                                                                                     ACCEPTED
                                                                                 03-15-00209-CR
                                                                                         8305271
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                           12/18/2015 2:08:28 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                              NO. 03-15-00209-CR

                      IN THE COURT OF APPEALS                   FILED IN
                                                         3rd COURT OF APPEALS
                                                              AUSTIN, TEXAS
                      THIRD DISTRICT OF TEXAS            12/18/2015 2:08:28 PM
                                                             JEFFREY D. KYLE
                               AUSTIN, TEXAS                      Clerk



DEANDRE DWIGHT JOSEPH                 §                       APPELLANT

VS.                                   §

THE STATE OF TEXAS                    §                         APPELLEE

         APPEAL FROM THE 403RD JUDICIAL DISTRICT COURT

                       TRAVIS COUNTY, TEXAS

                      CAUSE NO. D-1-DC-15-904009


                               STATE’S BRIEF


                                          ROSEMARY LEHMBERG
                                          District Attorney
                                          Travis County, Texas

                                          Lisa Stewart
                                          Assistant District Attorney
                                          State Bar No. 06022700
                                          Lisa.Stewart@traviscountytx.gov
                                          AppellateTCDA@traviscountytx.gov
                                          P.O. Box 1748
                                          Austin, Texas 78767
                                          (512) 854-9400
Oral Argument Not Requested               Fax No. 854-4810
                                                TABLE OF CONTENTS




TABLE OF CONTENTS .............................................................................................. 2

INDEX OF AUTHORITIES ......................................................................................... 3

STATEMENT OF THE CASE ..................................................................................... 5

SUMMARY OF THE ARGUMENTS .......................................................................... 6

STATEMENT REGARDING ORAL ARGUMENT................................................. 10

STATEMENT OF FACTS FROM GUILT/INNOCENCE ....................................... 11

STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR....................... 21

   The evidence is legally sufficient to establish beyond a reasonable doubt that appellant used a
   deadly weapon, to-wit: gasoline, in committing aggravated assault........................................21

STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR .................. 28
   Appellant is estopped from complaining of the lack of a jury instruction on assault because he
   agreed with the trial judge that there was no evidence that he was guilty only of that offense.
   Alternatively, the trial judge did not err in refusing appellant’s requested instruction on
   assault. ..................................................................................................................................28

STATE’S REPLY TO APPELLANT’S THIRD POINT OF ERROR ..................... 33
   The evidence is legally sufficient to establish beyond a reasonable doubt that appellant had the
   specific intent to set fire to the habitation...............................................................................33

STATE’S REPLY TO APPELLANT’S FOURTH POINT OF ERROR.................. 37

   No variance exists between the State’s pleading and its proof of non-statutory allegations.....37

PRAYER ...................................................................................................................... 40

CERTIFICATE OF COMPLIANCE ......................................................................... 40

CERTIFICATE OF SERVICE................................................................................... 41
                                          INDEX OF AUTHORITIES
Cases

Adelman v. State, 828 S.W.2d 418 (Tex.Crim.App. 1992) .........................................................22
Aguilar v. State, 682 S.W.2d 556 (Tex.Crim.App. 1985) ........................................... 7, 29, 30, 31
Arroyo v. State, 117 S.W.3d 795 (Tex.Crim.App. 2003)............................................................29
Bailey v. State, 38 S.W.3d 157 (Tex.Crim.App. 2001)...............................................................23
Barnes v. State, 62 S.W.3d 288 (Tex.App. – Austin 2001, pet.ref’d.) ....................................8, 35
Beltran v. State, 593 S.W.2d 688 (Tex.Crim.App. 1980) ...........................................................34
Bignall v. State, 887 S.W.2d 21 (Tex.Crim.App. 1994) .........................................................8, 32
Byrd v. State, 336 S.W.3d 242 (Tex.Crim.App. 2011) ...............................................................37
Cada v. State, 334 S.W.3d 766 (Tex.Crim.App. 2011) ..............................................................37
Cody v. State, 605 S.W.2d 271 (Tex.Crim.App. 1980)...............................................................36
Dillon v. State, 574 S.W.2d 92 (Tex.Crim.App. 1978)...............................................................34
Dues v. State, 634 S.W.2d 304 (Tex.Crim.App. 1982)...............................................................35
Ellis v. State, 2004 Tex. App. LEXIS 914 (Tex.App. - Fort Worth 2004, pet.ref’d.) (not
  designated for publication) ....................................................................................................26
Flores v. State, 902 S.W.2d 618 (Tex.App. – Austin 1995, pet.ref’d.) ............................. 9, 34, 36
Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991) .............................................................22
Geick v. State, 349 S.W.3d 542 (Tex.Crim.App. 2011)..............................................................37
Goad v. State, 354 S.W.3d 443 (Tex.Crim.App. 2011) (Alcala, J. concurring)...........................32
Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007)................................................................29
Hill v. State, 161 S.W.3d 771 (Tex.App. – Beaumont 2005, no pet.)..........................................34
Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007)...............................................................22
Jackson v. Virginia, 443 U.S. 307 (1979) ..................................................................................21
Johnson v. State, 364 S.W.3d 292 (Tex.Crim.App.), cert.denied, 133 S.Ct. 536 (2012) .. 9, 37, 38,
  39
Johnston v. State, 115 S.W.3d 761 (Tex.App. – Austin 2003), aff’d. on other grounds, 145
  S.W.3d 215 (Tex.Crim.App. 2004)........................................................................................25
Magee v. State, 994 S.W.2d 878 (Tex.App. – Waco 1999, pet.ref’d.) ....................................6, 23
McCain v. State, 22 S.W.3d 497 (Tex.Crim.App. 2000) ............................................................21
McDowell v. State, 235 S.W.3d 294 (Tex.App. - Texarkana 2007, no pet.)................................24
Merritt v. State, 368 S.W.3d 516 (Tex.Crim.App. 2012)............................................................22
Moore v. State, 969 S.W.2d 4 (Tex.Crim.App. 1998) ................................................................34
Nash v. State, 115 S.W.3d 136 (Tex.App. – Texarkana 2003, no pet.) .................................30, 31
Norwood v. State, 135 Tex. Crim. 406, 120 S.W.2d 806 (Tex.Crim.App. 1938). .......................35
Polk v. State, 693 S.W.2d 391 (Tex.Crim.App. 1985)................................................................24
Ramsey v. State, 2015 Tex. Crim. App. LEXIS 1138 (Tex.Crim.App. No. 0070-15 delivered
  October 28, 2015)..................................................................................................................22
Rice v. State, 771 S.W.2d 599 (Tex.App. - Houston [14th Dist.] 1989, no pet.) ......................6, 24
Rousseau v. State, 855 S.W.2d 666 (Tex.Crim.App. 1993)........................................................30
Russo v. State, 228 S.W.3d 779 (Tex.App. - Austin 2007, pet.ref’d.) ........................................34
Skinner v. State, 956 S.W.2d 532 (Tex.Crim.App. 1997), cert.denied, 523 U.S. 1079 (1998) ...32
Tisdale v. State, 686 S.W.2d 110 (Tex.Crim.App. 1984) ..........................................................23
Wesbrook v. State, 29 S.W.3d 103 (Tex.Crim.App. 2000) .........................................................31



                                                                  3
Williams v. State, 2014 Tex. App. LEXIS 12562 (Tex.App. – Houston [1st Dist.] 2014, pet.ref’d.)
  (memorandum opinion) .........................................................................................................27
Winfrey v. State, 393 S.W.3d 763 (Tex.Crim.App. 2013) ..........................................................23


Statutes

V.T.C.A. Penal Code §1.07(a)(17) ................................................................................ 21, 23, 25
V.T.C.A. Penal Code §15.01(a)...........................................................................................33, 34
V.T.C.A. Penal Code §22.01(a)(2) ............................................................................................31
V.T.C.A. Penal Code §22.02(a)(2) .................................................................................. 5, 20, 31
V.T.C.A. Penal Code §28.02 .................................................................................................5, 33


Rules

Tex.R.App.Proc. 39.1(c) ...........................................................................................................10
Tex.R.App.Proc. 39.1(d) ...........................................................................................................10
Tex.R.App.Proc. 47.7(a) ...........................................................................................................26
Tex.R.App.Proc. 9.4(e) .............................................................................................................39
Tex.R.App.Proc. 9.4(i)(2)(A) ....................................................................................................39




                                                                  4
                                 NO. 03-15-00209-CR

                            IN THE COURT OF APPEALS

                            THIRD DISTRICT OF TEXAS

                                    AUSTIN, TEXAS

DEANDRE DWIGHT JOSEPH                        §                              APPELLANT

VS.                                          §

THE STATE OF TEXAS                           §                                 APPELLEE

             APPEAL FROM THE 403RD JUDICIAL DISTRICT COURT

                              TRAVIS COUNTY, TEXAS

                           CAUSE NO. D-1-DC-15-904009

TO THE HONORABLE COURT OF APPEALS:

       Now comes the State of Texas and files its brief in response to that of the

appellant.


                            STATEMENT OF THE CASE


       The State charged appellant1 by re-indictment with aggravated assault

pursuant to V.T.C.A. Penal Code §22.02(a)(2) and attempted arson of a habitation

pursuant to V.T.C.A. Penal Code §28.02(d)(2). (CR 27-28). Appellant pled not


1
 Appellant had multiple aliases, to-wit: Joseph Deandre, Deandre Dwight Parks, Deandre Parks,
Deandre Joseph, Deandra Dwight Joseph. (CR 27, 93).



                                             5
guilty and had a jury trial. (RR V: 6-7). The State presented evidence, and the

trial judge denied the appellant’s motion for directed verdict. (RR VII: 238). The

jury found appellant guilty of count one, aggravated assault, as alleged in the

indictment which alleged gasoline as a deadly weapon. (CR 73). The jury also

found appellant guilty of count two, attempted arson of a habitation, as alleged in

the indictment. (CR 74). (RR VIII: 39). Appellant pled “true” to the enhancement

allegations in the indictment (RR VIII: 43), and, accordingly, the jury assessed

appellant’s punishment as a habitual offender at 54 years imprisonment and a

$10,000 fine on count one (CR 84), and 25 years confinement on count two (CR

85). (RR VIII: 87-88). Appellant timely filed a motion for new trial, which was

overruled by operation of law. (CR 63-65). The trial court certified appellant’s

right to appeal. (CR 86).


                      SUMMARY OF THE ARGUMENTS

State’s Reply to Appellant’s First Point of Error: The evidence established

beyond a reasonable doubt that the gasoline was a deadly weapon, i.e. that in the

manner of appellant’s use and intended use of the gasoline, it was capable of

causing serious bodily injury or death. The evidence showed that appellant

confined the victim in her bedroom, poured gasoline on a tapestry in her room, and

then doused the victim and her clothing with gasoline. He tried to set the victim on

fire by using a lighted cigarette. When the victim attempted to escape, appellant


                                          6
grabbed another container of gasoline from the living room. Further evidence

showed that appellant verbally threatened the victim with physical harm. Expert

testimony established that gasoline could be a deadly weapon and that a lighted

cigarette could ignite the gasoline. Gasoline may be a deadly weapon in the

manner of its use. Magee v. State, 994 S.W.2d 878, 890 (Tex.App. – Waco,

pet.ref’d.). And, whether gasoline was a deadly weapon in this case was for the

jury to decide. Rice v. State, 771 S.W.2d 599, 601 (Tex.App. – Houston [14th Dist.]

1989, no pet.).

      Appellant engages in an erroneous analysis of the deadly weapon issue. He

uses a dictionary definition of “weapon” rather than the Penal Code definition of

“deadly weapon” in §1.07(a)(17) in analyzing the sufficiency of the evidence. He

also fails to consider the totality of the evidence and focuses only on his act of

pouring gasoline on the victim.

      Viewing the evidence in the light most favorable to the verdict, any rational

trier of fact could have found beyond a reasonable doubt that gasoline constituted a

deadly weapon in this aggravated assault. Appellant’s first point of error should be

overruled.

State’s Reply to Appellant’s Second Point of Error: Appellant is estopped from

complaining that the trial court erred in refusing a jury instruction on the lesser

included offense of assault because he agreed with the trial judge that there was no



                                           7
evidence that he was guilty only of the lesser offense. Furthermore, appellant was

not entitled to an instruction on the lesser included offense of assault under the

Aguilar/Rousseau two-part test because there was no evidence that would permit a

rational jury to find that, if the appellant was guilty, he was guilty only of the lesser

offense. Hall, 225 S.W.3d at 536. The evidence established that appellant

confined the victim in her room, called her a pawn and threatened her with harm,

doused her with gasoline, and attempted to set her on fire. Police found even more

evidence of gasoline inside and outside of the victim’s residence.

      Appellant’s contention that he was entitled to the lesser included offense

instruction on misdemeanor assault because the jury could doubt whether gasoline

was a deadly weapon is an inappropriate analysis of the issue. There must be some

evidence directly germane to the lesser offense that had been positively and

affirmatively presented at trial to entitle the defendant to such an instruction.

Bignall, 887 S.W.2d at 24. It is not enough that the jury may disbelieve crucial

evidence pertaining to the greater offense. Id.

      Because there was no evidence at trial germane to the lesser included

offense of assault, the trial judge correctly denied appellant’s requested instruction.

This point of error should be overruled.

State’s Reply to Appellant’s Third Point of Error: The evidence is legally

sufficient to establish beyond a reasonable doubt that appellant had the specific



                                           8
intent to set fire to the habitation. The evidence showed that appellant did acts

constituting more than mere preparation that tended but failed to effect the

commission of arson. The jury could rationally infer appellant’s intent from his

verbal threats of harm and his acts of dousing the tapestry and the victim with

gasoline and trying to set the victim on fire while holding her in a locked bedroom.

Barnes, 62 S.W.3d at 298 (trier of fact infers defendant’s mental state from his

acts, words, and conduct). Appellant also had a second can of gasoline in the

living room of the house, and the victim thought she was going to die.

      “Attempt” implies both a purpose and actual effort to carry that purpose into

execution. Flores, 902 S.W.2d at 620. The evidence showed appellant’s purpose

and effort in preparing to set the victim and the house on fire. That he actually

failed to ignite the victim or the house did not render the evidence insufficient.

Santellan, 939 S.W.2d at 163 (criminal attempt does not require that every act

short of actual commission of the offense be accomplished).

      Appellant’s third point of error should be overruled.

State’s Reply to Appellant’s Fourth Point of Error: No variance existed between

the State’s pleading that appellant wet the victim and her clothing with gasoline

and contacted her clothing with a lit cigarette and its proof that appellant jabbed his

lit cigarette near her feet and legs. When asked if appellant contacted her clothing,

the victim testified that she “was wearing long pants at the time so like, yes, in the



                                           9
pants vicinity.” (RR VII: 34). This testimony established that appellant contacted

the victim’s clothing, or, in the very least, provided testimony from which the jury

could infer that appellant contacted the victim’s clothing. Even if there was a

variance in the pleading and proof of this non-statutory language, it was minor and

did not constitute an entirely different offense. Johnson, 364 S.W.3d at 295. The

Court of Criminal Appeals tolerates such “little mistakes” that do not prejudice a

defendant’s substantial rights. Id.

      Appellant’s fourth point of error is wholly without merit and should be

overruled.


              STATEMENT REGARDING ORAL ARGUMENT

      This case presents legal sufficiency and jury charge issues, which are not

novel. The resolution of these issues turns on the application of the specific facts

of these offenses to well-established legal principles. Therefore, the State submits

that oral argument is unnecessary as the decisional process would not be

significantly aided by oral argument. Tex.R.App.Proc. 39.1(d). The State further

submits that the parties have adequately presented the facts and legal arguments in

their briefs. Tex.R.App.Proc. 39.1(c). Consequently, the State has not requested

oral argument.




                                          10
               STATEMENT OF FACTS FROM GUILT/INNOCENCE
         The victim in this case, Jillian Higgins, shared a house at 6 Kern Ramble in

Travis County with several roommates, one of them being Rosalie Miller. (RR

VII: 22-23). Miller had dated appellant, and he often stayed over at the house.

(RR VII: 23). Higgins knew appellant by the name Deandre Parks. (RR VII: 24).

         On July 26, 2104, appellant was no longer dating Miller, but Higgins

encountered him at her home.2 (RR VII: 25). Higgins was in the backyard,

digging a hole in which to bury her deceased pet. (RR VII: 25). Appellant entered

the yard through a back gate and helped Higgins. (RR VII: 25). After digging the

hole, Higgins went to her room to change her sweaty shirt. (RR VII: 26).

Appellant followed Higgins into her room, shut the door behind him, and then

stood between Higgins and the door, blocking her exit from the room. (RR VII:

26, 29). Higgins felt very uncomfortable. (RR VII: 26).

         Appellant did not allow Higgins to leave her room. (RR VII: 26). He

wanted Higgins to help him get in touch with Miller. (RR VII: 26). Appellant

held a water bottle full of gasoline and smoked cigarettes. (RR VII: 26-27). When

Higgins asked him his plan, appellant responded, “I don’t really have a plan, I’m

just here with this gasoline and smoking this cigarette.” (RR VII: 27). Appellant

smoked fairly continually while in Higgins’s room, lighting his cigarettes. (RR

2
    Higgins guessed that the time was about 5 or 6 p.m. (RR VII: 25).


                                                 11
VII: 31). Appellant kept Higgins in her room for about two hours. (RR VII: 27).

She cried throughout the ordeal because she was terrified. (RR VII: 42).

Appellant told Higgins that he was going to use her as a “pawn” to get to Miller.

(RR VII: 30). He also told Higgins that if she “didn’t see tomorrow, it wasn’t

going to be his fault.” (RR VII: 43).

      Eventually one of Higgins’s roommates, Rhett Radon, came home and

checked on Higgins because the house smelled like gasoline. (RR VII: 27).

Higgins indicated she was fine, but she rolled her eyes and mouthed “help me” to

Radon. (RR VII: 27). Radon played along, said “nice to see you,” and went

outside. (RR VII: 27). Higgins admitted to appellant that she had signaled for

help, and he told her “you fucked up.” (RR VII: 27). Higgins thought appellant

was going to kill her. (RR VII: 42-43).

      Appellant removed a tapestry from the wall in Higgins’s room and poured

gasoline on it. (RR VII: 27). Higgins tried to leave her room, but appellant threw

her onto her bed. (RR VII: 27). While holding a lit cigarette, appellant stood over

Higgins and squirt gasoline from the water bottle onto her. (RR VII: 61, 71).

Appellant doused Higgins and her clothing with gasoline, making her skin and

clothes wet. (RR VII: 27, 30). Her skin itched and burned from the gasoline. (RR

VII: 30). Appellant tried to set Higgins on fire by jabbing at her and at her

clothing with a lit cigarette, but she kicked him away. (RR VII: 27-28, 34).



                                          12
Higgins was terrified and thought she was going to die. (RR VII: 33). Tearing her

locked bedroom door from its hinges (SX14), Higgins fled her room. (RR VII: 28,

32).

       Appellant chased Higgins and caught her on the back porch where she was

screaming for help. (RR VII: 28). He grabbed Higgins by the face, pulled her into

the house, and put her back in her room. (RR VII: 28). Appellant went into the

living room and retrieved a second gas can. (RR VII: 28). While appellant

unscrewed the nozzle on the gas can, Higgins escaped through her bedroom

window. (RR VII: 28, 33). She ran to a neighbor’s house and asked them to call

police. (RR VII: 28). Higgins felt very threatened. (RR VII: 28).

       The neighbors called 911, and Higgins spoke with a 911 operator. (RR VII:

34). A copy of the 911 call, SX1, was admitted into evidence and played for the

jury. (RR VII: 20, 35). Higgins was sobbing and hysterical, and had never been

more afraid in her life. (RR VII: 73). Higgins was concerned about the house

being burnt down because appellant had purposefully poured gasoline in her

bedroom, and he had spilled gasoline from the water bottle when he had chased

Higgins from her room, down the hallway, and through the kitchen to the back

patio. (RR VII: 35).

       Earlier that day, Radon had received text messages regarding appellant. (RR

VII: 82). In response to those messages, Radon went to her home that she shared



                                        13
with Higgins and others to retrieve her things to stay at a friend’s house. (RR VII:

83). When Radon arrived at her home, she noted that only Higgins was home.

(RR VII: 83). Radon entered the home and immediately detected the smell of

gasoline. (RR VII: 84). She also noticed that items had been moved in the house

and that “something [was] off.” (RR VII: 84).

       Radon decided to check on Higgins whose bedroom door was closed. (RR

VII: 87). Higgins took an unusually long time to open her bedroom door. (RR

VII: 87). Higgins only partially opened her bedroom door and barely stepped

forward. (RR VII: 87). Radon noticed that Higgins was visibly upset. (RR VII:

87). Higgins appeared to have been crying, and she looked confused, “sad,

frightened, something.” (RR VII: 87). Higgins denied smelling the odor of

gasoline. (RR VII: 88). Higgins also denied knowing anything about the text

messages regarding appellant, but she gestured with her eyes and communicated

that appellant was behind her in the darkness of her bedroom. (RR VII: 89).

Higgins mouthed to Radon “call the police.” (RR VII: 89). Radon called 911 and

reported that Higgins was being held hostage. (RR VII: 90). Shortly after Radon

called the police, she saw appellant fleeing from the house. (RR VII: 91).3




3
  At this point in the trial, after Higgins and Radon had testified, appellant informed the court
that he no longer wanted to be present for the trial, and he voluntarily absented himself from the
trial. (RR VII: 92-101).


                                                14
      Mike Walton was neighbors with Higgins and Radon and knew appellant

from the neighborhood. (RR VII: 102-103). Around 4:00 p.m. on July 26, 2014,

Walton was out skateboarding when he encountered appellant in a vehicle. (RR

VII: 103). Appellant was agitated and looking for his ex-girlfriend Rose Miller.

(RR VII: 105). Appellant told Walton that there would be “bloodshed tonight” and

Walton felt threatened. (RR VII: 106-107).

      Rosalie Miller met appellant at a homeless shelter where she worked and he

received services. (RR VII: 111). They began dating around Christmastime in

2013 and dated for about six months. (RR VII: 112). Miller broke up with

appellant, and appellant was very upset and agitated about that. (RR VII: 113). He

repeatedly tried to contact Miller and sent her communications varying from

desperate, pleading, and sad to threatening, belligerent, and aggressive. (RR VII:

113-114). Appellant even began to threaten Miller’s friends. (RR VII: 114).

      On July 26th, Miller called her friend Rebecca Ruiz, who lived at the Kern

Ramble house, to warn her that appellant had threatened her (Miller’s) friends.

(RR VII: 115). In the days preceding the incident at bar, appellant had sent Miller

text messages threatening Miller’s friends and family and indicating that there

would be blood on her hands. (RR VII: 117, 121; SX17-22). He told Miller that

things were only going to get worse and that she would “be crying forever”

because she would not respond to his phone calls. (RR VII: 121). He also



                                         15
indicated that he put a price on her head. (RR VII: 121). Miller took all his threats

seriously. (RR VII: 121).

        Austin Police Officer Jared Carruth responded to two calls on Kern Ramble

on July 26th. (RR VII: 127). The first call came from a man who reported that a

woman came to his house at 9 Kern Ramble and said someone had tried to set her

on fire. (RR VII: 127). Carruth encountered Higgins there, and she was crying

uncontrollably and smelled strongly of gasoline. (RR VII: 127-128). The second

call reported that someone was being held against their will at 6 Kern Ramble. (RR

VII: 127). Higgins told Carruth that the perpetrator had already fled. (RR VII:

128).

        Carruth went to the scene at 6 Kern Ramble and confirmed appellant was not

there. (RR VII: 129). The house displayed obvious signs of a disturbance with the

bedroom door off its hinges and objects strewn from the bedroom to the back door.

(RR VII: 128). The odor of gas in the house was “almost overpowering.” (RR

VII: 128).

        An Austin police officer requested that Lieutenant Joe Loughran, a master

fire and arson investigator with the City of Austin, respond to 6 Kern Ramble to

investigate. (RR VII: 141, 143). Loughran first surveyed the exterior of the home,

which was a standard, wood frame single family residence. (RR VII: 145).

Loughran observed a half-full gasoline can outside of Higgins’s bedroom window.



                                         16
(RR VII: 147; SX24). At the back of the residence, Loughran found two more

gasoline cans, both of which were empty. (RR VII: 148; SX26). Loughran found

the water bottle (SX42A) with gasoline4 in it on the floor of the back porch near

the back door. (RR VII: 148; SX28, 29). The concrete floor appeared stained

from the gasoline spilling out of the bottle. (RR VII: 149; SX29). Just inside the

back door in the kitchen, Loughran found a squeeze cap that appeared to have

come off the water bottle. (RR VII: 152, SX37). Loughran also photo documented

Higgins’s bedroom. (RR VII: 152). He found her clothing5 that she had been

wearing during the attack on the floor; Higgins had already changed clothing by

the time Loughran arrived at the scene because she was afraid of the gasoline that

was on her. (RR VII: 152; SX38).

         Based on his scene investigation and interviews, Loughran determined that

appellant intentionally poured gasoline on Higgins and tried to ignite that gasoline

with a cigarette butt. (RR VII: 163). As peace officers, he and his partner believed

appellant had committed an aggravated assault on Higgins. (RR VII: 163). As

arson investigators, they further determined that appellant had committed an

attempted arson. (RR VII: 164).


4
    The liquid from the water bottle was contained in SX41. (RR VII: 161).
5
 The evidence showed that Higgins had been wearing jeans and a shirt. (RR VII: 160-161). The
shirt was admitted into evidence as SX43A, and the jeans were admitted into evidence as
SX43B. (RR VII: 160-161).


                                                17
       Loughran also testified, based on his experience, that gasoline can be a

deadly weapon. (RR VII: 164). Gasoline could be considered a deadly weapon

because Loughran had seen many instances in which a person had been doused or

squirted with gasoline and ignited on fire, causing them to die from their injuries or

suffer serious bodily injury. (RR VII: 164-165). Loughran explained that a

cigarette butt can ignite gasoline but not easily. (RR VII: 165). Loughran testified

that it was a common misconception that cigarettes easily ignite gasoline because

of movies and television. (RR VII: 165). Based on science, there was enough heat

in a cigarette butt to ignite gasoline, but it typically did not occur for various

reasons. (RR VII: 166). The auto ignition temperature of gasoline ran between 80

and 150 degrees, and a cigarette butt burned at about twice that temperature. (RR

VII: 166). The real danger from gasoline was its vapors. (RR VII: 166). The

vapors could be ignited with heat and/or an open flame. (RR VII: 166). Loughran

explained that the liquid itself did not ignite. (RR VII: 166).6

       Upon his examination of the interior of the home, Loughran found a

cigarette lighter, an ashtray with cigarette butts, and cigarette butts on the floor in

Higgins’s bedroom. (RR VII: 170). He photographed this evidence but did not

seize it because the more important evidence was the plastic bottle with the


6
  Loughran testified at trial that even 7 months after this offense, the gas vapors from the victim’s
clothing could have ignited if exposed to a lighted match. (RR VII: 168-169).



                                                 18
gasoline in it.7 (RR VII: 170). Loughran confirmed that a tapestry would be

particularly flammable if gasoline were added to it. (RR VII: 172). Based on his

experience, Loughran opined that this was a “non fire event” as there was no

ignition because appellant failed to start a fire, not because he lacked the intent to

start a fire. (RR VII: 173). At the conclusion of his investigation, Loughran felt

confident that appellant had intentionally tried to start a fire, i.e. he had committed

an attempted arson. (RR VII: 174, 176). Loughran believed appellant intended to

set Higgins on fire, and he noted that if appellant had used a cigarette lighter, rather

than a cigarette, the fire would have started in seconds with the gasoline and its

vapors. (RR VII: 179). Based on his experience with fire science and as a

firefighter, Loughran noted that most arsonists did not use the most effective way

to start a fire. (RR VII: 182). Their lack of knowledge usually prevented them

from doing the most damage. (RR VII: 182).

       Austin Fire Department Captain Andy Reardon, a master arson investigator,

executed a search warrant for appellant’s clothing and seized it from the Travis

County Jail. (RR VII: 190-191). Appellant’s left and right athletic shoes (SX44A

and SX45A), his denim shorts (SX46A), and t-shirt (SX47A) were admitted into

evidence. (RR VII: 195-198). The state arson lab tested these items for flammable

liquids, and both shoes tested positive for gasoline. (RR VII: 199). Appellant’s

7
  And, Loughran felt photographs clearly documented the evidence of the scene with the
cigarettes. (RR VII: 170-171).

                                              19
shirt tested positive for aromatic product8, which was classified as a flammable

liquid. (RR VII: 199). A latent fingerprint found on the plastic water bottled

seized at the victim’s house matched appellant’s right thumb. (RR VII: 216).

       Forensic scientist Eric Steinberg tested seven items in this case. (RR VII:

221). The liquid sample from the plastic bottle (SX41) tested positive for gasoline.

(RR VII: 223). Higgins’s clothing in SX43 also tested positive for gasoline. (RR

VII: 225-226). Steinberg found aromatic product on appellant’s shirt, but he did

not find any ignitable liquid residue on his shorts. (RR VII: 226-227). Steinberg

also detected gasoline on both of appellant’s athletic shoes. (RR VII: 227-228).

Finally, Steinberg detected an aromatic product on the plastic water bottle (SX42).

(RR VII: 229-230).

       Upon this evidence, the State rested. (RR VII: 234). Appellant then moved

for a directed verdict on count one, the charge of aggravated assault. (RR VII:

235). Appellant contended the indictment was fatally defective for not alleging the

manner and means by which gasoline could become or was used as a deadly

weapon. (RR VII: 237). The trial judge denied appellant’s motion. (RR VII:

238). Appellant then moved for a directed verdict on count two, arguing that

because no fire was actually set, there was no specific intent to commit arson. (RR


8
 Captain Reardon testified that when gasoline breaks down it can come up positive for aromatic
product. (RR VII: 199).


                                              20
VII: 238). The trial judge responded that intent was a fact question for the jury.

(RR VII: 239). Appellant did not desire to testify, and the defense did not present

any evidence. (RR VII: 241). Both sides closed on the evidence. (RR VII: 245).


      STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR

      The evidence is legally sufficient to establish beyond a reasonable
      doubt that appellant used a deadly weapon, to-wit: gasoline, in
      committing aggravated assault.

Indictment, Jury Charge, and Verdict

      In count one, the indictment alleged that appellant committed aggravated

assault under Penal Code §22.02(a)(2). Specifically, the indictment alleged that

appellant intentionally or knowingly threatened Jillian Higgins with imminent

bodily injury by brandishing a bottle containing gasoline at Higgins and by wetting

her and her clothing with gasoline and that he used or exhibited a deadly weapon,

to-wit: gasoline, during the commission of the offense. (CR 27). In its charge to

the jury, the trial court instructed the jury in accordance with the Penal Code that

“’Deadly weapon’ means a firearm or anything that in the manner of its use or

intended use is capable of causing death or serious bodily injury.” (CR 67). See

V.T.C.A. Penal Code §1.07(a)(17). The application paragraph for count one

tracked the language in the indictment. (CR 68). The jury found appellant guilty

of aggravated assault, as alleged in the indictment. (CR 73).




                                          21
Standard of Review for Legal Sufficiency

      In determining whether the evidence is sufficient to support a conviction, an

appellate court must review the evidence in the light most favorable to the verdict

by asking whether any rational trier of fact could have found the appellant guilty of

the elements of the crime beyond a reasonable doubt. McCain v. State, 22 S.W.3d

497, 503 (Tex.Crim.App. 2000) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).

This familiar standard gives full play to the responsibility of the trier of fact to

fairly resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic to ultimate facts. Jackson v. Virginia, 443 U.S. at

319. “Each fact need not point directly and independently to the guilt of the

appellant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13

(Tex.Crim.App. 2007). The appellate court’s duty is to determine if both the

explicit and implicit findings of the trier of fact are rational by viewing all of the

evidence admitted at trial in the light most favorable to the verdict. Adelman v.

State, 828 S.W.2d 418, 421-22 (Tex.Crim.App. 1992).

      When examining the legal sufficiency of the evidence, the appellate court

considers the combined and cumulative force of all admitted evidence in the light

most favorable to the conviction to determine whether, based on the evidence and

reasonable inferences therefrom, a rational trier of fact could have found each



                                           22
element of the offense beyond a reasonable doubt. Ramsey v. State, 2015 Tex.

Crim. App. LEXIS 1138, *7 (Tex.Crim.App. No. 0070-15 delivered October 28,

2015), citing Jackson v. Virginia, 443 U.S. at 318–19; and Merritt v. State, 368

S.W.3d 516, 525 (Tex.Crim.App. 2012). Beyond a reasonable doubt does not

require the State to disprove every conceivable alternative to a defendant’s guilt.

Merritt, 368 S.W.3d at 525; see Geesa v. State, 820 S.W.2d 154, 160–61

(Tex.Crim.App. 1991). Direct evidence and circumstantial evidence are equally

probative, and circumstantial evidence alone may be sufficient to uphold a

conviction so long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction. Ramsey, LEXIS 1138 at *7-8, citing Winfrey

v. State, 393 S.W.3d 763, 771 (Tex.Crim.App. 2013); and Hooper, 214 S.W.3d at

13. The trier of fact is the exclusive judge of the credibility and weight of the

evidence and is permitted to draw any reasonable inference from the evidence so

long as it is supported by the record. Ramsey, LEXIS 1138 at *8. Inferences based

on mere speculation, however, are insufficient to support a criminal conviction. Id.,

citing Hooper, 214 S.W.3d at 16–17.

Deadly Weapon

      Penal Code §1.07(a)(17) provides that a deadly weapon is "anything that in

the manner of its use or intended use is capable of causing death or serious bodily

injury." McCain, 22 S.W.3d at 503. The provision's plain language does not



                                          23
require that the actor actually intend death or serious bodily injury; an object is a

deadly weapon if the actor intends a use of the object in which it would be capable

of causing death or serious bodily injury. Id. The placement of the word "capable"

in the provision enables the statute to cover conduct that threatens deadly force,

even if the actor has no intention of actually using deadly force. Id.; Bailey v.

State, 38 S.W.3d 157, 159 (Tex.Crim.App. 2001); see Tisdale v. State, 686 S.W.2d

110, 114-115 (Tex.Crim.App. 1984). Objects used to threaten deadly force are in

fact deadly weapons. McCain, 22 S.W.3d at 503.

      Gasoline may be a deadly weapon in the manner of its use. Magee v. State,

994 S.W.2d 878, 890 (Tex.App. – Waco 1999, pet.ref’d.). While not a deadly

weapon per se, gasoline, in the manner of its use or intended use, can be capable of

causing death or serious bodily injury, and therefore can constitute a deadly

weapon according to the statutory definition. McDowell v. State, 235 S.W.3d 294,

297 (Tex.App. - Texarkana 2007, no pet.). Whether gasoline, by its manner of use

or intended use, is a deadly weapon is properly left for the jury to decide. Rice v.

State, 771 S.W.2d 599, 601 (Tex.App. - Houston [14th Dist.] 1989, no pet.), citing

Polk v. State, 693 S.W.2d 391 (Tex.Crim.App. 1985).

The Manner of Appellant’s Use and Intended Use of the Gasoline Rendered It
a Deadly Weapon

      Any rational trier of fact could have found beyond a reasonable doubt that

the gasoline constituted a deadly weapon. The evidence showed that appellant first

                                          24
poured gasoline on a tapestry in Higgins’s room, then doused Higgins and her

clothing with gasoline, and jabbed a lighted cigarette at her and her clothes, trying

to set her on fire. When Higgins attempted to escape, appellant forcibly grabbed

her and pulled her back into her room. Appellant then went into the living room

and retrieved a second gas can, but she escaped before he could get it open. When

police arrived, the house smelled overwhelmingly of gasoline, and police found a

half-full gasoline can outside Higgins’s bedroom window. Police found an

additional two gasoline cans, both empty, at the back of the house.

      In conjunction with these physical assaults and threats, appellant verbally

threatened Higgins, telling her that she was just a “pawn” and that if she “didn’t

see tomorrow, it wasn’t his fault.” (RR VII: 30, 43). When Higgins fled to the

neighbor’s house, she told him that someone had tried to set her on fire. (RR VII:

127). Appellant also threatened Miller’s friends and told Miller that she would “be

crying forever” and would have blood on her hands. (RR VII: 121).

      From appellant’s actions and words, Higgins thought he was going to kill

her. And, a master fire and arson investigator testified based on his experience and

the facts in this case that he believed appellant intended to start a fire and intended

to set Higgins on fire. Further testimony from this expert also established that

gasoline could be a deadly weapon and that a cigarette butt could ignite gasoline.




                                          25
         Viewing all this evidence in the light most favorable to the verdict, any

rational trier of fact could have found beyond a reasonable doubt that appellant’s

use and intended use of the gasoline was capable of causing serious bodily injury

or death, thereby making gasoline a deadly weapon per Penal Code §1.07(a)(17).

The gasoline had more than a hypothetical capability of causing serious bodily

injury or death, and its use was directly related to the circumstances of this

aggravated assault. Cf. Johnston v. State, 115 S.W.3d 761, 764 (Tex.App. – Austin

2003), aff’d. on other grounds, 145 S.W.3d 215 (Tex.Crim.App. 2004). Therefore,

the evidence is legally sufficient to sustain the jury’s finding that gasoline was a

deadly weapon.

         The facts in this case are quite similar to those in Ellis v. State, 2004 Tex.

App. LEXIS 914, *11 (Tex.App. - Fort Worth 2004, pet.ref’d.) (not designated for

publication),9 where unignited gasoline constituted a deadly weapon in the manner

of its use. In that case, the defendant argued with the victim (his girlfriend),

grabbed her by the hair, threw gasoline on her, and forced her into his car where he

threatened to set her on fire. Id. at *9-10. Much like Higgins, the victim smelled

like gasoline and complained that the gasoline burned her skin. Id. at *9. A police

detective testified that gasoline as used in that case by Ellis, along with his threats

to ignite it with a cigarette lighter, constituted a deadly weapon. Id. at *10.

9
    Tex.R.App.Proc 47.7(a).


                                             26
Appellant’s Legal Insufficiency Analysis is Erroneous

      Appellant’s argument is flawed for several reasons. First, appellant

erroneously relies on a dictionary definition of “weapon” to determine if gasoline

constituted a “deadly weapon.” The appropriate inquiry in this case is whether

gasoline constituted a “deadly weapon” as defined in the Penal Code in

§1.07(a)(17), i.e. whether in the manner of its use or intended use it was capable of

causing death or serious bodily injury. Furthermore, Section 1.07(a)(17) and

corresponding case law recognize that “anything” can be a deadly weapon; thus,

whether gasoline met the dictionary definition of a “weapon” is an irrelevant and

inappropriate inquiry in determining whether any given object was a deadly

weapon under the law.

      Additionally, appellant focuses only on his act of pouring gasoline on

Higgins, rather than considering the entirety of the evidence showing he verbally

threatened Higgins, confined her in her room, poured gasoline on her and the

tapestry, and attempted to ignite the gasoline with a cigarette. The fact that

appellant apparently unknowingly used a challenging method of igniting the

gasoline did not render his manner of its use or intended use any less deadly. Nor

did it negate his intent to cause serious bodily injury or death to Higgins.

      Finally, the gratuitous fact that Higgins did not suffer serious bodily injury

or death does not render the evidence insufficient to establish that the gasoline was



                                          27
used as a deadly weapon. See e.g. Williams v. State, 2014 Tex. App. LEXIS

12562, *10-11 (Tex.App. – Houston [1st Dist.] 2014, pet.ref’d.) (memorandum

opinion) (gratuitous fact that no resident, firefirghter, or bystander was ultimately

injured or killed by resulting fire did not render evidence insufficient to

demonstrate that fire was used as a deadly weapon).

      The evidence showed 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. The jury rationally determined that the appellant’s manner of use and

intended use of the gasoline was capable of causing serious bodily injury or death

to Higgins and therefore constituted a deadly weapon. The evidence is legally

sufficient to sustain appellant’s conviction for aggravated assault. Appellant’s first

point of error is wholly without merit.


    STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR

      Appellant is estopped from complaining of the lack of a jury
      instruction on assault because he agreed with the trial judge that
      there was no evidence that he was guilty only of that offense.
      Alternatively, the trial judge did not err in refusing appellant’s
      requested instruction on assault.

Relevant Facts from the Charge Conference

      At the charge conference at guilt/innocence, appellant requested “charges on

terroristic threat, deadly conduct, assault criminal mischief.” (RR VII: 245). The

trial judge asked for evidence “that, if guilty, he is only guilty of those offenses,


                                           28
one by one.” (RR VII: 245). Appellant argued that the evidence was consistent

with an assault because he pushed Higgins onto the bed. (RR VII: 245). The trial

judge noted that there was no evidence that indicated, if appellant were guilty, he

was guilty only of that offense. (RR VII: 245). Appellant agreed, responding “that

is correct.” (RR VII: 245). He then argued that based on the evidence it was

possible that the jury could find he did not intend to ignite the gasoline and attempt

arson or that he intended to use gasoline as a deadly weapon. (RR VII: 245-246).

The trial judge acknowledged that the jury determined the credibility of the

evidence, but she reiterated that there needed to be evidence that appellant was

guilty only of the lesser included offense to warrant an instruction on that offense.

(RR VII: 246). Appellant’s theory of the case was that he was only frightening

Higgins in an attempt to control her so he could get back in touch with his ex-

girlfriend Miller. (RR VII: 247). The trial judge noted that there was no testimony

to that effect and denied appellant’s requested charge. (RR VII: 247).

Estoppel

      Under the doctrine of equitable estoppel, a party may be estopped from

asserting a claim that is inconsistent with that party’s prior conduct. Arroyo v.

State, 117 S.W.3d 795, 798 (Tex.Crim.App. 2003). During the charge conference

at guilt/innocence, appellant agreed with the trial judge that the evidence did not

show that if he were guilty, he were guilty only of assault. (RR VII: 245).



                                          29
Because appellant agreed that he did not meet the standard justifying a lesser-

included-offense instruction on assault, the State submits he is estopped from

complaining of the trial court’s refusal to submit such charge to the jury.

Law on Submitting a Lesser-Included-Offense

       Courts apply the Aguilar/Rousseau two-part test to determine whether an

instruction on a lesser-included offense should be given to the jury. Cavazos v.

State, 382 S.W.3d 377, 382 (Tex.Crim.App. 2012), citing Hall v. State, 225

S.W.3d 524, 535-36 (Tex.Crim.App. 2007); McKinney v. State, 207 S.W.3d 366,

370 (Tex.Crim.App. 2006); and Rousseau v. State, 855 S.W.2d 666, 672

(Tex.Crim.App. 1993). First, the court determines if the proof necessary to

establish the charged offense also includes the lesser offense. Hall, 225 S.W.3d at

535-36. This step is a question of law, and it does not depend on the evidence

raised at trial. Cavazos, 382 S.W.3d at 382.

       If the first step is met, the court moves to the second step of the

Aguilar/Rousseau test and considers whether there is some evidence that would

permit a rational jury to find that, if the appellant is guilty, he is guilty only of the

lesser offense. Hall, 225 S.W.3d at 536. This second step is a question of fact and

is based on the evidence presented at trial. Cavazos, 382 S.W.3d at 383. A

defendant is entitled to an instruction on a lesser-included offense if some evidence

from any source raises a fact issue on whether he is guilty of only the lesser,



                                            30
regardless of whether the evidence is weak, impeached, or contradicted. Id. If a

defendant either presents evidence that he committed no offense or presents no

evidence, and there is no evidence otherwise showing he is guilty only of a lesser

included offense, then a charge on a lesser included offense is not required. Nash

v. State, 115 S.W.3d 136, 139 (Tex.App. – Texarkana 2003, no pet.), citing Aguilar

v. State, 682 S.W.2d 556, 558 (Tex.Crim.App. 1985).

      Before a defendant is entitled to a charge on a lesser included offense, the

evidence must not merely raise the possibility of the lesser offense; it must

establish the lesser included offense as a valid rational alternative to the charged

offense. Nash, 115 S.W.3d at 139, citing Wesbrook v. State, 29 S.W.3d 103, 113-

14 (Tex.Crim.App. 2000). The evidence must allow a jury to conclude rationally

that the defendant was guilty only of the lesser offense. Id.

There is No Evidence That Would Permit a Rational Jury To Find That, If the
Appellant is Guilty, He is Guilty Only of the Lesser Offense

      The State charged appellant with aggravated assault under Penal Code

§22.02(a)(2), alleging assault as defined in Penal Code §22.01(a)(2) as the

underlying assault required for §22.02(a). Thus, the proof necessary to establish

the charged offense also included the lesser offense. Hall, 225 S.W.3d at 535-36.

Assault under §22.01(a)(2) was therefore a lesser included offense of the

aggravated assault alleged in the indictment. The first step of the

Aguilar/Rousseau test has been met.

                                          31
       But, based on analysis under the second step of the test, appellant was not

entitled to an instruction on the lesser included offense. As the trial court noted on

the record, there was no evidence that would permit a rational jury to find that, if

the appellant was guilty, he was guilty only of the lesser offense. (RR VII: 245).

Hall, 225 S.W.3d at 536. The evidence established that appellant confined Higgins

in her room, called her a pawn and threatened her with harm, doused her with

gasoline, and attempted to light her on fire. Besides the gasoline appellant had in

the water bottle, police found evidence of more gasoline inside and outside of

Higgins’s residence. Based on the evidence, no rational jury could conclude that

appellant merely meant to frighten Higgins.

       Appellant contends he was entitled to the lesser included instruction on

misdemeanor assault because the jury could doubt whether gasoline was a deadly

weapon. Even if true, that does not entitle him to a lesser included offense

instruction.10 “[I]t is not enough that the jury may disbelieve crucial evidence

pertaining to the greater offense; there must be some evidence directly germane to

a lesser included offense for the factfinder to consider before an instruction on a

lesser included offense is warranted.” Bignall v. State, 887 S.W.2d 21, 24

10
  “After examining the record for all evidence that tends to establish a lesser offense, a trial
court, presuming the truth of all the evidence, must then decide whether the evidence supports
the lesser offense as a valid, rational alternative to the charged offense.” Goad v. State, 354
S.W.3d 443, 453 (Tex.Crim.App. 2011) (Alcala, J. concurring). Presuming the truth of all the
State’s evidence (the only evidence presented at trial) in this case, the record establishes
appellant committed the charged offenses and not any lesser offense.



                                                32
(Tex.Crim.App. 1994). See also Skinner v. State, 956 S.W.2d 532, 543

(Tex.Crim.App. 1997), cert.denied, 523 U.S. 1079 (1998) (same). While appellant

challenged the credibility of the evidence establishing aggravated assault, he did

not positively and affirmatively present evidence upon which a rational jury could

find gasoline was not a deadly weapon. Cf. Bignall, 887 S.W.2d at 24. Because

there was no evidence germane to the lesser included offense of assault, the trial

judge correctly denied appellant’s requested jury instruction.

      Appellant’s second point of error is without merit.


     STATE’S REPLY TO APPELLANT’S THIRD POINT OF ERROR

      The evidence is legally sufficient to establish beyond a reasonable
      doubt that appellant had the specific intent to set fire to the
      habitation.

      Count two of the indictment alleged in pertinent part that appellant, with

specific intent to commit the offense of arson of a habitation, did an act, to wit:

“wet[] the clothing and person of Jillian Higgins with gasoline and contact[ed] the

clothing of Jillian Higgins with a lit cigarette while the said Jillian Higgins was

inside a habitation, which amounted to more than mere preparation that tended but

failed to effect to (sic) commission of the offense intended[.]” (CR 28). V.T.C.A.

Penal Code §§28.02 and 15.01(a). In its charge, the trial court instructed the jury

pursuant to Penal Code §15.01(a) and (b), and 28.02(a)(2)(F). (CR 68). The

application paragraph tracked the language in the indictment. (CR 69).


                                          33
Standard of Review

       The standard of review for legally sufficient evidence to support a

conviction was fully discussed in the State’s Reply to Appellant’s First Point of

Error at pp. 22-23, supra. The State fully incorporates that discussion into this

reply point by reference.

The Law of Criminal Attempt and Attempted Arson

       A person commits arson with specific intent to damage or destroy a building,

habitation, or vehicle if it is the person’s conscious objective or desire to engage in

the conduct or cause the result. Beltran v. State, 593 S.W.2d 688, 689

(Tex.Crim.App. 1980) A person is guilty of attempt if, with specific intent to

commit an offense, “he does an act amounting to more than mere preparation that

tends but fails to effect the commission of the offense intended.” Penal Code

§15.01(a). “Attempt” is more comprehensive than “intent,” and it implies both a

purpose and actual effort to carry that purpose into execution. Flores v. State, 902

S.W.2d 618, 620 (Tex.App. – Austin 1995, pet.ref’d.). The law of criminal attempt

does not require that every act short of actual commission of the offense be

accomplished. Santellan v. State, 939 S.W.2d 155, 163 (Tex.Crim.App. 1997). A

specific intent to commit an offense means that the accused intended to bring about

the offense in question. Graves v. State, 782 S.W.2d 5, 6 (Tex.App. – Dallas 1989,

pet.ref’d.).



                                          34
Intent May Be Inferred from Appellant’s Acts, Words, and Conduct

      Mental states are almost always inferred from acts and words. Hill v. State,

161 S.W.3d 771, 775 (Tex.App. – Beaumont 2005, no pet.), citing Moore v. State,

969 S.W.2d 4, 10 (Tex.Crim.App. 1998). The courts have long recognized that

mental culpability is of such a nature that it generally must be inferred from the

circumstances under which the prohibited act occurred. Dillon v. State, 574

S.W.2d 92, 94 (Tex.Crim.App. 1978); Russo v. State, 228 S.W.3d 779, 793

(Tex.App. - Austin 2007, pet.ref’d.). A culpable mental state may be inferred by

the trier of fact from the acts, words, and conduct of the accused. Dues v. State,

634 S.W.2d 304, 306 (Tex.Crim.App. 1982); Barnes v. State, 62 S.W.3d 288, 298

(Tex.App. – Austin 2001, pet.ref’d.). Indeed, the Court of Criminal Appeals stated

long ago that a defendant’s mental state is “concealed within his own mind and can

only be determined from his words, acts, and conduct.” Moore, 969 S.W.2d at 10

(quoting Norwood v. State, 135 Tex. Crim. 406, 120 S.W.2d 806, 809

(Tex.Crim.App. 1938).

Appellant’s Specific Intent to Set Fire to the Habitation May Be Inferred from
the Evidence

      Any rational trier of fact could find beyond a reasonable doubt from

appellant’s acts and words, evidence of gasoline at the scene, and expert testimony

that appellant had the specific intent to commit arson of the habitation by first

igniting Higgins. The jury could rationally infer appellant’s intent from his

                                          35
dousing the tapestry and then Higgins with gasoline and trying to set her on fire

with a cigarette while keeping her in a locked room of the house where she

thought she was going to die. Appellant also had a second can of gasoline in the

living room that he attempted to use. In her 911 call, Higgins expressed fear that

about the house being burnt down because appellant had purposefully poured

gasoline in her room and spilled it in the house as he chased her. Further, a master

fire and arson investigator found two empty gasoline cans at the back of the house,

and the house overwhelmingly smelled of gasoline. The jury could rationally infer

from the totality of this evidence that appellant had also doused the residence in

gasoline in preparation of burning it. Arson investigators determined, based on

their experience and investigation, that appellant had committed an attempted

arson.

         The evidence showed appellant’s purpose and effort in preparing to set

Higgins and the house on fire. Flores, 902 S.W.2d at 620. He only failed to ignite

her, but that failure does not render the evidence insufficient. Santellan, 939

S.W.2d at 163 (criminal attempt does not require that every act short of actual

commission of the offense be accomplished). In Cody v. State, 605 S.W.2d 271

(Tex.Crim.App. 1980), the Court upheld the defendant’s conviction for attempted

arson in absence of evidence that the defendant struck a match and actually started

a fire. The evidence in that case showed that the defendant had doused the floor of



                                          36
a building with gasoline, had a box of matches in his pocket, and there were wads

of paper in and near the gasoline.

       By dousing the tapestry and Higgins with gasoline and trying to set her on

fire with a lit cigarette, appellant did acts amounting to more than mere

preparation. He actually tried to effectuate the commission of arson, but failed.

The evidence is therefore legally sufficient to establish that appellant had the

specific intent to set fire to the habitation.

       Appellant’s third point of error should be overruled.


    STATE’S REPLY TO APPELLANT’S FOURTH POINT OF ERROR

              No variance exists between the State’s pleading and its proof of
              non-statutory allegations.

The Law Recognizes Two Types of Variances

       A variance in pleading and proof can occur in two different ways. Johnson

v. State, 364 S.W.3d 292, 294 (Tex.Crim.App.), cert.denied, 133 S.Ct. 536 (2012).

First, a variance can involve the statutory language that defines the offense. Id. As

to this type of variance, a failure to prove the statutory language pled renders the

evidence legally insufficient to support the conviction. Id., citing Geick v. State,

349 S.W.3d 542 (Tex.Crim.App. 2011). This type of variance is material. Cada v.

State, 334 S.W.3d 766, 767 (Tex.Crim.App. 2011).




                                            37
      The second type of variance involves a variance with respect to a non-

statutory allegation that describes the offense in some way. Johnson, 364 S.W.3d

at 295. For non-statutory allegations, the Court of Criminal Appeals tolerates

some variation in pleading and proof. Id. The Court tolerates “little mistakes” that

do not prejudice the defendant’s substantial rights. Id. “What is essential about

variances with respect to non-statutory allegations is that the variance should not

be so great that the proof at trial ‘shows an entirely different offense’ than what

was alleged in the charging instrument.” Id., quoting Byrd v. State, 336 S.W.3d

242, 246-47 (Tex.Crim.App. 2011).

Application of Law to Facts

      This case involves the second type of variance, to-wit: an alleged variance

with respect to a non-statutory allegation that described the offense in some way.

Johnson, 364 S.W.3d at 295. As noted in the State’s reply to the third point of

error, the State alleged in part that appellant, with the specific intent to commit the

offense of arson of a habitation, had wet the clothing and person of Jillian Higgins

with gasoline and contacted her clothing with a lit cigarette. (CR 28). Appellant

contends that the evidence only showed that he attempted to contact Higgins’s

clothing, not that he actually contacted her clothing.

      The State submits that no variance existed between the State’s allegation that

appellant contacted Higgins’s clothing and the proof at trial. Higgins testified that



                                          38
appellant threw her onto her bed, doused her and her clothing with gasoline, and

had a lit cigarette that “he was trying to touch to [her] body.” (RR VII: 27).

Higgins explained that she had her feet against appellant’s torso, and he jabbed his

lit cigarette near her feet and legs. (RR VII: 34). When asked by the prosecution if

appellant jabbed any portion of her clothing with the lit cigarette, Higgins testified,

“I was wearing long pants at the time so like, yes, in the pants vicinity.” (RR VII:

34). This testimony, albeit brief, established that appellant contacted the clothing

of Higgins with a lit cigarette, as alleged in the indictment. Or, at the very least, the

jury could infer from this testimony that appellant contacted Higgins’s clothing

with his lit cigarette. Consequently, no variance existed between the State’s

pleading and its proof. But, assuming arguendo there was a variance, it was minor

and did not constitute an entirely different offense. Johnson, 364 S.W.3d at 295.

      Appellant’s fourth point of error should be overruled.




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                                       PRAYER
      WHEREFORE, PREMISES CONSIDERED, the State prays this Court to

overrule the appellant’s points of error and to affirm the trial court’s judgment.

                                                Respectfully submitted,

                                                ROSEMARY LEHMBERG
                                                District Attorney
                                                Travis County, Texas


                                                /s/ Lisa Stewart
                                                Lisa Stewart
                                                Assistant District Attorney
                                                State Bar No. 06022700
                                                P.O. Box 1748
                                                Austin, Texas 78767
                                                Lisa.Stewart@traviscountytx.gov
                                                AppellateTCDA@traviscountytx.gov
                                                (512) 854-9400
                                                Fax No. 854-4810



                       CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(2)(A), the State

certifies that the length of this brief is 7,175 words. The State also certifies,

pursuant to Texas Rule of Appellate Procedure 9.4(e), a conventional typeface 14-

point was used to generate this brief.

                                                /s/ Lisa Stewart
                                                Lisa Stewart
                                                Assistant District Attorney



                                           40
                         CERTIFICATE OF SERVICE
      I hereby certify that, on the 18th day of December, 2015, a true and correct

copy of this brief was served, by U.S. mail, electronic mail, facsimile, or

electronically through the electronic filing manager, to the Appellant’s attorney,

Randy Schaffer, Attorney at Law, 1301 McKinney, Suite 3100, Houston, Texas

77010, noguilt@swbell.net.



                                                     /s/ Lisa Stewart
                                                     Lisa Stewart
                                                     Assistant District Attorney




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