Appeal from the 323rd District Court Tarrant County,
Texas Trial Court Case No. 323-106412-17
consists of Justices Keyes, Kelly, and Goodman.
V. Keyes Justice.
X.D., a juvenile, appeals the trial court's finding that
he engaged in delinquent conduct by committing the penal
offense of arson. In two issues, X.D. contends that the
evidence identifying him as the perpetrator of the arson is
insufficient to support the trial court's judgment, and
the trial court erred in admitting impermissibly suggestive
photo array evidence.
morning of Friday, December 1, 2017, just before the 8:10
bell was to ring to begin the school day, the fire alarm
sounded at Irma Marsh Middle School in Castleberry
Independent School District in River Oaks, Texas. Assistant
Principals Arnulfo Martinez and Ruben Brown saw that smoke
was filling the first-floor sixth-grade hallway. After acting
to ensure that the building was fully evacuated, they
returned to the sixth-grade hallway in search of the source
of the smoke.
and Brown discovered a fire burning in the sixth-grade
boys' bathroom. Martinez observed that "what looked
like a toilet paper roll" had been placed underneath the
partition of a handicap stall and lit on fire. The fire had
spread to the partition and toilet paper dispenser, and then
to the handicap railing inside the stall.
and Brown described the fire as "intense" and the
smoke as "thick," so much so that they had
difficulty breathing. Martinez put the fire out with a fire
extinguisher. Afterwards, he had a headache and some
difficulty breathing, and Brown's "back began to
burn quite a bit" and he felt "really
lightheaded" and "faint."
Rehfeld, a fire investigator with the Tarrant County Fire
Marshal, was dispatched to the school to investigate. He
testified that he arrived on the scene around 8:30 or 9:00
a.m. to discover burned sanitary napkin pads, a burned toilet
paper roll, and a melted plastic toilet paper roller in the
handicap stall of the boys' bathroom. Rehfeld gave school
administrators a "wanted poster" and asked them to
display it. According to Rehfeld, the fire was caused by a
person or persons connecting an open flame with a combustible
Tony Provencio, Castleberry I.S.D. Police Department Chief of
Police, also testified as to the events of the morning of
December 1, 2017. He stated that he was notified at 8:14 a.m.
that the school's fire alarm had sounded. When he arrived
on the scene, he learned that the fire had been extinguished.
He did not enter the building because it was too dark with
smoke, and "inhaling that was kind of too much without
equipment." After confirming that everyone was out of
the building and the fire department had been called,
Provencio spoke with Martinez and Brown, who relayed the
events of the morning. Because there were no leads at that
time, Provencio left the scene.
after the students returned to the school building, written
and verbal statements about the cause of the fire began to
"flood" in. Of the approximately 100 student
statements submitted that day, Martinez and Brown found only
two- written by sixth-grade students I.R. and M.R.-to be
statement, I.R. wrote that earlier that morning, before
classes had begun, she and M.R. went to the sixth-grade
girls' bathroom. On leaving, they "were walking and
[they] saw [X.D.] and [J.M.]" The girls "watched
[X.D.] light the lighter," and then they "ran"
to class. "[T]hen 5 seconds later the fire alarm went
of[f] and we had to go outside but when we were leaving the
theater room we saw [X.D.] run[.] [H]e lit a fire
wrote that she was with I.R., G., and G.'s friend outside
the sixth-grade bathrooms when she saw X.D. in the boys'
bathroom with "a lighter in his hand." X.D. was
there with J.M. and "they both had paper rolled up and
the light turned on and it burned[. S]o me and [I.R.] ran
back to class and when I was going to tell [the teacher] the
fire alarm went off." She added, "They lit up fire
crackers[. T]hey pop loud."
days later, I.R. wrote a second statement. In it, she stated
that she and M.R. "were walking out [of the girls'
bathroom] when we heard laughing and we went to head to class
and we looked inside [the boys' bathroom] to see what was
happening so then we saw [X.D.] and [J.M.]. [X.D.] had the
lighter . . . and [J.M.] was saying light it up light it
light it and it was a purple paper . . . and we walked away
and like 5 seconds later there was a fire drill."
same day, a school administrator contacted Officer Provencio
to inform him that I.R. and M.R. had witnessed the incident.
Provencio went to the school to investigate. After reviewing
their written statements, he interviewed I.R. and M.R. each
separately. Provencio testified that he found them both to be
credible and that their verbal accounts of the incident
corroborated their written statements.
Provencio testified that he then prepared a photo array to
administer to I.R. and M.R. The seven photos Provencio
selected for the array included four former and current
students within Castleberry I.S.D. as well as X.D. and J.M.,
and another Irma Marsh Middle School student, A.G., who had
been rumored to have been involved. Provencio testified that
he determined that A.G. was not involved in starting the fire
before including him in the array.
Provencio stated that, in selecting the photos, he
"tried to make it to where some of these even appear to
look like the suspects." And he explained that he chose
seven photographs for the array because that was the standard
number, based on his past experience. When asked why he put
both of the suspects in the array, Provencio answered that he
thought that the possibility that the witnesses would
identify "one and not another" would make it
"a lot harder."
Provencio testified that he asked Assistant Principal Brown
to conduct the identification procedure. When defense counsel
asked why he did not conduct it himself, Provencio explained
that he did not want to "make it seem like [he] was
trying to influence the witnesses to point out the
suspects" and that he felt it would be better for I.R.
and M.R., because of their age, if it was conducted by
someone with whom they felt comfortable.
December 6, Brown, after being given "specific
instructions" by Officer Provencio, presented the photo
array to I.R. and M.R. Brown met with each girl separately.
Both witnesses identified the individuals in place number
seven (X.D.) and place number four (J.M.) as the perpetrators
of the arson. They also filled out school district photo
lineup forms, on which they indicated that the individuals in
place numbers four and seven had committed the crime. In the
space on the form where the witnesses were asked to state
their level of certainty, I.R. wrote "I'm pretty
sure but not 100% sure," and M.R. wrote "I'm
100% sure it is number 7. And I kind of think it's
Provencio testified that shortly after I.R. and M.R.
identified X.D. from the photo array, he arrested X.D. During
its direct examination of Provencio, the State offered the
photo array as Exhibit 27, M.R.'s photo lineup form as
Exhibit 28, and I.R.'s photo lineup form as Exhibit 29
("the photo array evidence") into evidence. Counsel
for X.D. objected:
I'm going to object, Your Honor. They're improper
photo lineups. They weren't done correctly. They're
not supposed to have seven people. You're not supposed to
have multiple people [suspects] in the same lineup. So
I'm going to object to anything as far as the photo
trial court admitted the exhibits.
also testified at trial. She stated that on the morning of
the fire, she and M.R. visited the bathroom before class was
to begin. They saw two boys standing behind something in the
boys' bathroom and heard "a lot of laughter"
One of the boys was J.M. One boy had a lighter and the other
had a purple paper. "They were lighting the paper,"
and she saw the paper catch fire. She and M.R. then went to
their classroom, where they heard the fire alarm sound.
that day, I.R. and several other students, including M.R.,
"went to the office and wrote the statement." I.R.
testified that M.R. told her to write the color of the paper
because at the time she didn't remember that it was
purple. When asked whether she had written anything untrue in
her December 1 statement, she answered, "The fire
further testified that she told a police officer that X.D.
and J.M. started the fire and that she identified X.D. from
the photo array as one of the boys who started the fire. She
also explained that she had written "pretty sure but not
a hundred percent" on her photo lineup form
"[b]ecause [she] didn't remember." And she
stated that Officer Provencio told her about a reward for
information, but that she "didn't want the
cross-examination, I.R. testified that she knew J.M. but not
X.D. She did not remember telling "the DAs" that
there were four boys in the bathroom but stated that there
could have been four. She did not remember saying that X.D.
was holding the lighter, but ...