                                                                           ACCEPTED
                                                                       03-15-00209-CR
                                                                               8422572
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                12/31/2015 12:01:31 PM
                                                                     JEFFREY D. KYLE
                                                                                CLERK


                    NO. 03-15-00209-CR
            _________________________________    FILED IN
                                          3rd COURT OF APPEALS
                                              AUSTIN, TEXAS
                       IN THE            12/31/2015 12:01:31 PM
             COURT OF APPEALS FOR THE       JEFFREY D. KYLE
          THIRD JUDICIAL DISTRICT OF TEXAS        Clerk
                       AT AUSTIN
            _________________________________

              DEANDRE DWIGHT JOSEPH

                            V.

                  THE STATE OF TEXAS
            _________________________________

              Appealed from the District Court
                  of Travis County, Texas
                   403rd Judicial District
              Cause Number D-1-DC-15-904009
            _________________________________

             REPLY BRIEF FOR APPELLANT
            _________________________________




                                       Randy Schaffer
                                       State Bar No. 17724500

                                       1021 Main, Suite 1440
                                       Houston, Texas 77002
                                       (713) 951-9555
                                       (713) 951-9854 (facsimile)
                                       noguilt@swbell.net

                                       Attorney for Appellant
ORAL ARGUMENT REQUESTED                DEANDRE DWIGHT JOSEPH
                                              SUBJECT INDEX

                                                                                                                   Page

ISSUE ONE ......................................................................................................      1

         THE EVIDENCE IS LEGALLY INSUFFICIENT TO
         SUSTAIN    APPELLANT’S   CONVICTION   FOR
         AGGRAVATED ASSAULT BECAUSE HE DID NOT USE
         OR EXHIBIT A DEADLY WEAPON BY WETTING THE
         COMPLAINANT WITH GASOLINE.

ISSUE TWO .....................................................................................................       3

         THE TRIAL COURT REVERSIBLY ERRED IN REFUSING
         TO INSTRUCT THE JURY ON THE LESSER INCLUDED
         OFFENSE OF ASSAULT.

ISSUE THREE ..................................................................................................        6

         THE EVIDENCE IS LEGALLY INSUFFICIENT TO
         SUSTAIN    APPELLANT’S  CONVICTION     FOR
         ATTEMPTED ARSON OF A HABITATION BECAUSE
         HE DID NOT HAVE THE SPECIFIC INTENT TO SET
         FIRE TO THE HABITATION.

CONCLUSION .................................................................................................          7

CERTIFICATE OF SERVICE .........................................................................                      7

CERTIFICATE OF COMPLIANCE ................................................................                            8




                                                            i
                                        INDEX OF AUTHORITIES

                                                          Cases                                                        Page

Brister v. State, 449 S.W.3d 495 (Tex. Crim. App. 2014) ....................................                              2

Chavez v. State, 740 S.W.2d 21 (Tex. App.—El Paso 1987, no pet.)..................                                        5

Cody v. State, 605 S.W.2d 271 (Tex. Crim. App. 1980) ......................................                               6

Ellis v. State, 2004 WL 177851 (Tex. App.—Fort Worth 2004, pet. ref’d) ........                                           1

Nash v. State, 115 S.W.3d 136 (Tex. App.—Texarkana 2013, no pet.)...............                                          5

Pruett v. State, No. 02-14-00222-CR (Tex. App.—Fort Worth, December 10,
                2015) ..............................................................................................      2

Williams v. State, 946 S.W.2d 432 (Tex. App.—Fort. Worth 1997) pet. ref’d,
                  970 S.W.2d 566 (1998) ............................................................                      2




                                                              ii
                                     ISSUE ONE

             THE EVIDENCE IS LEGALLY INSUFFICIENT TO
             SUSTAIN APPELLANT’S CONVICTION FOR
             AGGRAVATED ASSAULT BECAUSE HE DID
             NOT USE OR EXHIBIT A DEADLY WEAPON BY
             WETTING    THE    COMPLAINANT     WITH
             GASOLINE.

      Appellant contends that the evidence is legally insufficient to sustain his

conviction for aggravated assault because he did not use or exhibit a deadly

weapon by wetting Jillian Higgins with gasoline, as unignited gasoline poured on a

person is not capable of causing death or serious bodily injury.

      The State criticizes appellant for relying on a dictionary definition instead of

the penal code definition of “weapon.” State’s Brief at 27. The penal code defines

“deadly weapon” but not “weapon.” Appellant cited the dictionary to illustrate the

difference between a “weapon” and an “accelerant.” To be clear, he contends that

the unignited gasoline in this case is not a “deadly weapon” under the penal code

definition because it is not capable of causing death or serious bodily injury in the

manner of its use or intended use.

      The State asserts that unignited gasoline is a deadly weapon because it can

be ignited by a cigarette butt. State’s Brief at 27. It relies on Ellis v. State, 2004

WL 177851 *3 (Tex. App.—Fort Worth 2004, pet. ref’d) (not designated for

publication), which held that unignited gasoline is a deadly weapon where the

defendant threw it on the complainant and threatened to set her on fire with a
                                          1
lighter. However, the Second Court of Appeals retreated from this position in

Pruett v. State, No. 02-14-00222-CR (Tex. App.—Fort Worth, December 10,

2015). Pruett set fire to a house. By the time the fire department arrived, a

neighbor had put out part of the fire with a garden hose, and the remaining fire had

“played out” into the yard and was “burning down.” There was no evidence that

the neighbor or the firefighters were in actual danger of death or serious bodily

injury. Pruett was convicted of arson. The court entered an affirmative finding in

the judgment that the fire was a deadly weapon. The court of appeals held that the

evidence was legally insufficient to sustain the deadly weapon finding, focusing on

what happened rather than on what could have happened. If fire is not a deadly

weapon where no one was placed in actual danger of death or serious bodily injury,

then unignited gasoline is not a deadly weapon. The unignited gasoline was not a

deadly weapon in applicant’s case based on what happened rather than on what

could have happened.1

       The State also asserts that the evidence established that “appellant’s manner

of use and intended use of the gasoline was to ignite it and cause serious bodily

injury or death to Higgins, as he threatened.” State’s Brief at 28. To the contrary,

       1
          A motor vehicle is capable of causing death or serious bodily injury. Some cases have
held that a motor vehicle is not a deadly weapon under the particular facts. See Williams v.
State, 946 S.W. 2d 432, (Tex. App.—Fort Worth 1997), pet. ref’d, 970 S.W. 2d 566 (1998);
Brister v. State, 449 S.W. 3d 490, 495 (Tex. Crim. App. 2014). If a motor vehicle is not a deadly
weapon in all circumstances, even though it is capable of causing death or serious bodily injury
(especially to the driver if he is intoxicated), then unignited gasoline is not a deadly weapon in all
circumstances.
                                                  2
appellant poured gasoline on Higgins in an attempt to get her to help him contact

his former girlfriend, Rosalie Miller. He had ample opportunity to set a fire during

the two hours that they were in her room but did not do so. Thus, the evidence is

legally insufficient to sustain his conviction for aggravated assault because the

unignited gasoline was not a deadly weapon in the manner in which he used or

intended to it.

                                   ISSUE TWO

             THE TRIAL COURT REVERSIBLY ERRED IN
             REFUSING TO INSTRUCT THE JURY ON THE
             LESSER INCLUDED OFFENSE OF ASSAULT

      Appellant contends that the trial court reversibly erred in refusing to instruct

the jury on the lesser included offense of assault. The State asserts that the issue

was not preserved for appellate review because trial counsel agreed with the

court’s comment that the evidence did not show that appellant was guilty only of

assault. State’s Brief at 28-29. The State takes counsel’s statement out of context.

      The charge conference commenced with counsel requesting jury instructions

on terroristic threats, deadly conduct, assault, and criminal mischief (7 R.R. 245).

The court asked him to explain what evidence demonstrated that appellant was

guilty of each offense. Counsel responded that appellant committed an assault by

pushing the complainant on the bed. The court responded that there was no




                                          3
evidence to indicate that, “if guilty, he is only guilty of that offense,” without

specifying the offense. Counsel responded as follows (7 R.R. 245-46):

             That is correct. However, I am saying that it is possible
             given the evidence that the jury can find there was no
             intent either to light the gasoline, ignite the gasoline, in
             which case there wouldn’t be—or they could have
             reasonable doubt whether or not he intended to light the
             gasoline and attempt an arson or whether or not he
             intended to use the gasoline as a deadly weapon.

             It’s our contention, it’s our theory of the case that what
             he was doing was frightening Jillian Higgins and
             attempting to control her in order to obtain some way of
             getting back in touch with his former girlfriend.

The court ultimately denied all the requested instructions (7 R.R. 247). Thus, the

State takes out of context counsel’s statement, “That is correct,” in asserting that he

agreed with the court that there was no evidence that appellant was guilty only of

assault. To the contrary, counsel explained different scenarios in which appellant

would be guilty of assault rather than aggravated assault. Thus, the issue was

preserved for appellate review.

      The State also asserts that there was no evidence that appellant was guilty

only of assault because “no rational jury could conclude that appellant merely

meant to frighten Higgins.” State’s Brief at 32. There is no factual or legal basis

for this assertion. An arson investigator testified that appellant intended to scare

Higgins rather than start a fire (7 R.R. 189). Indeed, had appellant intended to set



                                          4
fire to Higgins or the house, he had ample opportunity to do so. That he did not

suggests that his intent was to scare Higgins to reveal information about Miller.

      The State does not mention the cases cited by appellant which held that it is

error to refuse to instruct the jury on a lesser included offense where there is a fact

question whether the object used was a deadly weapon. See Chavez v. State, 740

S.W. 2d 21, 23 (Tex. App—El Paso 1987, no pet.); Nash v. State, 115 S.W. 3d

136, 139 (Tex. App—Texarkana 2013, no pet.). The State asserts that appellant

must “positively and affirmatively present evidence upon which a rational jury

could find that gasoline was not a deadly weapon.” State’s Brief at 33. The State

ignores that the jury could have concluded from the arson investigator’s testimony

or the cross-examination of Higgins that the unignited gasoline was not capable of

causing death or serious bodily injury in the manner of its use or intended use. If

the jury believed that appellant threatened Higgins but that unignited gasoline, in

the manner of its use or intended use, was not a deadly weapon, then he would be

guilty only of assault by threats. Thus, the evidence raised the lesser included

offense of assault, and the trial court erred in refusing the instruction.




                                            5
                                        ISSUE THREE

              THE EVIDENCE IS LEGALLY INSUFFICIENT TO
              SUSTAIN APPELLANT’S CONVICTION FOR
              ATTEMPTED ARSON OF A HABITATION
              BECAUSE HE DID NOT HAVE THE SPECIFIC
              INTENT TO SET FIRE TO THE HABITATION.

       Appellant contends that the evidence is legally insufficient to sustain his

conviction for attempted arson of a habitation because he did not have the specific

intent to set fire to the habitation.

       The State asserts that the evidence was sufficient under Cody v. State, 605

S.W. 2d 271 (Tex. Crim. App., 1980). An officer observed Cody pour gasoline on

the floor of a balcony at a school. Cody confessed that he intended to set the

school on fire because he was mad. Evidence that he poured gasoline on the

balcony with the intent to set the school on fire was sufficient to sustain his

conviction for attempted arson. Id. at 272-73. Cody is clearly distinguishable

from appellant’s case. Appellant did not threaten to burn down the house or make

any post-arrest admissions that he intended to do so. Higgins testified that she was

not sure whether he poured gasoline on a tapestry that he removed from the wall

but that he did not attempt to ignite it (7 R.R. 27, 63-64). The arson investigator

testified that appellant intended to set fire to Higgins rather than to the tapestry or

the house (7 R.R. 179). Thus, the evidence is legally insufficient to sustain his




                                             6
conviction for attempted arson of a habitation because he did not have the specific

intent to set fire to the house.

                                   CONCLUSION

       This Court must reverse the aggravated assault conviction and remand for a

new punishment hearing on the lesser included offense of Class C misdemeanor

assault or, in the alternative, for a new trial; and must reverse the attempted arson

of a habitation conviction and enter a judgment of acquittal.

                                                    Respectfully submitted,

                                                    /s/ Randy Schaffer
                                                    Randy Schaffer
                                                    State Bar No. 17724500

                                                    1021 Main, Suite 1440
                                                    Houston, Texas 77002
                                                    (713) 951-9555 (telephone)
                                                    (713) 951-9854 (facsimile)
                                                    noguilt@swbell.net

                                                    Attorney for Appellant
                                                    DEANDRE DWIGHT JOSEPH

                           CERTIFICATE OF SERVICE

       I served a copy of this document on Lisa Stewart, assistant district attorney

for Travis County, P.O. Box 1748, Austin, Texas, 78767, by e-filing and by United

States mail, postage prepaid, on December 31, 2015.

                                                    /s/ Randy Schaffer
                                                    Randy Schaffer


                                          7
                      CERTIFICATE OF COMPLIANCE

      The word count of the countable portions of this computer-generated

document specified by Rule of Appellate Procedure 9.4(i), as shown by the

representation provided by the word-processing program that was used to create

the document, is 1,589 words.          This document complies with the typeface

requirements of Rule 9.4(e), as it is printed in a conventional 14-point typeface

with footnotes in 12-point typeface.

                                                   /s/ Randy Schaffer
                                                   Randy Schaffer




                                          8
