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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Texas Court Upholds Arson Conviction Based On Circumstantial Evidence


In Weaver v. State, No. 04-00-00166-CR, the Texas Court of Appeals for the Fourth District (July 25, 2001), reviewed the defendant's arson conviction. The defendant challenged his conviction claiming there was no direct evidence to support his conviction.

According to the court, there was ample circumstantial evidence to link appellant to the fire. The arresting officer, Deputy Jack Heinesh, testified that as he was driving home on Blue Wing Road after work, he noticed a white Isuzu parked on the side of the road with its lights on. He observed appellant exit the driver's side door and walk towards the left front tire. He also observed a Nissan auto backing up towards the Isuzu as if it were going to give appellant assistance. Deputy Heinesh drove past the Isuzu. About fifteen seconds later, he observed in his rear view mirror the Isuzu "in full bloom," meaning it was on fire. From past experience on this road, Deputy Heinesh deduced that the car was likely stolen and intentionally set on fire. He turned around and pursued the Nissan. He stopped the Nissan and arrested both occupants. Deputy Heinesh testified that appellant had urged the driver to "Go, go..." in an attempt to evade arrest. While flight alone will not support a guilty verdict, it is a circumstance from which an inference of guilt may be drawn.

In the Nissan on the floor in front of the passenger's front seat appellant had just occupied, the officer found a slam hammer which he knew to be a tool favored by car thieves to pop out the ignition and/or the ignition locking mechanism on a vehicle in order to bypass the system and start a car with a screwdriver. There was such a locking mechanism still attached to this particular slam hammer.

The Isuzu was reported stolen. The owner of the vehicle, who was related to appellant, first stated that he had parked the car at McCreless Mall and it had disappeared. He did not report the car missing or stolen until the police informed him that the car had been found. The owner later tried to withdraw the stolen vehicle report once the owner learned that appellant had been arrested. The owner had taken out a loan for approximately $16,000 and insured the vehicle on July 9, 1998. It was reported stolen on October 10, 1998. The loan was paid in full on October 13, 1998, the coverage was canceled, and no insurance claim was ever filed on this loss. Arson investigator Worthy, responding to a hypothetical question based on these facts, testified that one might do so in an attempt to avoid prosecution either for themselves or the person whom they had enlisted to burn the vehicle for them.

Arson investigator Stephen Worthy testified that in his opinion the fire which demolished the Isuzu was intentionally set, and that the cause of the fire was arson. This uncontroverted testimony is sufficient for a rational trier of fact to conclude that the fire was intentionally set. Machado v. State, 753 S.W.2d 252, 254 (Tex. App.-Houston [1st Dist.] 1988), pet. ref'd, 767 S.W.2d 809 (Tex. Crim. App. 1989) (arson investigator's undisputed testimony that fire was intentionally set was sufficient to support finding that fire was intentionally set).

Worthy found an aerosol can in the front passenger area of the Isuzu, the area where the fire started. He testified that one method favored by car arsonists is to light a match and, using the contents of the aerosol can as an accelerant, spray the contents of an aerosol can onto the upholstery. Worthy also testified that he had ruled out other potential causes of the fire, such as an engine fire or an electrical short, concluding that the fire was intentionally set. He further testified that a burning vehicle posed a danger to any passerby and described the potential dangers in detail. The jury also heard that Deputy Heinesh, three firefighters and a fire chief were placed in a dangerous situation when responding to the fire.

The court found the cumulative effect of this circumstantial evidence to be sufficient to sustain the jury's verdict of guilty. The judgment of the trial court was affirmed.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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