Davis v. State

• Decision Date: 16 January 1992
• Docket Number: No. 12-89-00149-CR,12-89-00149-CR
• Citation: 840 S.W.2d 480
• Parties: Tommie L. DAVIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 480

840 S.W.2d 480

Tommie L. DAVIS, Appellant, v. The STATE of Texas, Appellee.

No. 12-89-00149-CR.

Court of Appeals of Texas,

Tyler.

Jan. 16, 1992.

Opinion on Motion for Rehearing

June 22, 1992.

Discretionary Review Refused

Sept. 30, 1992.

Bill Warren, Center, for appellant.

Charles Mitchell, Dist. Atty., San Augustine, for appellee.

RAMEY, Chief Justice.

This is an appeal of a conviction for murder. TEX. PENAL CODE ANN. § 19.01(a) (Vernon 1974). Appellant Tommie Lea Davis was convicted with her mother, Faye Logan, in a consolidated trial. A jury assessed punishment at fifty years in the Texas Department of Corrections. We will affirm.

On December 18, 1986, a fire destroyed the residence of appellant Davis and her husband Kyle Davis. Kyle Davis died in the fire. The following day, Deputy Fire Marshall Donald Turk and Deputy Sheriff Bill Horton investigated the scene of the fire. From visual observations, Officer Turk believed that the fire was a result of arson. These initial conclusions were bolstered by laboratory reports indicating the presence of a flammable liquid. Later, police officers interviewed Debbie Logan, appellant Davis' sister-in-law and Faye Logan's daughter-in-law. Debbie Logan informed the police that she had overheard appellants discussing a plan to kill the decedent in a fire. The appellant was thereafter indicted for the murder of Kyle Davis.

Appellant asserts seven points of error. ¹ Appellant, by her first point of error contends that the evidence is insufficient to prove guilt as alleged in the indictment. Appellant relies upon Baugh v. State, 776 S.W.2d 583 (Tex.Cr.App.1989) and O'Keefe v. State, 687 S.W.2d 345 (Tex.Cr.App.1985), emphasizing their similarity with the instant case in that they are arson cases, founded upon circumstantial evidence, and with conflicting expert testimony concerning the origins of the respective fires.

While Baugh and O'Keefe are factually similar, they are not controlling here. Appellant places emphasis upon the fact that expert witnesses disagreed as to the origin of the fire here as well as in the cited cases. Disagreement between experts is not dispositive. The jury determines the appropriate weight to accord expert testimony. Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 (Tex. Comm'n App.1944, opinion adopted). Jurors may reject expert testimony if such testimony fails to comport with the jurors' concepts of sound logic. Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62, 64 (1945); Van Guilder v. State, 674 S.W.2d 915, 919 (Tex.App.--San Antonio 1984), aff'd, 709 S.W.2d 178 (Tex.Cr.App.1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2891, 90 L.Ed.2d 978 (1986). In choosing to disregard expert testimony, the jury is constrained only by the requirement that any action taken must be pursued in a nonarbitrary manner. Van Guilder, 674 S.W.2d at 919.

The appellant's expert investigated the scene of the fire some five months after the incident occurred. This expert testified that he believed that the fire started in the living room area of the home. The expert based his opinion upon a damaged wood-frame couch. Only one of the wooden arms of the couch was warped. Additionally, the expert noted that the fire had melted only one side of an air conditioning duct located directly under the couch. From these observations, the expert concluded that the fire was probably started by some accidental means, such as the dropping of a lit cigarette. The expert's opinion was that the fire had no incendiary origin.

The evidence was not controverted that a flammable liquid had been used to start the fire. The state contradicted appellant's expert evidence by demonstrating that at the time of its original investigation, immediately after the fire had occurred, the wood frame couch and air conditioning duct exhibited none of the damage upon which the defense expert based his opinion. The state also offered proof that the decedent's body tested at a level of drugs and alcohol so high as to deprive decedent of all motor functions, including the smoking of cigarettes. The jury chose to believe the state's proof that the fire was the result of arson. In light of the entire record, we find no arbitrary conduct in the jury's verdict.

While appellant's case has factual similarities to both O'Keefe and Baugh, it is distinguishable. In O'Keefe, the Court of Criminal Appeals overturned appellant's conviction because the state had shown merely that the property destroyed belonged to appellant and that appellant was observed leaving the scene shortly before the discovery of the fire. O'Keefe, 687 S.W.2d at 349. The Court of Criminal Appeals overturned appellant Baugh's conviction due to a lack of incriminating evidence. Baugh, 776 S.W.2d at 585. The court emphasized the lack of direct evidence that the appellant had set the fire and the absence of any witnesses to the ignition of the fire. Id. The court also stressed that the circumstantial evidence was insufficient to connect appellant to the fire. Id. Regarding the circumstantial evidence, the court noted that there had been no verbal threats by appellant to set a fire, that there were no suspicious circumstances concerning insurance coverage, and that no suspicious paraphernalia was found at the scene of the fire. Id. at 585-86.

The circumstantial evidence in this case is much stronger than in Baugh and O'Keefe. There was uncontradicted evidence that appellant induced the deceased to marry her by claiming pregnancy although she had previously undergone a complete hysterectomy, whereupon she immediately arranged to become the beneficiary of a $100,000 insurance policy on the deceased's life, his corporate stock and the profit-sharing benefits from his former employer. There, likewise, was testimony that on the evening after decedent's death, appellant was in a bar telling Kathryn Bazar that "she was coming into a sum of money, ... approximately $500,000." Mrs. Bazar, the owner of the bar, said appellant expressed no remorse over her husband's death, but rather seemed primarily interested in using her newly acquired money to buy into the witness' business, or alternatively, to open her own bar to compete with Bazar's.

The record also reflects that the night before the fire occurred, a neighbor noticed appellant and her mother removing boxes from the Davis residence. Later testimony revealed that many objects that had been in the Davis home were in Faye Logan's home. Even more damaging was the testimony of witness Brenda Turley. Mrs. Turley related the story of an incident that occurred at the funeral home after decedent's death. Mrs. Turley stated that appellant Davis was standing at the casket which contained decedent's body. Apparently unaware that she might be heard by Mrs. Turley, appellant audibly uttered the inquiry, "Why did I do it?".

Furthermore, witness Debbie Logan described a conversation which involved appellant and her mother that occurred in Faye Logan's home. Witness Logan stated that approximately one week before the fire, she overheard appellant and Faye Logan discussing how "they could use lighter fluid and it wouldn't be traced."

In addition, Deputy Bill Horton had jailed appellant and her mother in connection with the crime charged. While appellant was in jail, Deputy Horton overheard appellant and her mother discussing ways to ensure the silence of Debbie Logan as a witness in this trial. There was other evidence that revealed that witness Logan was held in a motel room against her will in an effort to prevent her from testifying against appellant. While this case is based on circumstantial evidence like Baugh and O'Keefe, the circumstantial evidence herein was more extensive than the evidence adduced in those two cases.

In reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When viewing the evidence in that light, we must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Buxton v. State, 699 S.W.2d 212, 213 (Tex.Cr.App.1985), cert. denied, 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986). Moreover, "if the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding." Denby v. State, 654 S.W.2d 457, 464 (Tex.Cr.App.1983) (panel op). This does not mean, however, that the state must directly refute every purportedly reasonable hypothesis. Jackson v. State, 672 S.W.2d 801, 804 (Tex.Cr.App.1984). When a case contains conflicting evidence, the jurors, as rational triers of fact, may choose which evidence to believe. Id. In reviewing the jury's verdict, we are not to base our decision upon whether we are convinced to a moral certainty that each and every other reasonable hypothesis was excluded. ² Id. at 803.

The two hypotheses that the deceased, Kyle Davis, initiated the fire by dropping a burning cigarette on the couch or that the fire was started by Davis' attempt to commit suicide were both refuted by the undisputed expert testimony that Davis' alcohol and drug condition at the time of the fire had rendered him unable to function physically. Likewise, the hypothesis that the fire was nonincendiary was refuted by the uncontradicted expert testimony that the residue collected by the state arson investigator from the debris in the living room of the deceased's mobile home tested to be a "flammable" liquid. On this record, we find that any jury could have found each essential element of the crime beyond a reasonable doubt. Appellant's first point of error is overruled.

Appellant's second point of error alleges that the trial court erred by admitting evidence obtained from appellant as the result of an illegal arrest. Appellant's complaint is directed at the testimony of...