Williams v. State, 10-96-191-CR

• Decision Date: 16 July 1997
• Docket Number: No. 10-96-191-CR,10-96-191-CR
• Parties: Kevin Wayne WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 954

948 S.W.2d 954

Kevin Wayne WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. 10-96-191-CR.

Court of Appeals of Texas,

Waco.

July 16, 1997.

Rehearing Overruled Aug. 13, 1997.

Stan Schwieger, Law Office of Stan Schwieger, Waco, for appellant.

John W. Segrest, Criminal District Attorney, Susan Kelly, Asst. District Attorney, Waco, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

DAVIS, Chief Justice.

A jury convicted Kevin Wayne Williams of arson and assessed punishment at 60 years' confinement. By six points of error, Williams now appeals his conviction complaining the evidence is insufficient regarding how the fire started, the prosecution injected new facts in closing argument, and the trial court erroneously allowed proof of extraneous offenses into evidence. Because the evidence is sufficient, new facts were not injected in the prosecutor's closing argument and the trial court did not commit error requiring reversal, we affirm.

After leaving work around 11:00 P.M. on February 23, 1993, Stephen Zobal went to Fellowship Bible Church to watch a video he had missed from a previous Sunday School. When Zobal neared the church he noticed an unfamiliar car parked by the entrance. Concerned that someone might be stealing something from the church, Zobal waited in his car and observed a man drive off in the car. Zobal followed the car and obtained its license plate number. Thereafter, Zobal returned to the church to see if anything was missing. After satisfying himself that everything was all right at the church, Zobal began watching the video. A short time later, Zobal smelled smoke. Soon, he heard the sounds of approaching sirens. Zobal then went outside and saw that the building across the alley from the church, which housed the Oriental Rug Co., was on fire. Despite the efforts of the firemen, the building was totally gutted.

The morning after the fire, the police stopped a car with the license plate and description that matched the one Zobal saw the previous night near the church. The car belonged to Williams, an ex-employee of Oriental Rug. Williams left Oriental Rug's employment on unfavorable terms because he did not receive a Christmas bonus as he had expected. Moreover, he had threatened to get even with his ex-employer. These facts led investigators to consider Williams as a prime suspect if the fire was ruled an arson.

When firefighters arrived on the scene, the building's doors and windows were locked. Because the locked entrances indicated that nobody had entered the building to start the fire, investigators initially thought the fire may have started accidently. After determining that the fire started in or near a cock loft (the space between the roof and the ceiling) adjacent to a skylight on the building's roof, the investigators concluded that the fire was intentionally set. A grand jury eventually indicted Williams for arson. The indictment alleged that Williams started "a fire in a manner and means unknown to the Grand Jury or by lighting gasoline on the premises."

In his first point of error, Williams complains the State failed to prove that the manner and means were "unknown to the Grand Jury," which rendered the evidence legally insufficient. When an indictment alleges that the manner or means utilized to inflict damage is unknown and the evidence at trial does not show what mechanism was used, a prima facie showing exists that the mechanism was unknown to the grand jury. Hicks v. State, 860 S.W.2d 419, 424 (Tex.Crim.App.1993); McFarland v. State, 845 S.W.2d 824, 830 (Tex.Crim.App.1992); Matson v. State, 819 S.W.2d 839, 847 (Tex.Crim.App.1991). If, however, evidence at trial shows what mechanism was used to inflict the damage, an issue is raised with respect to whether the grand jury had information, when it handed down the indictment, as to the mechanism used. Id. Only in such a case, must the State prove that the grand jury did not know the manner or means used to inflict the damage and that the grand jury used due diligence in its attempts to ascertain the manner or means. McFarland, 845 S.W.2d at 830; Matson, 819 S.W.2d at 847.

During the trial, no evidence demonstrated the mechanism that Williams used to ignite the fire. Some testimony was elicited about the possibility of using a cigarette butt to start the fire. However, no witness ever testified that a cigarette butt or any other mechanism definitely ignited the fire. Because the evidence is inconclusive as to the instrumentality that was responsible for the starting of this arson fire, the State need not prove that the grand jury used due diligence in attempting to ascertain the ignition source. Hicks, 860 S.W.2d at 425. Therefore, we overrule Williams' first point.

Williams' fourth point contends that the "State injected new facts into closing argument concerning the failure of the grand jury to find the manner and means that the fire began." To constitute a proper jury argument, the argument must entail one or more of the following: (1) summation of the evidence presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the opposing counsel's argument; or (4) a plea for law enforcement. Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App.1997); Bryant v. State, 923 S.W.2d 199, 211 (Tex.App.--Waco 1996, pet. ref'd). Counsel is allowed wide latitude in drawing inferences from the evidence so long as the inferences drawn are reasonable and offered in good faith. Cantu, 939 S.W.2d at 633. Conversely, jury argument must be extreme or manifestly improper, or inject new and harmful facts into evidence to constitute reversible error. Id.; Bryant, 923 S.W.2d at 211. In deciding whether a jury argument is extreme or manifestly improper, we look at the entire record of final arguments to determine if the State made a willful or calculated effort to deprive the defendant of a fair and impartial trial. Cantu, 939 S.W.2d at 633.

During closing argument, the prosecutor stated the grand jury could not determine the manner and means of the fire's ignition because the fire completely gutted the building. This statement merely summarized the evidence as the record is replete with statements that the building was totally destroyed by the fire. Also, pictures introduced into evidence demonstrate the extensive damage the fire caused. From these photographs and other evidence, it is fair to say that the prosecutor made a reasonable inference that the grand jury could not determine the manner and means of this fire's ignition because of its devastating effect. Furthermore, during defense counsel's closing argument, he claimed the State offered no evidence that the grand jury did not know the manner and means of the fire origination. Thus, the prosecutor's statement simply answered the argument espoused by opposing counsel. After reviewing the entire record of closing arguments, we cannot say that the prosecutor made this argument in an effort to deprive Williams of a fair and impartial trial. Id. We overrule the fourth point.

In his second and third points, Williams complains that the evidence is legally and factually insufficient to prove he used gasoline to start the fire. Williams draws a distinction between accelerating the fire with gasoline and igniting the fire with items such as matches, cigarette lighters, cigarette butts, blow torches, or flint rock. Taylor v. State, 735 S.W.2d 930, 943 (Tex.App.--Dallas 1987), rev'd on other grounds, No. 1184-87 (Tex.Crim.App.1988) (unpublished). We agree that gasoline may be used to accelerate a fire as opposed to igniting a fire. Id. at 945. However, the indictment in this case alleged in the alternative that Williams started a fire "by lighting gasoline on the premises." The indictment does not allege the mechanism with which Williams used to ignite the accelerant gasoline. Thus, we read the indictment to allege in the alternative that Williams used some unknown mechanism to ignite a fire that was accelerated by gasoline.

The State elicited the testimony of Terry Bronough, who testified that Williams told him that he "poured gasoline around the place" and lit it. Additionally, the firemen and expert witnesses indicated that they believed some type of accelerant was used in this fire. After reviewing the evidence in the light most favorable to the verdict, we find that any rational trier of fact could have found beyond a reasonable doubt that Williams somehow lit gasoline to accelerate this fire. Moore v. State, 935 S.W.2d 124, 126 (Tex.Crim.App.1996); Bryant, 923 S.W.2d at 206. Furthermore, even without viewing the evidence in the light most favorable prism, the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Williams' second and third points are overruled.

Williams complains in his fifth point that the trial court erred in allowing proof of extraneous offenses. Also, he alleges in his sixth point that the trial court erred in admitting the extraneous offenses because they were more prejudicial than probative. These extraneous offenses regarded several burglaries which...