Orr v. State

• Decision Date: 18 February 2010
• Docket Number: No. 2-08-143-CR.,2-08-143-CR.
• Citation: 306 SW 3d 380
• Parties: Rhonda ORR, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

306 S.W.3d 380

Rhonda ORR, Appellant, v. The STATE of Texas, State.

No. 2-08-143-CR.

Court of Appeals of Texas, Fort Worth.

February 18, 2010.

D. Keith Orsburn, Denton, for Appellant.

Paul Johnson, Crim. Dist. Atty., Charles E. Orbison, Chief Appellate Section, Catherine Luft, Cary Piel and Michael Dickens, Asst. Dist. Atty's for Denton County, Denton, for Appellee.

PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

OPINION

ANNE GARDNER, Justice.

I. Introduction

A jury found Appellant Rhonda Orr guilty of first-degree arson resulting in the death of her husband, James Orr,¹ and assessed her punishment at eighty-eight years' imprisonment. In seven points, Rhonda challenges the legal and factual sufficiency of the evidence to support the arson verdict, the legality of the search of her home on October 16, 2003, the admissibility of testimony by the State's expert witness, the admissibility of autopsy photographs, the trial court's ruling on the State's closing argument, the trial court's denial of her motion for mistrial, and the trial court's definition of "reasonable doubt" in its jury charge. We affirm.

II. Procedural Background

A grand jury indicted Rhonda in February 2004. The indictment alleged that Rhonda started the fire by igniting a combustible substance knowing that the house was within the limits of an incorporated city or town with intent to damage or destroy the house and that James Orr died as a result of the fire. Rhonda pleaded not guilty. Her case was tried in March 2008, at the conclusion of which the jury returned a verdict of guilty and assessed punishment at eighty-eight years' confinement.

III. Factual Background

Rhonda and James Orr married in 1999. James, who was disabled from a childhood injury and confined to a wheelchair, died in a house fire in the early morning hours of May 14, 2003. The State's theory at trial was that Rhonda, motivated by insurance money, intentionally started the fire that killed James. Rhonda contended that she and James, although in the process of a divorce, did not have a contentious relationship and that the cause of the fire could not be determined.

Former Little Elm Police Officer William Miller² received a 9-1-1 dispatch around 3:45 a.m. that the fire department was en route to a house fire with a person still inside the house. He arrived "really quickly," noticed smoke coming out of the house, and saw Rhonda, her daughter, and neighbors standing outside. Rhonda rushed up to him, pointed him to her house, and said her husband was still in the back bedroom. Rhonda told Officer Miller she had tried to get her husband out of the house but he had kicked her away and shut and locked the door.

Officer Miller said Rhonda went with him to the front door area of the house where she pointed him toward the master bedroom door. He then went into the house alone and found the door to the master bedroom locked. He called out for James but heard nothing. Officer Miller kicked in the door, and chest-high smoke billowed out of the room. Officer Miller entered the room and found the wheelchair but did not find James.³ He retreated toward the driveway, taking Rhonda with him from the front-door area. Rhonda insisted James was in the bedroom, so Officer Miller made two more unsuccessful trips into the master bedroom to find James. The fire and increasing smoke caused Officer Miller to lose his breath and start choking, and parts of the ceiling fell on him as he searched the master bedroom. Concerned for his own safety, Officer Miller felt he had to leave the house. Officer Robert Walton arrived near this time, and, trying to find a way into the house, he and Officer Miller went to the back of the house. Officer Miller kicked out the back window to the master bedroom with his foot, getting his boot caught in the window in the process, and causing air to rush in and the flames then to rush out.

When the fire department arrived, Officer Miller returned to the front of the house and apologized to Rhonda for not finding James. He was then care-flighted to Parkland Hospital for treatment. Officer Miller later learned James was found in the bathroom near the toilet; he testified he might have found James had he been told there was a restroom in the bedroom. Officer Miller said Rhonda seemed upset at the scene of the fire. In addition, he said that although she had not previously done so, Rhonda insisted on going back inside the house once the fire department arrived.

Bart Vest, a firefighter-paramedic with the Frisco Fire Department, said he arrived at the scene of the fire to assist in treating any victims, and said he understood two police officers and a pregnant female (Rhonda) had smoke inhalation. Vest testified Rhonda did not want any treatment and insisted that someone get her husband out of the house. Vest said Rhonda appeared upset and wanted the efforts directed to her husband, who was in a wheelchair and could not get out of the house on his own.

Robert Wren O'Neal and his wife, Lindsey O'Neal, lived next door to Rhonda and James. O'Neal testified that he and his wife had been awakened around 3:30 or 3:45 a.m. on May 14, 2003, by Rhonda's "frantic knocks" at their front door. Rhonda, who stood at the door with her daughter Amanda,⁴ said that her house was on fire and that James was still inside. Lindsey O'Neal called 9-1-1 because Rhonda said she had not done so.

O'Neal testified that Amanda stayed with his wife and that he went next door with Rhonda. He could hear the smoke detectors going off and saw the entryway full of smoke. He recalled that Rhonda frantically screamed that James was locked in the master bedroom. O'Neal went down the hallway with Rhonda to the door of the master bedroom, but the door was locked. The doorknob was hot, and black smoke billowed out from the top, bottom, and sides of the door. O'Neal and Rhonda yelled James's name and could hear James moaning or grunting; O'Neal said James sounded like he was in severe pain. Because O'Neal did not feel safe in the house, he and Rhonda then went outside the house to the driveway, although O'Neal acknowledged Rhonda was hesitant to leave. O'Neal said no one else was around until Officer Miller arrived in a "couple of minutes or so." O'Neal testified that Rhonda was in his presence from the time she knocked on his door until Officer Miller arrived, that Rhonda did not go into the house with Officer Miller, and that Rhonda could not have gone into the house without his knowledge.

O'Neal said it seemed unusual that Rhonda parked her car across the street in front of a neighbor's house the night of the fire because she typically parked her car in the driveway or in the garage; he had not previously seen it parked across the street. O'Neal also said James usually parked in the driveway or on the street in front of the Orrs' house, but his car was parked on the street between the Orrs' house and the O'Neals' house on the night of the fire.

Lindsey O'Neal testified Rhonda did not have time to go into the house by herself because her husband left with Rhonda immediately after Rhonda told them that there was a fire and that James was in the bedroom. She also testified that, after the fire, Rhonda asked her to lie and say that she was the pregnant woman at the scene, not Rhonda, because no one knew that Rhonda was pregnant and that James was not the father. Lindsey O'Neal also said she believed Rhonda was "fake crying" when the rescue workers removed James's body from the house.

Captain Shawn Russell of the Little Elm Fire Department testified that he received a call about a house fire with a handicapped person trapped inside. He testified that there were heavy fire conditions when he entered the house to find the master bedroom. He could not see his hand in front of his face and he was "pretty much on his belly crawling around." Captain Russell found James in the back of the bathroom, sitting Indian-style, and slumped over with his hands between his legs. James had no pulse, appeared burned, had a lot of black around his mouth and chin, and was lifeless. About that time, the Frisco Fire Department arrived and helped get James out of the house. The Frisco paramedics then took over and tried unsuccessfully to resuscitate James. Dr. Gary Sisler, a deputy medical examiner for Tarrant, Parker, and Denton counties, testified that James died from smoke inhalation and thermal burns covering eighty percent of his body.

Donald Diviney is a former sergeant in the Criminal Investigation Division of the Little Elm Fire Department. He responded to the fire and, upon arriving, spoke with Officer Miller, Wren O'Neal, and fire department personnel. He also spoke briefly with Rhonda about Officer Miller's attempts to rescue James.

Diviney said he further interviewed Rhonda around 9:30 a.m. that morning after she returned from the hospital. Rhonda told him James had wheeled through the living room the night before while she and Amanda watched television and "was bragging" about being "toasted." She also told Diviney that James was taking Flexeril.

According to Diviney, Rhonda told him there had been a fire in the house earlier in the evening that they had extinguished. Diviney said Rhonda told him she saw a bottle of alcohol that had tipped over, a clock radio hanging by its cord, and a tipped-over candle on the night stand closest to the bedroom door. Diviney believed that Rhonda was implying that the earlier fire started because James was intoxicated from alcohol and Flexeril and had knocked over the candle.

Rhonda told Diviney she was awakened later by the alarm from the new fire. She said that when the second fire woke her up, she first tried to get into the master bedroom but could not. She told Diviney she then took Amanda to the neighbors' (the O'Neals') house. After returning from the neighbors' house, and apparently finding the bedroom door open, she went inside, found James on the floor, and...