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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 Expert’s Arson Opinion


In Drake v. Texas, No. 14-02-01228-CR, November 13, 2003, the Texas Fourteenth Court of Appeals, reviewed the defendant’s arson conviction upholding an expert's arson opinion. On the morning of June 10, 2002, the owner of the Of the Day Café (ACafé@), a restaurant in Columbus, Texas, arrived at the Café and discovered the back door was charred. She noticed an odd odor, as though something had burned. The previous evening, June 9, 2002, at about 11:30 p.m., a Columbus police officer was dispatched to a lumberyard and found appellant hiding with a backpack containing appellants driver's license, a torch, and a propane-type canister. Appellant was arrested and initially charged with attempted burglary of the Café, located about 1,500 feet from where appellant was found.

On June 11, 2002, Columbus Police Chief Robert Connor visited appellant in the library of the Colorado County Jail. Connor told appellant a scent lineup had positively identified her as being at the Café. Connor asked appellant for a statement, but she wanted to negotiate about eliminating some of the charges against her. He told appellant any negotiations would have to be with the county attorney. Connor did not read appellant her legal rights at that time. On June 13, 2002, appellant was brought to Connor's office, but she was unwilling to make a statement. On June 14, 2002, Connor again met with appellant in the jail library, and appellant provided a written statement confessing she had attempted to open the back door of the Café with the torch found in her backpack and had expected to get money from the building. Appellant was then charged with arson.

Appellant contended the trial court "erred" by admitting the testimony of David Stahle, the Columbus City Manager, who had twenty years experience as a state certified fire/arson investigator. When the State called Stahle, defense counsel objected that "the issue is whether a fire was started and that should be within the province of the Jury." Defense counsel expanded:

It is under Rule 7.04 [sic], I believe it is. There is nothing to bar testimony that embraces or addresses the main issue, but the expert cannot supplant the jury's role. They are the final decision maker and I don't think this particular case requires an expert. I think the Jury is equally qualified to look at the photos and see what happened and make a decision as to whether or not in their opinion that constitutes starting a fire. Essentially it is improper bolstering and extraneous on the State's part.

The trial court overruled the objection and subsequently permitted appellant a running objection to Stahle's testimony.

After summarizing his experience and training in arson and fire investigation, Stahle then testified he had inspected the door and door frame, had viewed photographs taken soon after the offense was reported, and had taken photographs of his own. Based on his observations, Stahle opined there "was evidence of direct flame impingements upon the door and siding of the jamb localized around the lock area." He testified the door was a hollow metal-clad door. According the Stahle, the paint on the door, the wood frame, and the framing of the building were capable of catching on fire. Stahle was able to determine a "fire had started." He based his determination on the following: "There was charring of wood. There was a reflection of the wood mass, a common cause of a chemical reaction that results in fire. There was deep charring and it had burned for some period of time." Stahle further explained that propane burns at 2,810 degrees, "certainly sufficient to start a fire in any flammable or combustible material." Using a photograph of the edge of the door and the door jamb, Stahle pointed out an area that was scorched and burned, as well as an area of deep char. He concluded by explaining a "rule of thumb" that there is an inch of char for every 45 minutes of burning, and he observed about a half-inch of char.

The court reviewed the trial court's ruling on the admissibility of evidence under an abuse-of-discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (citing Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999)). Accordingly, it must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.1990)). In addition, it must review the trial court's ruling in light of what was before the trial court at the time the trial court ruled. Id. (citing Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998); Hardesty v. State, 667 S.W.2d 130, 133 n. 6 (Tex. Crim. App. 1984)).

"Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." TEX. R. EVID. 704. Texas Rule of Evidence 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." TEX. R. EVID. 702.

As the court of criminal appeals has explained, Rule 702 contains two themes:

First, the jury must not be qualified to intelligently and to the best possible degree determine the particular issue without benefit of the expert witness' [sic] specialized knowledge. Second, the clear meaning of the rule must be observed. . . . The use of expert testimony must be limited to situations in which the expert's knowledge and experience on a relevant issue are beyond that of an average juror. The decision to be made remains with the jury, but the testimonial expertise is allowed to enable the trier of fact to better comprehend the full significance of the evidence. The evidence at issue is admissible if it encompasses or "embraces" an ultimate fact; it may not decide that fact for the jury.

Duckett v. State, 797 S.W.2d 906, 914 (Tex. Crim. App. 1990) (citations omitted), disapproved on other grounds in Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993). Additionally, "When the evidence is of such content as to be classified as 'specialized' within a particular discipline, a presumption may be drawn that the evidence is not of common experience." 797 S.W.2d at 917.

In the present case, the State had to prove appellant "started a fire, regardless of whether the fire continued after ignition." TEX. PEN. CODE ANN. § 28.02(a)(2) (Vernon 2003). The evidence established the Cafe door and door frame were steel, with wood inside the door and in the door frame. Although the photographs showed blackened or charred areas on the door and door frame, Stahle provided evidence from which the jury could translate the amount of char on the wood jamb into the length of time the wood burned (i.e., one-half of 45 minutes). Although it is possible the jury would have been capable of deciding whether this amount of time meant appellant started a fire, Stahle had specialized knowledge on the issue which was helpful. See John F. Sutton, Jr. & Cathleen C. Herasimchuk, Article VII: Opinions and Expert Testimony, 30 HOUS. L. REV. 797, 817 (1993) (Texas Rules of Evidence Handbook) (citing Duckett, 797 S.W.2d at 917). The court concluded the trial court did not abuse its discretion in admitting Stahle's testimony.

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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