appellant of arson as alleged in the indictment. We agree with appellant and will reverse the judgment of the Court of Appeals. A brief recitation of the pertinent facts is necessary.

On August 3, 1984, at approximately 11:00 p.m., appellant's home in rural Milam County was completely destroyed by fire. The home was insured by Member's Insurance Company in Dallas. Through his insurance, appellant received $65,000 for loss of the dwelling and $3,500 as an additional living expense while rebuilding the home and $2,500 for unscheduled personal property lost in the fire.

There were no witnesses to the ignition of the fire. The evidence presented at trial as to the ignition of the fire was circumstantial. There was conflicting expert testimony whether the fire was of incendiary origin. The evidence linking appellant to the act of setting the fire was wholly circumstantial.

The direct evidence of the fire's incendiary origin came from the State's chief witness, Charles Ray Killingsworth, Deputy State Fire Marshall. In Killingsworth's professional opinion, the cause of the fire was incendiary, that is, arson by using a flammable liquid. Killingsworth based this opinion on the spaulding marks left on the concrete of the front porch and steps. He explained that "spaulding marks is a term used to describe what a flammable liquid does to concrete slabs such as a patio or steps." Once it has been applied and even set for a few seconds, "a certain amount of the liquid penetrates into the pores of the concrete and then once fire gets to it, it heats so rapidly that it actually blows this top layer of concrete away leaving the open concrete or raw concrete under the finished surface."

The chief expert witness for the defense had a different opinion from Killingsworth. William Coltharp, President of Coltharp Engineering Associates, testified that in his professional opinion, the fire was of undetermined origin, probably accidental. He explained that there was not enough evidence to determine the exact cause of the fire. He disagreed with Killingsworth as to the spaulding marks. As a result of his testing, Coltharp believed that the spaulding marks were not caused by pouring gasoline on the porch steps. He explained that gasoline was stored on the back porch and became involved in the fire.

The evidence regarding appellant's involvement in the fire was wholly circumstantial. The evening of the fire, Mrs. Baugh and her children were at a fashion show and stopped to eat on their way home. They arrived at approximately 11:00 p.m. when the home was engulfed in flames. Appellant was asleep in a trailer approximately one half mile from the home. Appellant explained he frequently slept in the trailer because it was air conditioned and the house was not.

Appellant asserts that the Court of Appeals erred in finding the evidence sufficient to prove his guilt. We agree.

The standard used in reviewing the sufficiency of the evidence is viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983) (op. on reh.)

In Carlsen, supra, this Court stated:

Still, we are unable to devise or discover any reason, compelling or otherwise, for abandoning the utilitarian 'exclusion of outstanding reasonable hypotheses' analysis for applying the above 'standard for review' in circumstantial evidence cases. By the nature of circumstantial evidence, in order to determine it rationally establishes guilt beyond a reasonable doubt, a process of elimination must be used ... [I]n actually assessing the evidence, no method other than a process of eliminating the guilt of others under the evidence could be fashioned to effectively conclude the evidence rationally established [the appellant's] guilt beyond a reasonable doubt. (citations omitted) Stated in the converse, if the evidence supports an inference other that the guilt of the appellant, a finding of guilty beyond a reasonable doubt is not a rational finding. (emphasis added)

Id. at 449.

A case with strikingly similar facts to the instant case is O'Keefe v. State, 687 S.W.2d 345 (Tex.Cr.App.1985). In the O'Keefe case, this Court reversed two arson convictions finding the evidence insufficient to support the conviction. There, the expert testimony was conflicting as to the use of gasoline as an accelerant. Other expert testimony showed the cause of the fire was either due to a natural gas leak or a cigarette igniting papers and spreading to a plastic container of gasoline that had been left in the house.

We found in O'Keefe, supra, the State did not negate every reasonable hypothesis as to the cause of the fire. We stated that "[t]he mere fact that it was appellant's residence and he was seen leaving the scene shortly before the fire was discovered is not sufficient to show that he set the fire." Id., 687 S.W.2d at 349.

In the instant case, there is likewise conflicting testimony as to whether the fire was of incendiary origin. Killingsworth opined that the fire was of incendiary origin and appeared to be intentionally set with the use of an accelerant. Coltharp, however, opined that...