Joaquin Banda v. State ( 2005 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Joaquin Banda

Appellant

Vs.                   No. 11-04-00109-CR -- Appeal from Comanche County

State of Texas

Appellee

Joaquin Banda appeals his conviction by a jury of the offense of arson of a habitation. The jury assessed his punishment at 10 years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000.  The jury recommended probation of the confinement and fine.  Accordingly, the trial court placed Joaquin on community supervision for a term of 10 years.  Joaquin contends in 6 issues that the evidence is factually insufficient to support his conviction and that the trial court erred in excluding evidence of insurance coverage on the house that was burned and in excluding evidence of a suspicious structure fire that had occurred near the burned residence.   We affirm.

Joaquin contends in issue six that the evidence is factually insufficient to support his conviction.  In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. See Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App. 2004).

Angel Banda, Joaquin=s brother, testified that Joaquin started living with him and his family in January or February 2002 because Joaquin said that he was out of a job and could not find one.  Angel indicated that he assigned Joaquin the bedroom to the left at the top of the stairs. He acknowledged that prior to October 14, 2002, Joaquin started staying in the room downstairs that had been made into a barroom.  Angel stated that he did not know why Joaquin started staying downstairs.

Angel testified that on the afternoon of October 14, 2002, he went into the barroom to board up a broken window when he discovered a shotgun on the couch.  He said that he was upset because it was accessible to his young children.  He indicated that, when he contacted his brother by telephone, his brother told him that the shotgun was fine where it was.  He related that at that time he asked for his key back and told his brother to get his stuff out.  He stated that he went to his mother=s house and had basically the same conversation with his brother in person.

Angel testified that, at 9:27 p.m., he called his mother=s house and told someone there to tell Joaquin to come get his stuff.  He said that he arrived home about 9:30 p.m. and told his wife that Joaquin was coming to move his stuff.  He related that he thought Joaquin showed up about 9:35 or 9:40 p.m., right after he got home.  He indicated that Joaquin was accompanied by their sister.  He stated that, after arriving, Joaquin started getting his stuff out of the house. 

Angel testified that Joaquin and their sister made several trips elsewhere to unload Joaquin=s belongings.  Angel said that about 10:15 p.m., a friend, Charles Kolb, arrived to return an extension cord he had borrowed.  He indicated that he, his wife, and Kolb stayed in the kitchen talking. He stated that they were still in the kitchen and were still visiting at 10:30 p.m. when Joaquin left for the last time. Angel indicated that he knew when Joaquin left because he saw someone run down the stairs.  He emphasized that during Athis period of time@ he never saw anyone else except Joaquin go upstairs. He also indicated that he had not gone upstairs prior to the discovery of the fire and was not aware of anyone else having done so.

Angel testified that, after Joaquin left, Kolb started smelling smoke.  Angel indicated that,  they then began looking for a fire.  He said that, when he ran upstairs to look, he saw an orange glow and saw that there was a fire there.  He related that the orange glow was in the room that his brother had been in.  He stated that Kolb called the fire department.

Brenda Banda, Angel=s wife, testified that she let Joaquin into the house around 9:30 p.m. on October 14, 2002.  She said that he told her he had come to get his things.  She stated that Kolb had come to the house about 10:00 p.m. or maybe a little after.  She indicated that she had seen Joaquin going up and down the stairs.  She insisted that she had not seen anyone else come into the house.  She acknowledged that she did not believe Joaquin went back upstairs after coming down to get his food out of the kitchen just before leaving.

Brenda testified that, after Joaquin left, she smelled something like wood burning.  She said that Angel went up the stairs, felt the door, and said that it was hot.  She indicated that she did not at anytime see anyone besides Joaquin go upstairs and that she would have known if Angel or Kolb had gone upstairs.  She acknowledged that Joaquin did not have any cans, bottles, or other containers with him when he arrived at the house.  She stated that he was a little upset.  She acknowledged that, when Joaquin left the house, she did not see him run down the stairs.  As previously noted, she testified that he had been in the kitchen just before he left.

Kolb testified that, when he came to the house on the evening in question, he did not see anyone else inside the house other than Angel, Brenda, and Joaquin.  He said that, to the best of his memory, he was in the presence of Angel and Brenda at all times after he arrived at the house and that he never saw either of them go upstairs.  He estimated that he had been there about 30 minutes before discovering the fire.

Sam Walter Cunningham testified that he was the fire chief for the City of Comanche.  He indicated that the alarm for the fire went out at 10:40 p.m.  He said that, when he arrived at the scene, he saw a glow and light smoke in the upstairs window in front.

Kevin Burch testified that he is the city fire marshal for Comanche.  He indicated that his main duty as fire marshal is to investigate all fires within the city limits of Comanche.  He stated that Angel told him his brother had set the fire. He said that Angel told him how Joaquin had gone upstairs and moved all his stuff out, that no one else had been up there, and then described how they had discovered the fire.  Burch related that he had observed two separate areas of fire damage, which, he concluded, meant that each fire had been started independently of the other.  He indicated that there was both a lighter and a book of matches in the room when he first went into it the night of the fire.

Burch testified that, because he did not have certification as an arson investigator at the time of the fire, he contacted the state fire marshal=s office to assist in the investigation. He acknowledged that he never considered Angel as a suspect in the case because he had no reason to suspect him. He acknowledged that the only evidence he had to connect Joaquin to the fire were the statements of Angel, Brenda, and Kolb.

Clint Williams testified that he was a deputy state fire marshal who conducts investigations to determine whether fires are accidentally or intentionally set.  He said that he arrived at the scene of the fire in question on the morning after the fire.  He indicated that, based upon his investigation, there were three separate fires.  He concluded that, in the area of one of the fires, it appeared that something was poured on the floor area.  He said that tests were inconclusive with respect to the presence of an accelerant.  He said, however, that, based upon his experience and training, the fires were intentionally started.  He acknowledged that he found no physical evidence indicating who started the fire.  He said that he did not attempt to take fingerprints from items in the room because it would have been meaningless to take fingerprints from Joaquin=s room.

Erminia Banda testified that she was Angel and Joaquin=s sister.  She said that, on the evening in question, she got a call to assist Joaquin. She indicated that she found him on foot carrying his jacket.  She stated that she took him back to Angel=s house.  She said that Joaquin went in to get his stuff.  She indicated that, as far as she knew, he did not have anything with him that he could use to start a fire.  She related that they made three or four trips to his mother=s with his belongings.  She stated that, in her opinion, Joaquin is a peaceful person and not a law breaker.  She said that her brother Angel is a liar.  She acknowledged that Joaquin told her he had been upstairs.  She said that, when he left the house, Joaquin did not appear unduly excited.  Maria Esquerdo, the mother of Joaquin and Angel, testified that Angel is not very truthful.

Joaquin testified that, on the day of the fire, he was visiting his mother when Angel called and asked him what he was doing there.  He said that he did not recall Angel saying anything about a gun.  He stated that Angel came over and demanded his key but did not mention anything about a gun.  He indicated that he went to get his stuff after Angel called his mother=s house and said that, if he did not come get it, it would be thrown out into the street.  He denied setting the fire, saying that he did not know who did.  He acknowledged having a shotgun in the house that Angel did not know about.  He said that he was Apretty positive@ he had told Brenda about it.  He stated that he had not seen any signs of the fire when he left.  He acknowledged that he left without telling anyone.

We hold that the evidence is factually sufficient to support Joaquin=s conviction because it is not so weak that the verdict is clearly wrong and manifestly unjust nor is there any contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met.  Joaquin=s suggestion that there are just as many circumstances establishing Angel=s guilt as circumstances establishing his guilt does not withstand scrutiny inasmuch as there is evidence showing that only Joaquin and not anyone else, including Angel, had been upstairs prior to the start of the fire.  We overrule issue six. 

Joaquin suggests in issues one through four that the trial court abused its discretion by not allowing him to introduce evidence showing that Angel had insurance on his house and that he collected on a claim that he made after the fire.  We agree with the State that such evidence, even if relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.  TEX.R.EVID. 403.  Inasmuch as most homeowners would have their house insured for fire and present a claim in the event of a fire, mere evidence that Angel had his house insured for fire and collected on a claim after the fire is of little probative value to establish that Angel, not Joaquin, started the fire.  Such evidence, however, carries the danger of unfair prejudice, confusion of the issues, or misleading the jury.  We hold, therefore, that the trial court could reasonably have determined that the probative value of this evidence was substantially outweighed by such a danger. 

Joaquin urges that the exclusion of the evidence prevented him from exposing a motive, bias, or interest for the witness to testify, relying on the case of Carroll v. State, 916 S.W.2d 494 (Tex.Cr.App.1996).  In Carroll, the court held that the constitutional right of confrontation is violated when appropriate cross-examination is limited.  Id. at 497.  It held that, within the broad scope of appropriate cross-examination, is questioning concerning criminal charges pending against a witness and over those which those in need of the witness=s testimony might be empowered to exercise control.  Id. at 498.  The court subsequently cited authority from the United States Supreme Court to the effect that the trial court might exercise discretion to prevent prejudice or confusion of the issues.  Id. We do not find the opinion in Carroll to be inconsistent with this opinion. 

Joaquin also argues that the exclusion of this evidence denied him due process by preventing him from presenting a defense.  He refers us to the case of Wiley v. State, 74 S.W.3d 399 (Tex.Cr. App.2002), suggesting that this case is distinguishable. 

In Wiley, the appellant was convicted of arson in connection with the burning of his own business.  As in this case, the appellant tried to introduce evidence suggesting that someone else might have started the fire, but the evidence presented amounted to no more than unsupported speculation.  Id. at 408.  The court upheld the trial court=s exclusion of such evidence based upon Rule 403, absent proof that the alternative perpetrator committed some act directly connecting him or her to the charged offense.  Id. at 406.  Subsequently, after noting that such evidence could not withstand the Rule 403 balancing test because its probative value was slight and it presented a great threat of confusion of the issues, the court stated that it also presented a threat of Aunfair prejudice@ by inviting the jury to blame an absent, unrepresented, incompetent person for an arson when there was not a scintilla of evidence that he was actually involved.  Id. at 407. 

Based upon this language, Joaquin suggests that Wiley is distinguishable because Angel and Brenda were present before the court as the primary complaining witnesses. Having considered the entire opinion in Wiley, we see nothing that would lead us to the conclusion that the trial court=s ruling would have been different if the alternative perpetrator had been a complaining witness.  We believe that Wiley strongly supports our opinion.  We overrule issues one, two, three, and four.   

Joaquin suggests in issue five that the trial court erred by omitting evidence of an unsolved arson case occurring within three months of the fire for which he was being tried and within four blocks of that location.  He does not suggest that there was any evidence showing that any individual who might have started the nearby fire had any connection with the fire for which he was being tried.  This is merely an effort to establish an alternative perpetrator defense with an anonymous alternative perpetrator.  For the same reasons that we upheld the trial court=s exclusion of such evidence with respect to insurance, we uphold the trial court=s exclusion of this evidence.  We overrule issue five. 

The judgment of the trial court is affirmed.

PER CURIAM

March 10, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

McCall, J., and Hill, J.^[1]

---

^[1]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.