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In re X.D.

Court of Appeals of Texas, First District

July 25, 2019


          On Appeal from the 323rd District Court Tarrant County, [1] Texas Trial Court Case No. 323-106412-17

          Panel consists of Justices Keyes, Kelly, and Goodman.


          Evelyn V. Keyes Justice.

         Appellant, 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.

         We affirm.


         On the 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.

         Martinez 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.

         Martinez 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."

         Michael 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 material.

         Officer 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.

         Shortly 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 credible.

         In her 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.]"[2] 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 cracker."

         M.R. 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."

         Three 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."

         That 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.

         Officer 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.

         Officer 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."

         Officer 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.

         On 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 4."

         Officer 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 lineup goes.

         The trial court admitted the exhibits.

         I.R. 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.

         Later 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 cracker."

         I.R. 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 money."

         On 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 ...

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