Johnson v. State

Decision Date01 December 2016
Docket NumberNO. 14-15-00834-CR,14-15-00834-CR
PartiesRAYMOND JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
CourtTexas Court of Appeals

On Appeal from the 185th District Court Harris County, Texas

Trial Court Cause No. 1450961


We consider four issues in this appeal from a conviction for arson: (1) whether the evidence is legally sufficient to support the conviction; (2) whether flawed science tainted the conviction; (3) whether, in response to a jury note, the trial court erred by giving an instruction to continue deliberations; and (4) whether the trial court erred by admitting evidence of an extraneous bad act. Finding no reversible error, we overrule each issue and affirm the trial court's judgment.


Firefighters received a report of a fire at the home of Kenneth and Charlene Booker, but by the time they arrived on scene, the fire had already been extinguished by the homeowners. The firefighters found a scorch mark and a burnt piece of paper on the back of a vehicle parked in the driveway. They also detected charring and a "real heavy smell" of gasoline in a separate area along the side of the house. Believing that there were multiple points of origin for the fires, a sign indicative of arson, the firefighters referred the case to the fire marshal's office.

A canine handler from the fire marshal's office was dispatched to the Bookers' house. The handler's dog, which was trained to detect accelerants, alerted at several locations. Five soil and debris samples were collected for chemical analysis, and four of them tested positive for the presence of gasoline.

Tonya Hilton, an investigator at the fire marshal's office, was also dispatched to the scene. She checked the area for possible heat sources, including extension cords, electrical and natural gas lines, cigarettes, candles, and lightning strikes. Hilton eliminated all of these sources as causes for the fires. When she detected a strong odor of gasoline and "distinct, separate areas of origin," Hilton opined that the fires must have been intentionally set.

Suspicions eventually turned to appellant, who once dated the Bookers' granddaughter, Breaunna. There was a troubled history between the Bookers and appellant. Breaunna lived with the Bookers, and they opposed her having any sort of dating relationship. The Bookers specifically opposed a dating relationship with appellant because they believed that he was rude and disrespectful. Breaunna dated appellant anyways, hiding her relationship from her grandparents. She ended the relationship a few months before the fires because appellant scared her and he was "really, really rough" with her.

On the night of the fires, Breaunna saw appellant driving down the cul-de-sac that led away from her grandparents' house. Moments later, as she approached the house, she noticed the fires and promptly warned her family.

Breaunna did not report appellant to the authorities at first. She did not believe that appellant would set fire to her grandparents' house. But after the fires, Breaunna received distressing phone calls from appellant, in which he allegedly said that he would kill her in order to be with her. Breaunna then decided to record her phone calls with appellant.

In a series of conversations, Breaunna told appellant that she would date him again, but only if he confirmed her suspicions and admitted to his role in starting the fires. Appellant eventually did so, explaining that he set the fires because he was heartbroken and he "felt like breaking some hearts." He also said that he wanted to hurt Breaunna because she got him kicked out of college and cost him his financial aid.

During the trial, the State published the recorded phone calls for the jury's consideration and argued that the phone calls proved appellant's guilt. Defense counsel offered a different explanation. Counsel argued that appellant made his statements because he was infatuated with Breaunna and because he believed that if he did not confess to starting the fires, then she would hang up the phone and never talk to him again.

The State tried to eliminate any concern that the fires may have been caused accidentally by Breaunna's grandfather, Kenneth. The evidence showed that Kenneth had cut his grass on the afternoon of the fires using a gasoline-powered lawnmower. Kenneth testified that he spilled some gasoline on the lawnmower as he was refilling it, but he clarified that the spill was so small that no gasoline evenhit the ground. He also testified that he refilled the lawnmower inside his garage, which was removed from the locations of the fires.

The defense asserted an alibi. Appellant's mother testified that she drove appellant to his father's house on the day before the fires. Appellant's father lived in a town more than sixty miles west of the Bookers' house, and appellant did not have any working transportation of his own. A friend also testified that appellant walked to her house on the morning of the fires and he did not leave until the following day.

The jury ultimately rejected appellant's defensive theory and convicted him as charged. The trial court assessed punishment at six years' imprisonment.


Standard of Review. When reviewing the sufficiency of the evidence, we examine 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 offense beyond a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). The evidence is legally insufficient when the record contains no evidence, or merely a "modicum" of evidence, probative of an element of the offense. See Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).

Our review of "all of the evidence" includes evidence that was properly and improperly admitted. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We also consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. See Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantialevidence alone can be sufficient to establish guilt. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

Although we consider everything presented at trial, we do not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the credibility of witnesses and of the weight given to their testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).

The Offense. To obtain a conviction for arson, the State was required to prove the following essential elements: (1) that appellant started a fire; (2) that he intended to destroy or damage a habitation with that fire; and (3) that he knew that the habitation was located within the limits of an incorporated city or on property belonging to another. See Tex. Penal Code § 28.02(a)(2)(A), (D).

Analysis. The record contains legally sufficient evidence to support a finding for each essential element of arson. Hilton opined that the fires were intentionally set, based on the smell of gasoline and the separate points of origin. And in the recorded phone calls, appellant admitted that he was the one who started the fires. He explained that he set the fires at the Bookers' house because he "felt like breaking some hearts." The jury could have inferred from that statement and from his conduct that appellant had the intent to destroy or damage the Bookers' house, which is a habitation. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) ("Intent may also be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant."). The jury could have also determined that appellant knew that the Bookers' house was "property belonging to another" because appellant did not live at that residence and there was testimony that he hadonce dropped off Breaunna at that location, knowing that she lived there with her grandparents.

Appellant counters that the evidence is legally insufficient because Hilton's testimony that the fires were intentionally set is scientifically unreliable. This reliability complaint is unpersuasive because it speaks to the admissibility of Hilton's testimony, and when we perform a sufficiency analysis, we consider all of the evidence even if it was improperly admitted. See Clayton, 235 S.W.3d at 778. Regardless of its admissibility, Hilton's testimony may be considered in a sufficiency analysis because, in addition to the recorded phone calls, it supports the jury's finding that appellant intentionally set the fires.

We conclude that there is legally sufficient evidence from which the jury could have found every element of the offense beyond a reasonable doubt.


In his second issue, appellant argues that we should grant him a new trial in the interests of justice because his conviction was based on flawed science. Appellant focuses on Hilton's testimony, which, according to him, applied a methodology known as "negative corpus."

Negative corpus, short for negative corpus delicti, is the process of concluding that a fire was intentionally set based on the absence of evidence of an accidental cause. See Control Solutions, Inc. v. Gharda USA, Inc., 394 S.W.3d 127, 180 (Tex. App.—Houston [1st Dist.] 2012), rev'd, 464 S.W.3d 338 (Tex. 2015). This methodology has been widely criticized as being inconsistent with the scientific method. E.g., Somnis v. Country Mut. Ins. Co., 840 F. Supp. 2d 1166, 1172 n.2 (D. Minn. 2012) ("[T]he conclusion that a fire was intentional due to the lack of evidence of an accidental cause is...

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