KENNETH LEE WILLIS v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Myers

Appellant was convicted of one count of aggravated assault with a deadly weapon ¹ and two counts of arson of a habitation.²  He was sentenced to three concurrent terms of life imprisonment.   In three points of error, appellant challenges the sufficiency of the evidence and argues the trial court abused its discretion by not granting a mistrial.   We affirm the trial court's judgments.

Background and Procedural History

The Aggravated Assault

Tracye Willis (Willis) met and started dating appellant in September of 2009.   She and appellant had the same last name but were never married, and they did not live together.   Willis testified that on December 20, 2009, at her home at 4603 Jamaica street, Dallas, Texas, she and appellant argued because appellant had heard she was romantically involved with Adolphus “Ray” Tate, a man Willis had known “for so many years” and considered a friend.   Appellant also accused Willis of being a lesbian and having a romantic relationship with Alma “Love” Williams because Willis wore a ring on her thumb.   The ring had been a gift from Williams.

According to Willis's testimony, appellant put his hands around her neck and choked her until she saw “stars” and fell to the ground.   During the struggle, appellant “ripped ․ open” Willis's shirt.   Willis also twisted her left ankle.   Then, while Willis was lying on the ground, appellant pulled what looked like a .22 caliber handgun out of his coat pocket and threatened to kill Willis.   Appellant dragged her across the room and pushed her over a sofa table.   As appellant was leaving the house, he threatened “that he would come back and burn this house up.”   After the assault, Willis decided not to stay in her home.   She locked all of the doors before leaving.

Later that night, Willis gave a statement to the Dallas police.   The Dallas police officer who responded to the “[m]ajor disturbance” dispatch, John Casey, noticed that Willis had a torn shirt and a broken necklace.   Casey testified that Willis “seemed distraught” and told him appellant threatened her with a pistol.   Willis told the officer it was a “[s]mall caliber” weapon.   She also told Casey that she was a diabetic “and hadn't taken her medication that day.”

The December 31, 2009 Fire at Tracye Willis's House

On December 31, 2009, Willis was at work when she received a telephone call from appellant.   Willis testified that appellant “was doing a whole lot of apologizing, and that was basically it.”   Willis listened to appellant but she “wasn't saying too much really in detail,” and she “was just trying to get him off the phone.”   Later that day, Willis went home to find her house on fire.   Willis testified that her home “was really damaged.”   She gave a statement to an arson investigator that appellant had threatened to burn her house down.   Willis also testified that, on January 24, 2010, appellant called her and, after calling her a “bitch,” stated, “I got you.”

Larry Pope was a resident of the neighborhood where Willis lived.   At the time of trial, he had been arrested and charged with a felony offense, aggravated assault with a deadly weapon, and entered into an agreement with the State for a possible reduction in punishment in exchange for testifying against appellant.

Pope testified that on December 31, 2009, he was on his mother's porch talking to several cousins when appellant, who Pope knew as “Tank,” came up to him and asked to speak to him “for a moment.”   Referring to Willis, appellant told Pope “that he was going to get that bitch.”   Pope recalled that this conversation occurred between 12 and 3 p.m.

Pope told appellant he had to leave, then left with his cousins to go a nearby liquor store.   Pope estimated they were gone “[f]or about 25 to 30 minutes.”   When they returned, they saw Willis's house on fire.   Pope recalled that, at that point, he “was thinking about what Tank had said.   He had just said that he was going to get that bitch, and that's—that's the first thought that came to my mind.”   When Pope saw appellant several days after the fire, appellant told Pope, “I'm going to keep on till I burn that mother[-]fucking house all the way down.”   On January 6, 2010, Pope gave the arson investigator, Captain Paul Martinez of the Dallas Fire Rescue Department, a written statement about his encounter with appellant.

Martinez testified that when firefighters arrived at the residence, they “forced entry” through the front door because the door was locked.   Martinez recalled there was visible damage to the locking mechanism on one of the other doors, and the back door had “marks” on it.   Martinez asked the firefighters if they had caused that damage, and they said no.

Martinez determined the fire was “incendiary or intentionally set” by “something unknown,” and that it started in the middle bedroom.   Most of the fire damage was to the mattress in that bedroom.   Martinez could not find any indication of an “accelerant,” and he ruled out electrical or accidental causes for the fire.   After interviewing Willis, Martinez spoke to appellant on the telephone two or three days after the fire, and the two arranged a time for an interview.   Appellant did not show up for the interview.   Martinez went to appellant's mother's house twice and left his business card, but was unable to interview or get a statement from appellant.

Appellant's friend, Odelle Jones, Jr., testified for the defense that appellant could not have set the fire at Willis's house because he was asleep on Jones's sofa during the fire.   Jones stated that he had known appellant “[f]or years,” and that they “went to school together.”   Jones testified that appellant came to his house at 4846 Brashear, several blocks from Willis's house on Jamaica street, between 7 and 8 a.m. on the morning of December 31, 2009, and that Jones's wife and three children were also home at the time.   Appellant had a bottle of “KD” whiskey, which appellant and Jones referred to as “killer death.”   The two of them drank and talked until appellant fell asleep on the sofa in Jones's living room.   Jones locked the dead bolt on the front door, which needed a key to unlock it from either side, and went to sleep in his bedroom.   Appellant did not leave Jones's house after that, according to Jones's testimony.

Jones testified he was later awakened when he heard appellant's cellular phone ringing.   Appellant did not answer the phone, which was on a coffee table by the sofa, because he was asleep.   Jones answered the phone, and discovered it was appellant's mother calling.   Jones did not remember what time this phone call occurred.   After talking to appellant's mother, Jones went to Willis's house on Jamaica.   He could see the house had been on fire.   Both appellant's mother and Willis were there.   Jones, however, did not know Willis, and, because she was wearing a “blue suit,” ³ Jones mistakenly believed her to be a fire marshal.   Jones told her appellant “couldn't [sic] did it, because he at my house asleep on the sofa.”   Jones got into a verbal altercation with Willis, who, according to Jones, “started talking so crazy to [him].”   Jones also spoke to one of the firemen, who asked Jones “where Kenneth [was] at.”   Jones told him, “Well, Kenneth [is] at my house asleep on the sofa.”   The fireman gave Jones a card to give to appellant.

Jones testified that the front door to his house was locked when he went to Willis's house, and appellant was still there when he returned.   Jones explained that his house had two doors, the front door with the deadbolt and a back door.   But Jones insisted appellant could not have gone out the back door because Jones's two pet dogs, a “shepherd and a chow,” “would have ate him up.”   Jones said those dogs did not know appellant, although appellant visited Jones, according to Jones's testimony, “[a]bout three times out a week.”

The January 23, 2010 Fire at Alma “Love” Williams's House

Alma “Love” Williams, who lived at 4421 Jamaica street, testified that she had known Willis her entire life, but did not know appellant.   On January 23, 2010, Williams left to go to the grocery store at around 3 p.m. When she returned to her home, her house was on fire.   Williams was sure she had locked all of the doors when she left the house, and she had no reason to believe appellant had anything against her—nor, according to Williams, had she done anything to appellant.   Williams also noted that Willis had not been to her house “in about a year.”

Pope testified that he spoke to appellant after the December 31, 2009 fire at Willis's house, but before the fire at Williams's house.   Pope said that appellant asked him if he had “seen Tracye yet.”   Pope told appellant he had not “seen her,” and that, “If you want to find [Willis], well maybe you should watch Ms. Love's house.”

Steven Cleveland (Steven), one of Williams's neighbors, testified ⁴ that on January 23, 2010, between approximately 12 and 3 p.m., appellant knocked on his door.   Steven stated that appellant, who Steven also knew as “Tank,” wore a black leather jacket and blue jeans.⁵  Appellant told Steven “he had got in some trouble and the lady down the street had told on him.   The lady with the green Taurus ⁶ had told on him, and he was ․ going to handle his business later on.”   Steven noticed that Williams drove a green Taurus, but he also knew a woman who lived down the street that had a green Taurus.   Steven told his sister, Jacqueline Cleveland, about the conversation with appellant.   They decided to warn both women because they did not know to which woman appellant was referring.   But Steven decided to “give it a few minutes” because he did not want appellant “to see us go over there and tell them, and then come try to burn down our house.”

Steven took a shower while he waited.   By the time he got out of the shower, his nephew was at his door telling him to go to his mother's house.   Steven's mother told him to check Williams's house because she had just seen a man walk “around the house.”   When Steven went to the back of the house, he saw that “the back room was in flames.”   Steven called the fire department and later gave a written statement to the fire investigator.   Steven noted he did not see the man who went behind Williams' house, but his mother did.

Steven's mother, Annie Cleveland (Cleveland), testified she was sitting in her house looking out of her window at approximately 3 p.m. on January 23, 2010, when she saw a “suspicious” man walking through the neighborhood—a man she “had never seen before.”   He walked down the sidewalk and went around to the back of Williams's house, where he stayed for a few minutes, then walked back around to the front of the house and down the sidewalk.   Cleveland saw something white on the man's hands, which could have been “gloves or socks.”   She recalled that the man was wearing a “[b]rown and black plaided” leather coat, a black cap, and dark-rimmed glasses that looked to Cleveland like glasses, not “shades.”   The man remained “up the street” for two to three minutes, then walked back to the house next to Williams and stopped to talk to someone who pulled up in a brown car.   He had a “brown sack” in one hand and what looked like a “white Minyard bag” in the other.   He again “walked back around [Williams's] house past the trash can, and he stepped back and dropped, like, something in the trash.”  “[A]fter awhile,” Cleveland saw him “going down the street on Baldwin.”   She no longer saw anything in the man's hands.

Cleveland then noticed a puff of smoke coming from Williams's house.   She sent her grandson to get her son Steven, who called 911.   Though Cleveland testified she had not noticed anyone come up to her son's house that day, she said that at around 11 a.m., her son and daughter came over and told her a man named Tank, Tuck, “or something,” wearing a “plaidy coat,” had come over and told them he planned “to do something later that evening.”

Captain Calvin Nichols of the Dallas Fire Rescue Department responded to the fire at 4421 Jamaica on January 23, 2010.   Nichols explained that the firefighters had to force their way into the house because the windows and doors were locked.   When he first arrived at the scene, Nichols noticed a trash can outside of the residence that “was actually on fire when I got there.”   Nichols stated that “there was smoke damage throughout the house,” but fire damage was limited to the back room.   As for the outside of the house, Nichols saw fire damage under a window sill outside of the back room.   This was important because, according to Nichols, “fire goes up,” yet there was no damage above the window.

As Nichols explained, this meant that something below the window caused the damage.   He stated that the window sill that was damaged was the window leading to the room that was burned.   Nichols also testified that he saw a brown paper bag on fire “that had something in it,” and the bag was near the trash can that was on fire.   Nichols determined there had been two separate fires:  one that started on a couch or sofa inside the back room, and another in the trash can.   Nichols found no indication that an accelerant, such as gasoline or kerosene, had been used.   But he classified the fire as “incendiary,” and as an arson.⁷  Nichols also testified it would have taken only a “[m]inute or two” to start the fire, and that someone could have broken the window to the back room and pushed something through the window onto the couch or sofa.   Nichols took two written statements from witnesses on January 23, 2010, one from Annie Cleveland and one from Steven Cleveland.   Based on the information he gathered, Nichols determined that appellant was a suspect.

The jury convicted appellant of aggravated assault and arson of a habitation, as charged in the indictments.   He was sentenced to three concurrent terms of life imprisonment.   This appeal followed.

Discussion

Sufficiency of the Evidence

Appellant's first two points challenge the sufficiency of the evidence supporting the convictions for arson of a habitation.   In his second point of error, appellant argues the evidence is legally insufficient to establish that he was the person who set the December 31, 2009 fire.   In his third point, appellant asserts the evidence is legally insufficient to show he was the person who set the January 23, 2010 fire.

In reviewing a challenge to the sufficiency of the evidence, we examine all 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.  Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.).   We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 326.

In cause 05–11–00472–CR, the indictment charged appellant with arson of a habitation:

On or about December 31, 2009 ․ [appellant] did then and there, with the intent to damage and destroy a habitation, start a fire and cause an explosion, by IGNITING COMBUSTIBLES WITH AN OBJECT UNKNOWN TO THE GRAND JURY, knowing that said habitation was within the limits of an incorporated city and town, namely:  DALLAS, DALLAS COUNTY, TEXAS.

In cause 05–11–00473–CR, indictment similarly charged:

On or about January 23, 2010 ․ [appellant] did then and there, with the intent to damage and destroy a habitation, start a fire and cause an explosion, by IGNITING COMBUSTIBLES WITH AN OBJECT UNKNOWN TO THE GRAND JURY, knowing that said habitation was within the limits of an incorporated city and town, namely:  DALLAS, DALLAS COUNTY, TEXAS.

Section 28.02(a)(2)(A) of the Texas Penal Code provides that an individual commits the crime of arson “if the person starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with intent to destroy or damage ․ any building, habitation, or vehicle ․ knowing that it is within the limits of an incorporated city or town.”  Tex. Penal Code Ann. § 28.02(a)(2)(A) (West 2011).  “To establish the corpus delicti in arson cases it is necessary to show that a fire occurred and that the fire was designedly set by someone.”  Mosher v. State, 901 S.W.2d 547, 549 (Tex.App.—El Paso 1995, no pet.).  “[T]he offense [of arson is] complete whenever the actor starts a fire with the requisite culpable mental state, whether or not damage of any kind actually occurs.”  Beltran v. State, 593 S.W.2d 688, 690 (Tex.Crim.App. [Panel Op.] 1980);  Mosher, 901 S.W.2d at 549.  “A fire may produce scorching and smoke damage without igniting the surrounding materials.”  Beltran, 593 S.W.2d at 689.

“Intent can be inferred from the acts, words and conduct of the accused, though in an arson case it cannot be inferred from the mere act of burning.”   Id. “Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.”  Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007).  “It is well settled that the mere presence of an accused at the scene of an offense is not alone sufficient to support a conviction;  however, it is a circumstance tending to prove guilt which, combined with other facts, may suffice to show that the accused was a participant.”  Thomas v. State, 645 S.W.2d 798, 800 (Tex.Crim.App.1983).

Beginning with the December 31, 2009 fire, appellant argues the State “could offer nothing more than mere presence in the vicinity of the fire.”   But the evidence included the testimony of Willis and Pope, as well as circumstantial evidence from which a reasonable inference of guilt could be drawn.   The evidence showed appellant assaulted Willis on December 20, 2009, and threatened to “come back and burn this house up.”   Appellant was seen by Pope near the crime scene on the day of the fire, within minutes of the fire.   Moreover, appellant told Pope he was going to “get” Willis.   After the fire, appellant looked for Willis and told Pope, according to Pope's testimony, that he was going to “keep on” until he burned Willis's house “all the way down.”   Appellant also called Willis after the fire to tell her he “got” her.   There was testimony from the arson investigator, Martinez, that appellant scheduled a time to meet with him, then failed to show up for the appointment.

As for the January 23, 2010 fire, appellant likewise argues the State offered nothing more than his mere presence in the vicinity of the fire.   The evidence, however, as with the December 31, 2009 fire, included circumstantial evidence from which a reasonable inference of guilt could be drawn.   Pope testified that appellant went to Pope's house looking for Willis.   Pope told appellant to look for Willis at the home of Alma Williams—the woman with whom appellant believed Willis was having a romantic relationship.   Steven Cleveland testified that appellant came to his house on January 23, 2010, between approximately 12 and 3 p.m., and told him “the lady with the green Taurus had told on him, and he was ․ going to handle his business later on.”   Steven recalled that appellant wore a leather jacket and jeans.   Steven's sister, Jacqueline, testified that when appellant came to her brother's house he wore glasses and a stocking cap.   Annie Cleveland, Steven's mother, testified that she saw a suspicious man wearing a leather jacket, dark rimmed glasses, and a black cap walk behind Williams's house at approximately 3 p.m. The man stopped to lift the lid of a nearby trash can.   Annie Cleveland also testified that when the man went behind the house, he had what looked like a brown bag in one hand and a white bag in the other.   The man was not carrying either bag when Annie Cleveland saw him walking down the street several minutes later.   Cleveland saw a white puff of smoke coming from the back of Williams's house shortly after the man left.   Both Annie Cleveland and her son gave written statements to the fire investigator later that day.

As the sole judge of a witness's credibility and the weight of the testimony, the jury may choose to believe or disbelieve all or any part of a witness's testimony.   See Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App.2008).   The jury was also free to resolve conflicts in testimony, and having done so, the jury could rationally find all of the essential elements of arson of a habitation

beyond a reasonable doubt—for both the December 31, 2009 and January 23, 2010 fires.   Therefore,

viewed under the appropriate standard, the evidence is sufficient to support the jury's verdict.   We overrule appellant's first and second points of error.

Motion for Mistrial

In his third point of error, appellant argues the trial court abused its discretion by not granting a mistrial because evidence of an extraneous offense was introduced at the guilt-innocence phase of the trial.   The alleged reference to the extraneous offense occurred during the trial testimony of Alma Williams, and the relevant portion of the record reads as follows:

Q. [DEFENSE COUNSEL:] And you say you didn't know of a Kenneth Willis;  is that correct?

A. [WILLIAMS:] No, I did not.

Q. And can you see the man over here in the yellow shirt?

A. Yes, I do.

Q. Have you ever seen this man before?

A. First time I saw him was when I pulled the mug shot up on the—

[DEFENSE COUNSEL:] I'm sorry, Judge, I'm going to object.   Has she seen him, not a picture?

THE COURT:  Yeah, ma‘am, I—

A. [WILLIAMS:] Okay.

THE COURT:  You can only answer the questions that are asked.

At this time, the jury's going to disregard that, okay.   And this time, if you—you can't consider it—don't consider it.   You just forget.

Ma‘am, you've got to pay attention to the question as it is asked and only answer that question, okay?

A. [WILLIAMS:] All right.

At the conclusion of Williams's testimony, out of the jury's presence, defense counsel moved for a mistrial:

[DEFENSE COUNSEL]:  Judge, I objected to and you sustained and admonished the jury to disregard the testimony of Ms. Williams concerning a mug shot.   I'd ask for a mistrial based on the fact that a mug shot indicates that he has been arrested before.   These people on the jury know what a mug shot is.   That violates the motion in limine.   They now know, through her testimony, that he's been arrested.   At least they don't know anything—anything further than that, but I think that's enough to, in fact, violate the motion in limine that we talked about before trial.

THE COURT:  All right.   I—I mean, I admonished them and it could have been he got arrested and—in this case and they just showed him [sic] a picture.   We don't know.   I'm going to deny the motion for a mistrial, but I think that the admonishment I gave them is certainly enough.

[DEFENSE COUNSEL]:  Note our exception, please.

THE COURT:  Noted.

We review a trial court's ruling on a motion for mistrial for an abuse of discretion and uphold the court's ruling if it was within the zone of reasonable disagreement.  Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App.2007).   A mistrial is appropriate only for highly prejudicial and incurable errors.  Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003).  “A mistrial is the trial court's remedy for improper conduct that is ‘so prejudicial that expenditure of further time and expense would be wasteful and futile.’ ”  Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999)).  “Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.”  Hawkins, 135 S.W.3d at 77.  “The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case.”  Ladd, 3 S.W.3d at 567.   In most instances, an instruction to disregard will cure the prejudicial effect.   Wesbrook v. State, 29 S.W.3d 103, 115–16 (Tex.Crim.App.2000);  Wilkerson v. State, 881 S.W.2d 321, 327 (Tex.Crim.App.1994).  “Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding extraneous offenses.”  Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App.2000);  see also Young v. State, 283 S.W.3d 854, 878 (Tex.Crim.App.2009) (“A witness's inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard”).   “It is well-settled that testimony referring to or implying extraneous offenses can be rendered harmless by an instruction to disregard by the trial judge, unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind.”  Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App.1992).

Appellate courts “generally presume the jury followed the trial court's instructions in the manner presented.”  Thrift v. State, 176 S.W.3d 221, 224 (Tex.Crim.App.2005).  “The presumption is refutable, but the appellant must rebut the presumption by pointing to evidence the jury failed to follow the trial court's instructions.”  Id. Thus, appellant must either rebut the presumption that the jury followed the trial court's instruction or successfully argue it would be impossible to remove the harmful impression from the jury's mind.   See Thrift, 176 S.W.3d at 224;  Kemp, 846 S.W.2d at 308;  see also Howell v. State, No. 05–10–01184–CR, 2012 WL 1403242, *5 (Tex.App.—Dallas April 24, 2012, no pet.) (not designated for publication).

In this case, appellant argues that Williams's reference to appellant's “mug shot” was a “concrete reference to an extraneous offense on which she had obviously done some independent research.”   Appellant also contends the trial court's instruction to the jury to disregard the remark was insufficient to cure the resulting harm, and that a mistrial should have been granted.

We find no abuse of discretion by the trial court.   There is nothing in the record to indicate that Williams's brief reference to the “mug shot,” which was in response to a question posed by defense counsel on cross-examination as to whether Williams had ever before seen appellant, was anything other than inadvertent.   Nor is there anything in Williams's testimony to suggest her passing reference to the “mug shot” was calculated to inflame the minds of the jurors.   The court's prompt instruction for the jurors to disregard the witness's statement was sufficient to cure any prejudicial effect.   We overrule appellant's third point of error.

We affirm the trial court's judgments.

LANA MYERS

JUSTICE

Do Not Publish

Tex.R.App. P. 47

110471F.U05

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

KENNETH LEE WILLIS, Appellant

No. 05–11–00471–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 282nd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–71098–S).

Opinion delivered by Justice Myers, Justices Morris and Moseley participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 10, 2012.

/Lana Myers/

LANA MYERS

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

KENNETH LEE WILLIS, Appellant

No. 05–11–00472–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 282nd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–71183–S).

Opinion delivered by Justice Myers, Justices Morris and Moseley participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 10, 2012.

/Lana Myers/

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

KENNETH LEE WILLIS, Appellant

No. 05–11–00473–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 282nd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–71236–S).

Opinion delivered by Justice Myers, Justices Morris and Moseley participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 10, 2012.

/Lana Myers/

LANA MYERS

JUSTICE

FOOTNOTES

FN1. Cause number 05–11–000471–CR;  trial court cause number F10–71098–S..  FN1. Cause number 05–11–000471–CR;  trial court cause number F10–71098–S.

FN2. Cause numbers 05–11–00472–CR and 05–11–00473–CR;  trial court cause numbers F10–71183–S and F10–71236–S..  FN2. Cause numbers 05–11–00472–CR and 05–11–00473–CR;  trial court cause numbers F10–71183–S and F10–71236–S.

FN3. Willis testified that she worked part-time as a security guard..  FN3. Willis testified that she worked part-time as a security guard.

FN4. Steven Cleveland was facing two felony charges at the time of the trial.   Those charges were brought against Steven sometime after January 23, 2010.   Steven gave a written statement to the fire investigator on January 23, after the fire..  FN4. Steven Cleveland was facing two felony charges at the time of the trial.   Those charges were brought against Steven sometime after January 23, 2010.   Steven gave a written statement to the fire investigator on January 23, after the fire.

FN5. Steven's sister, Jacqueline Cleveland, testified that she answered the door when appellant knocked, not her brother, and that the man who knocked on the door on January 23, 2010 wore eye glasses and a “beanie” stocking cap..  FN5. Steven's sister, Jacqueline Cleveland, testified that she answered the door when appellant knocked, not her brother, and that the man who knocked on the door on January 23, 2010 wore eye glasses and a “beanie” stocking cap.

FN6. Williams testified that, at the time of the fire, she drove a green 2006 Taurus..  FN6. Williams testified that, at the time of the fire, she drove a green 2006 Taurus.

FN7. Nichols explained his reasoning as follows:Well, we call it incendiary.   It was arson.   There's just no way that you can have two separate fires at one location without a form of communication, what we call communication between each other.   I could not figure out how the fire that was inside could set fire to the—to that trash can without doing a lot of damage above it, and vice versa.   That I couldn't figure out a way that the trash can could burn in and do the damage to the couch that it did.   That I had two separate fires going here, and that's not natural..  FN7. Nichols explained his reasoning as follows:Well, we call it incendiary.   It was arson.   There's just no way that you can have two separate fires at one location without a form of communication, what we call communication between each other.   I could not figure out how the fire that was inside could set fire to the—to that trash can without doing a lot of damage above it, and vice versa.   That I couldn't figure out a way that the trash can could burn in and do the damage to the couch that it did.   That I had two separate fires going here, and that's not natural.

LANA MYERS JUSTICE