                                                                         ACCEPTED
                                                                     03-15-00209-CR
                                                                             6143519
                                                          THIRD COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                                                7/20/2015 4:25:06 PM
                                                                   JEFFREY D. KYLE
                                                                              CLERK


                    NO. 03-15-00209-CR
            _________________________________   FILED IN
                                         3rd COURT OF APPEALS
                                             AUSTIN, TEXAS
                       IN THE            7/20/2015 4:25:06 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
            _________________________________

                 BRIEF FOR APPELLANT
            _________________________________




                                       Randy Schaffer
                                       State Bar No. 17724500

                                       1301 McKinney, Suite 3100
                                       Houston, Texas 77010
                                       (713) 951-9555
                                       (713)951-9854 (facsimile)
                                       noguilt@swbell.net

                                       Attorney for Appellant
ORAL ARGUMENT REQUESTED                DEANDRE DWIGHT JOSEPH
                        IDENTITY OF PARTIES


Appellant:              DeAndre Dwight Joseph
                        Inmate No. 1989213
                        Byrd Unit
                        21 FM 247
                        Huntsville, Texas 77320


Trial Counsel:          Raymond Espersen
                        404 W. 13th Street
                        Austin, Texas 78701


Appellate Counsel:      Randy Schaffer
                        1301 McKinney, Suite 3100
                        Houston, Texas 77010


Trial Prosecutors:      Maria DeFord
                        Joe Frederick
                        509 W. 11th Street., Suite 200
                        Austin, Texas 78701


Appellate Prosecutor:   Rosemary Lehmberg
                        509 W. 11th Street
                        Austin, Texas 78701

Trial Judge:            Brenda Kennedy
                        403rd District Court
                        509 W. 11th Street
                        Austin, Texas 78701




                                    i
                                              SUBJECT INDEX

                                                                                                                   Page

STATEMENT OF THE CASE .........................................................................                       1

STATEMENT REGARDING ORAL ARGUMENT ......................................                                              1

ISSUES PRESENTED......................................................................................                2

STATEMENT OF FACTS ...............................................................................                    2

SUMMARY OF THE ARGUMENT ...............................................................                               7

ISSUE ONE ......................................................................................................      8

         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.

         STATEMENT OF FACTS .....................................................................                     8

         ARGUMENT AND AUTHORITIES ....................................................                                9

         A. The Standard Of Review ..................................................................                 9

         B. Gasoline Is Not A “Weapon” ...........................................................                    9

         C. Even If Gasoline Can Be A Deadly Weapon, Appellant Did
            Not Use Or Exhibit It As A Deadly Weapon ...................................                             11

ISSUE TWO .....................................................................................................      13

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

         STATEMENT OF FACTS .....................................................................                    13
                                                            ii
                                                                                                                  Page

         ARGUMENT AND AUTHORITIES ....................................................                              13

ISSUE THREE ..................................................................................................      17

         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.

         STATEMENT OF FACTS .....................................................................                   17

         ARGUMENT AND AUTHORITIES ....................................................                              18

ISSUE FOUR ....................................................................................................     19

         THE EVIDENCE IS LEGALLY INSUFFICIENT TO
         SUSTAIN    APPELLANT’S    CONVICTION  FOR
         ATTEMPTED ARSON OF A HABITATION BECAUSE
         THERE IS A MATERIAL VARIANCE BETWEEN THE
         INDICTMENT ALLEGATION THAT HE WETTED THE
         COMPLAINANT WITH GASOLINE AND CONTACTED
         HER CLOTHING WITH A LIT CIGARETTE AND THE
         TESTIMONY THAT HE ATTEMPTED TO CONTACT
         HER WITH A LIT CIGARETTE.

         STATEMENT OF FACTS .....................................................................                   20

         ARGUMENT AND AUTHORITIES ....................................................                              20

CONCLUSION .................................................................................................        21

CERTIFICATE OF SERVICE .........................................................................                    22

CERTIFICATE OF COMPLIANCE ................................................................                          22




                                                           iii
                                       INDEX OF AUTHORITIES

                                                        Cases                                                       Page

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) ................................                              16

Arline v. State, 721 S.W.2d 348 (Tex. Crim. App. 1986).....................................                           16

Blanson v. State, 107 S.W.3d 103 (Tex. App.—Texarkana 2003, no pet.)..........                                        16

Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012) ...................................                             12

Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) .......................................                           9

Cates v. State, 102 S.W.3d 735 (Tex. Crim. App. 2003) ...................................... 11-12

Chavez v. State, 740 S.W.2d 21 (Tex. App.—El Paso 1987, no pet.).................. 14, 15

Doty v. State, 585 S.W.2d 726 (Tex. Crim. App. 1979) ....................................... 20-21

Eldred v. State, 578 S.W.2d 721 (Tex. Crim. App. 1979) ....................................                           14

Ellis v. State, 2004 WL 177851 (Tex. App.—Fort Worth 2004, pet. ref’d) ........                                       11

Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) ...................................                           20

Hernandez v. State, 903 S.W.2d 109 (Tex. App.—Fort Worth 1995, pet. ref’d) .                                          21

Jackson v. Virginia, 443 U.S. 307 (1979) .............................................................                 9

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) ........................................................................................     11

Kingsbury v. State, 14 S.W.3d 405 (Tex. App.—Waco 2000, no pet.) ...............                                      11

Louis v. State, 393 S.W.3d 246 (Tex. Crim. App. 2012)......................................                           18

Magee v. State, 994 S.W.2d 878 (Tex. App.—Waco 1999, pet. dism’d) ............                                        11


                                                           iv
                                                                                                       Page

Nash v. State, 115 S.W.3d 136 (Tex. App.—Texarkana 2013, no pet.)............... 15, 16

Rice v. State, 771 S.W.2d 599 (Tex. App.—Houston [1st Dist.] 1989, no pet.)..                            11

Rogers v. State, 908 S.W.2d 239 (Tex. App.—El Paso 1995, no pet.) ................                       11

Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011) ...................................... 13, 14

Williams v. State, 314 S.W.3d 45 (Tex. App.—Tyler 2010, pet. ref’d)...............                       16

Windham v. State, 638 S.W.2d 486 (Tex. Crim. App. 1982) ...............................                  21

                                        Statutory Provisions

TEX. CODE CRIM. PROC. art. 36.19 (West 2014) ...................................................         15

TEX. CODE CRIM. PROC. art. 37.09(1) (West 2014) ...............................................          13

TEX. GOV’T CODE §508.145(d)(1) (Vernon 2012) ................................................            17

TEX. PENAL CODE §1.07(a)(17)(B) (West 2014) ...................................................           9

TEX. PENAL CODE §12.23 (West 2014) .................................................................     16

TEX. PENAL CODE §15.01(a) (West 2014) .............................................................      18

TEX. PENAL CODE §22.01(a)(2) (West 2014) .................................................... 9, 12, 14

TEX. PENAL CODE §22.01(c) (West 2014) ............................................................. 12,14

TEX. PENAL CODE §22.02(a)(2) (West 2014) ........................................................ 9, 14

TEX. PENAL CODE §28.02(a)(2) (West 2014) ........................................................        18




                                                     v
                                          Miscellaneous                                              Page

www.merriam-webster.com/dictionary/accelerant ...............................................          10

www.merriam-webster.com/dictionary/fire ..........................................................     10

www.merriam-webster.com/dictionary/gasoline ..................................................         10

www.merriam-webster.com/dictionary/weapon ...................................................          10




                                                    vi
                         STATEMENT OF THE CASE

      Appellant pled not guilty to aggravated assault and attempted arson of a

habitation (habitual offender) in the 403rd District Court of Travis County before

the Honorable Brenda Kennedy. The jury convicted him on both counts and, after

he pled true to the enhancement paragraphs, assessed his punishment at 54 years in

prison and a $10,000 fine for aggravated assault and 25 years in prison for

attempted arson of a habitation. The trial court entered an affirmative finding of a

deadly weapon in the aggravated assault judgment.         Ray Espersen of Austin

represented him.

              STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument because the issues are important and his

predicament is serious. The State offered to dismiss the aggravated assault if he

would plead guilty and accept non-aggravated sentences of eight years for

attempted arson of a habitation and six months for unauthorized use of a motor

vehicle (2 R.R. 5-6). Had he done so, he would have become eligible for parole

after serving about one year. He rejected the plea bargain (2 R.R. 6). He was

convicted; sentenced to 54 years for aggravated assault; and, as a result of the

deadly weapon finding, must serve 27 years before he becomes eligible for parole.

He did not commit the offenses charged and requests the opportunity to present

argument to convince this court.



                                         1
                              ISSUES PRESENTED

             1. Whether 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.

             2. Whether the trial court reversibly erred in refusing to
                instruct the jury on the lesser included offense of
                assault.

             3. Whether 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.

             4. Whether the evidence is legally insufficient to sustain
                appellant’s conviction for attempted arson of a
                habitation because there is a material variance
                between the indictment allegation that he wetted the
                complainant with gasoline and contacted her clothing
                with a lit cigarette and the testimony that he attempted
                to contact her with a lit cigarette.

                           STATEMENT OF FACTS

A.    The Indictment

      Count one alleged that, on or about July 26, 2014, appellant did

“intentionally or knowingly threaten Jillian Higgins, with imminent bodily injury

by brandishing a bottle containing gasoline at Jillian Higgins and by wetting the

clothing and person of Jillian Higgins with gasoline and . . . did then and there use

or exhibit a deadly weapon, to-wit: gasoline, during the commission of said

offense” (C.R. 27).



                                         2
       Count two alleged that appellant, “with specific intent to commit the offense

of Arson of a Habitation, do an act, to-wit: wetting the clothing and person of

Jillian Higgins with gasoline and contacting 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” (C.R. 28).

B.     The State’s Case

       Appellant lived in a homeless shelter in Austin where Rosalie Miller worked

(7 R.R. 111). They began to date during the Christmas holidays in 2013, and he

moved into her room at a house that she shared with four roommates (7 R.R. 22-

23, 112).1 When Miller ended the relationship in July of 2014, appellant became

upset and called her frequently to beg her to reconsider (7 R.R. 112-13). His tone

during these telephone calls ranged from desperate to threatening (7 R.R. 113-14).

       Appellant called Miller on July 26, 2014, and said that he was “going to go

after” her family and friends (7 R.R. 115). He sent her text messages that she was

“pissing [him] off” and was “playing dangerous games,” and that he was “going to

play with the ones you have heart for” (7 R.R. 118, 120).

       Mike Walton, Miller’s next-door neighbor, saw appellant arrive at her

residence about 5:00 p.m. on July 26 (7 R.R. 102-103). Appellant, who was

       1
        Miller acknowledged that residents of homeless shelters often have emotional and
psychological problems and that she violated the rules of the shelter by dating appellant (7 R.R.
122).

                                               3
agitated and talking fast, said that he was looking for Miller, had “never loved like

that before,” and there would be “bloodshed tonight” (7 R.R. 104-06, 108).

       Appellant helped Jillian Higgins, another roommate, dig a hole in the yard to

bury her pet rat (7 R.R. 22, 24-25). He followed her into her room, shut the door,

and stood between her and the door (7 R.R. 26). She asked him to leave. He said

that he would not leave and wanted her to help him contact Miller. He was

smoking a cigarette and had a 32-ounce water bottle that he said was full of

gasoline (7 R.R. 26-27, 64). They stayed in her room with the lights off for two

hours (7 R.R. 27).2

       Rhett Radon, another roommate, entered the house, smelled the odor of

gasoline, and noticed that someone had turned off the light in Higgins’ room (7

R.R. 84-85). Radon knocked on her door (7 R.R. 86). Higgins opened it after a

delay and was visibly upset (7 R.R. 87). Radon asked if everything was okay

because it smelled like gasoline (7 R.R. 27). Higgins said that it was but rolled her

eyes and “mouthed” to call the police (7 R.R. 89). Radon saw a silhouette in the

room and assumed that appellant was there. Radon went outside, called 911, and

said that her roommate was being held hostage (7 R.R. 90).

       Appellant asked Higgins if she had made a signal to Radon (7 R.R. 27). She

said yes. He turned on the lights and said, “You fucked up.” He removed a


       2
         Appellant smoked continuously and put out his cigarettes in a cup, in the cat’s food
dish, and on the floor (7 R.R. 31, 52-53).

                                             4
tapestry from the wall and may have poured gasoline on it but did not try to ignite

it (7 R.R. 27, 63-64). He threw her on the bed and poured gasoline on her and her

clothing (7 R.R. 27). He tried to touch her with a lit cigarette, but she was not sure

that he did (7 R.R. 27, 34, 73).3 He said that he wanted to use her as a pawn to get

to Miller (7 R.R. 30). She kicked him, ran outside, and screamed for help (7 R.R.

27-28). He pulled her back into her room, went to the living room, and returned

with a gas can. As he unscrewed the top, she exited through the bedroom window

and asked a neighbor to call the police (7 R.R. 28, 33).                         Although she felt

threatened and was afraid that he would hurt her, she was not injured, and he did

not set a fire (7 R.R. 28, 42, 60, 66).4

       Austin Police Department (APD) patrolman Jared Carruth arrived and

observed that Higgins was distraught and smelled of gasoline (7 R.R. 127-28). He

did not smell smoke or fire, and nothing had been burned (7 R.R. 131-33).

       APD arson investigator Joseph Loughran arrived and saw a can half full of

gasoline and a plastic water bottle containing a liquid (7 R.R. 147-49).5 Gasoline

can be a deadly weapon when it is ignited and someone is injured or killed (7 R.R.


       3
         Higgins testified, “He had a lit cigarette in his hand that he was trying to touch to my
body” (7 R.R. 27). “He was kind of like jabbing at me with his lit cigarette sort of near my feet
and legs” (7 R.R. 34).
       4
           Higgins acknowledged that appellant could have used a lighter on the bedroom floor to
set a fire had he wanted to do so (7 R.R. 59-60).
       5
           A toxicologist testified that the liquid was gasoline (7 R.R. 222).


                                                   5
164-65). However, gasoline does not ignite by itself and requires an ignition

source (7 R.R. 177-78). It is not very likely that a cigarette butt can ignite gasoline

(7 R.R. 165). Appellant could have set a fire in the two hours that he was in the

house had he wanted to do so (7 R.R. 176). The scene was consistent with

appellant intending to scare Higgins rather than set a fire (7 R.R. 189).6

C.     The Arguments

       The prosecutors argued that appellant was guilty of aggravated assault

because he threatened Higgins with imminent bodily injury by pouring gasoline on

her and trying to touch her with a lit cigarette (8 R.R. 21-22, 35-36).7 He was

guilty of attempted arson of a habitation because he demonstrated his intent to burn

down the house by pouring gasoline on Higgins and the tapestry (8 R.R. 24).

       Defense counsel argued that appellant was not guilty of aggravated assault

because unignited gasoline is not a deadly weapon (8 R.R. 26, 33). He was not

guilty of attempted arson of a habitation because he intended to scare and

manipulate Higgins to contact Miller rather than to set fire to the house (8 R.R. 27-

28, 30-33).




       6
         Loughran believed that appellant intended to set fire to Higgins rather than the tapestry
or the house (7 R.R. 179).
       7
        One prosecutor initially argued that the deadly weapon was the water bottle but
subsequently argued that it was the gasoline (8 R.R. 20, 22).

                                                6
                      SUMMARY OF THE ARGUMENT

      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

Jillian Higgins with gasoline. Gasoline is an accelerant, not a weapon. Unignited

gasoline poured on a person is not capable of causing death or serious bodily

injury. The trial court refused to instruct the jury on misdemeanor assault. A

properly instructed jury rationally could have convicted him of assault had it

believed that he threatened her with imminent bodily injury but had a reasonable

doubt that he used or exhibited gasoline as a deadly weapon. This court must

reform the judgment to a conviction for Class C misdemeanor assault and remand

for a new trial on punishment or, in the alternative, reverse the conviction and

remand for a new trial at which the jury can consider the lesser included offense.

      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. He easily could have set a fire in the two hours that he was

in the house had he wanted to do so. The evidence demonstrated that he intended

to scare Higgins rather than set a fire.     Furthermore, the evidence is legally

insufficient to sustain the conviction because there is a material variance between

the indictment allegation that he wetted Higgins with gasoline and contacted her




                                         7
clothing with a lit cigarette and the testimony that he attempted to contact her with

a lit cigarette. This court must acquit him of attempted arson.

                                    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.

                            STATEMENT OF FACTS

       The aggravated assault count alleged that appellant threatened Higgins with

imminent bodily injury by wetting her person and clothing with gasoline, a deadly

weapon (C.R. 27). The evidence demonstrated that he poured gasoline on her and

her clothing and tried to touch her with a lit cigarette in an effort to cause her to

help him contact Miller (7 R.R. 26-27). She felt threatened and afraid that he

would hurt her; but she was not injured, and he did not set a fire (7 R.R. 28, 42, 60,

66).

       An arson investigator testified that gasoline can be a deadly weapon when it

is ignited and someone is injured or killed (7 R.R. 164-65). However, gasoline

does not ignite itself and requires an ignition source (7 R.R. 177-78). It is unlikely

that a cigarette butt can ignite gasoline (7 R.R. 165).




                                           8
      Appellant unsuccessfully moved for a directed verdict on the basis that the

State did not prove beyond a reasonable doubt that unignited gasoline is a deadly

weapon (7 R.R. 235-38).

                       ARGUMENT AND AUTHORITIES

A.    The Standard Of Review

      A challenge to the legal sufficiency of the evidence requires the appellate

court to consider the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011).

B.    Gasoline Is Not A “Weapon.”

      A person commits an assault if he intentionally or knowingly threatens

another with imminent bodily injury. TEX. PENAL CODE §22.01(a)(2) (West 2014).

The assault becomes aggravated if he uses or exhibits a deadly weapon. TEX.

PENAL CODE §22.02(a)(2) (West 2014).          A “deadly weapon” is defined as

“anything that in the manner of its use or intended use is capable of causing death

or serious bodily injury.” TEX. PENAL CODE §1.07(a)(17)(B) (West 2014). Texas

courts have concluded that gasoline is a deadly weapon without analyzing whether,

in fact, it is even a weapon.

      The Penal Code does not define “weapon.” Thus, the court must consider



                                         9
the ordinary meaning of the word. A “weapon” is defined as “something (such as

a gun, knife, club, or bomb) that is used for fighting or attacking someone or

defending yourself when someone is attacking you.”                    www.merriam-

webster.com/dictionary/weapon. “Gasoline” is defined as a “volatile flammable

liquid hydrocarbon mixture used as a fuel especially for internal combustion

engines and usually blended from several products of natural gas and petroleum.”

www.merriam-webster.com/dictionary/gasoline.           “Accelerant” is defined as “a

substance used to accelerate a process (as the spreading of a fire).” www.merriam-

webster.com/dictionary/accelerant.      “Fire” is defined as “the phenomenon of

combustion    manifested       in   light,    flame,   and   heat.”   www.merriam-

webster.com/dictionary/fire.

      Where the actor pours gasoline on the complainant and ignites it with an

object (lighter, match, or cigarette), the object is the weapon, the gasoline is the

accelerant, and the fire is the product. By analogy, where the actor strikes the

complainant with a motor vehicle, the vehicle is the weapon, not the gasoline that

propels the vehicle. Similarly, the gun and the bow are weapons, not the bullet and

the arrow.

      Appellant poured gasoline on Higgins. Unignited gasoline poured on a

person is not capable of causing death or seriously bodily injury.         Thus, the

gasoline was not a “weapon” under the ordinary meaning of the word.



                                             10
C.    Even If Gasoline Can Be A Deadly Weapon, Appellant Did Not Use Or
      Exhibit It As A Deadly Weapon.

      Texas courts have held that gasoline is not a deadly weapon per se but can

be in the manner of its use or intended use. See Rogers v. State, 908 S.W.2d 239,

242 (Tex. App.—El Paso 1995, no pet.).         It   is a deadly weapon where the

defendant used it to set the complainant on fire, resulting in death, Rice v. State,

771 S.W.2d 599, 601 (Tex. App.—Houston [14th Dist.] 1989, no pet.); Magee v.

State, 994 S.W.2d 878, 890 (Tex. App.—Waco 1999, pet. dism’d); sprayed it into

the complainant’s face and tried to ignite it with a lighter, Kingsbury v. State, 14

S.W.3d 405, 408-09 (Tex. App.—Waco 2000, no pet.); and threw it on the

complainant and threatened to set her on fire with a lighter. Ellis v. State, 2004

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

publication).

      An object that can be a deadly weapon under some circumstances is not

necessarily a deadly weapon under all circumstances. An object must have more

than “a hypothetical capability of causing death or serious bodily injury,” and a

deadly weapon finding must be supported by “evidence relating directly to the

circumstances of the criminal episode.” 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) (lit cigarette not deadly weapon in manner of its use or intended use

where defendant burned child on palm of hand); Cates v. State, 102 S.W.3d 735,

                                        11
738-39 (Tex. Crim. App. 2003) (truck that struck and killed person not used or

exhibited as deadly weapon during subsequent offense of failure to stop and render

aid absent evidence that defendant drove it in deadly manner in flight from scene).

      Assuming arguendo that gasoline can be a deadly weapon in some

circumstances, it clearly was not in this case.      Appellant poured gasoline on

Higgins in an effort to cause her to help him contact Miller. He had ample

opportunity to set a fire during the two hours that they were in her room but did not

do so. The gasoline was incapable of igniting itself, and it was unlikely that a

cigarette butt could ignite it. Thus, the evidence is legally insufficient to sustain

appellant’s conviction for aggravated assault because the gasoline was not a deadly

weapon in the manner in which he used it.

      The evidence is legally sufficient to sustain a conviction for the lesser

included offense of Class C misdemeanor assault, as the jury could have found that

appellant threatened Higgins with imminent bodily injury. See TEX. PENAL CODE

§§ 22.01(a)(2) and (c) (West 2014). Where the evidence is insufficient to sustain a

conviction for the offense charged, the appellate court may reform the judgment to

reflect a conviction for a lesser included offense for which the evidence is legally

sufficient. Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim. App. 2012). Thus,

this court must reform the judgment to reflect a conviction for Class C

misdemeanor assault and remand for a new trial on punishment.



                                         12
                                      ISSUE TWO

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

                              STATEMENT OF FACTS

       The pertinent facts are found on page 8 of appellant’s brief. The trial court

denied appellant’s request for a jury instruction on the lesser included offense of

assault in the aggravated assault case (7 R.R. 245-47).8

                        ARGUMENT AND AUTHORITIES

       An offense is a lesser included offense if, inter alia, “it is established by

proof of the same or less than all the facts required to establish commission of the

offense charged.”      TEX. CODE CRIM. PROC. art. 37.09(1) (West 2014).                 The

defendant is entitled to an instruction on a lesser included offense if it is included

within the proof necessary to establish the offense charged and there is any

evidence from which a rational jury could acquit him of the offense charged and

convict him of the lesser offense. Sweed v. State, 351 S.W.3d 63, 67-68 (Tex.

Crim. App. 2011). More than a scintilla of evidence requires submission of a

lesser included offense instruction. Id. at 68. This standard is satisfied “if some

evidence refutes or negates other evidence establishing the greater offense or if the

evidence presented is subject to different interpretations.” Id. Appellate courts


       8
         Defense counsel argued unsuccessfully to the court that the jury could doubt whether
the gasoline was a deadly weapon (7 R.R. 245-47).

                                             13
favor submitting lesser included offense instructions so the jury will not have the

unpalatable option of convicting a defendant when it is not convinced that he

committed the offense charged or acquitting him when it is convinced that he

committed a lesser offense. See Eldred v. State, 578 S.W.2d 721, 723 (Tex. Crim.

App. 1979).

      A person commits an assault if he intentionally or knowingly threatens

another with imminent bodily injury. TEX. PENAL CODE §22.01(a)(2) (West 2014).

This offense usually is a Class C misdemeanor. TEX. PENAL CODE §22.02(c) (West

2014). The assault becomes aggravated if he uses or exhibits a deadly weapon.

TEX. PENAL CODE §22.02(a)(2) (West 2014). Thus, assault is a lesser included

offense of aggravated assault. If there is more than a scintilla of evidence that

would enable the jury to find that the alleged weapon was not capable of causing

death or serious bodily injury in the manner of its use or intended use, the

defendant is entitled to an instruction on assault. Cf. Sweed, 351 S.W.3d at 69.

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

there is a fact question as to whether the object used was a deadly weapon. In

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

held a knife to the complainant’s back during a robbery. Although the evidence

was legally sufficient to establish that the knife was a deadly weapon and that he

committed aggravated robbery, the trial court erred in refusing to submit an



                                         14
instruction on robbery, as the jury could have concluded that the knife was not

used or intended to be used in a deadly manner. Id. at 23; cf. Nash v. State, 115

S.W.3d 136, 139 (Tex. App.—Texarkana 2013, no pet.) (error to refuse instruction

on robbery in aggravated robbery case where there was fact question as to whether

object used was deadly weapon).

      Appellant poured gasoline on Higgins but did not set a fire, and she was not

injured. The arson investigator testified that gasoline does not ignite itself and

requires an ignition source. The jury was not compelled to find that the unignited

gasoline was a deadly weapon. It rationally could have concluded that appellant

threatened Higgins with imminent bodily injury but did not use or exhibit a deadly

weapon. Threatening a person with imminent bodily injury without using a deadly

weapon is a Class C misdemeanor assault.           However, in the absence of an

instruction on assault, the court’s charge gave the jury no palatable option if it were

not convinced that the gasoline was a deadly weapon. The evidence raised the

lesser included offense of assault, and the trial court erred in refusing the

instruction.

      A conviction must be reversed if jury charge error “was calculated to injure

the rights of the defendant, or it appears that he has not had a fair and impartial

trial.” TEX. CODE CRIM. PROC. art. 36.19 (West 2014). Where jury charge error is

preserved for appeal, a new trial is required if the defendant suffered “any actual



                                          15
harm, regardless of degree.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1984); Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).

      A finding of harm is “essentially automatic” where the omission of a lesser

included offense instruction left the jury with the option of convicting the

defendant of the offense charged or acquitting him although he clearly committed

some offense. Nash, 115 S.W.3d at 139-40; Williams v. State, 314 S.W.3d 45, 53

(Tex. App.—Tyler 2010 pet. ref’d). In Blanson v. State, 107 S.W.3d 103 (Tex.

App.—Texarkana 2003, no pet.), the defendant approached a store employee with

a pocketknife in his hand as he attempted to leave a room where he had been

detained for theft. He was charged with aggravated robbery. The trial court

instructed the jury in the charge without objection that a knife is a deadly weapon.

This erroneous instruction caused egregious harm because there was a fact

question as to whether the knife was a deadly weapon in the manner of its use or

intended use. Id. at 106. If an erroneous instruction that an object is a deadly

weapon causes egregious harm, the refusal to give the jury the option of convicting

the defendant of a lesser included offense if it has a reasonable doubt that the

object is a deadly weapon clearly causes some harm.

      Had the jury convicted appellant of Class C misdemeanor assault, the

maximum sentence would have been a $500 fine. TEX. PENAL CODE §12.23 (West

2014) one year in the county jail. He was convicted of aggravated assault with a



                                        16
deadly weapon, enhanced by prior felony convictions, and sentenced to 54 years in

prison. He is not eligible for release on parole for 27 years, when his “actual

calendar time served, without consideration of good conduct time, equals one-half

of the sentence.” TEX. GOV’T CODE §508.145(d)(1) (Vernon 2012). The harm was

substantial. Accordingly, he is entitled to a new trial at which the jury can consider

the lesser included offense of Class C assault.

                                  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.

                            STATEMENT OF FACTS

      The attempted arson of a habitation count alleged that appellant, with the

specific intent to commit the offense of arson of a habitation, wetted Higgins’

person and clothing with gasoline and contacted her clothing with a lit cigarette

while she was inside the habitation (C.R. 28). The evidence demonstrated that he

removed a tapestry from the wall and may have poured gasoline on it but did not

try to ignite it and that he poured gasoline on Higgins and her clothing and tried to

touch her with a lit cigarette in an effort to cause her to help him contact Miller (7

R.R. 26-27, 63-64). He did not set a fire (7 R.R. 66).

      An arson investigator testified that appellant could have set a fire in the two



                                         17
hours that he was in the house had he wanted to do so (7 R.R. 176). The scene was

consistent with appellant intending to scare Higgins rather than set a fire (7 R.R.

189).9

         Appellant unsuccessfully moved for a directed verdict on the basis that the

State did not prove beyond a reasonable doubt that he had the specific intent to

commit the offense of arson of a habitation (7 R.R. 238-39).

                          ARGUMENT AND AUTHORITIES

         The issue is whether the jury “could have rationally determined beyond a

reasonable doubt from the totality of the . . . evidence viewed in a light most

favorable to its verdict” that appellant had the specific intent to set fire to the

habitation. Cf. Louis v. State, 393 S.W.3d 246, 251 (Tex. Crim. App. 2012).

There is no evidence that he had this specific intent.

         A person commits the offense of arson of a habitation if he starts a fire or

causes an explosion with the intent to destroy or damage a habitation. TEX. PENAL

CODE §28.02(a)(2) (West 2014). A person commits a criminal 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.

TEX. PENAL CODE §15.01(a) (West 2014). Thus, a person commits the offense of

attempted arson of a habitation if he attempts to start a fire with the specific intent


         9
          The investigator believed that appellant intended to set fire to Higgins rather than the
tapestry or the house (7 R.R. 179).

                                               18
to destroy or damage a habitation.

      The evidence did not establish beyond a reasonable doubt that appellant

attempted to start a fire with the specific intent to destroy or damage the house.

Higgins was not sure whether he poured gasoline on the tapestry but was sure that

he did not try to ignite it although he had ample opportunity to do so. He poured

gasoline on her, tried to touch her with a lit cigarette, and said that he wanted to

use her as a pawn to get to Miller. The arson investigator acknowledged that his

intent was to scare Higgins rather than start a fire.

      Appellant’s conduct certainly merited punishment. However, the evidence

did not establish beyond a reasonable doubt that he had the specific intent to set

fire to the house. Accordingly, he is entitled to an appellate acquittal of the offense

of attempted arson of a habitation.

                                      ISSUE FOUR

             THE EVIDENCE IS LEGALLY INSUFFICIENT TO
             SUSTAIN APPELLANT’S CONVICTION FOR
             ATTEMPTED ARSON OF A HABITATION
             BECAUSE THERE IS A MATERIAL VARIANCE
             BETWEEN THE INDICTMENT ALLEGATION
             THAT HE WETTED THE COMPLAINANT WITH
             GASOLINE AND CONTACTED HER CLOTHING
             WITH   A  LIT    CIGARETTE   AND   THE
             TESTIMONY THAT HE ATTEMPTED TO
             CONTACT HER WITH A LIT CIGARETTE.




                                           19
                            STATEMENT OF FACTS

      The attempted arson of a habitation count alleged, in pertinent part, that

appellant wetted the complainant’s clothing and person with gasoline and

contacted her clothing with a lit cigarette while she was inside a habitation (C.R.

28). The evidence demonstrated that he tried to touch her with a lit cigarette, but

she was not sure that he did (7 R.R. 27, 34, 73). She testified, “He had a lit

cigarette in his hand that he was trying to touch to my body” (7 R.R. 27). “He was

kind of like jabbing at me with his lit cigarette sort of near my feet and legs” (7

R.R. 34).

                      ARGUMENT AND AUTHORITIES

      The indictment alleged that appellant committed the offense of attempted

arson of a habitation by wetting the complainant with gasoline and contacting her

clothing with a lit cigarette. The evidence established that he attempted to contact

her with a lit cigarette.   The evidence is legally insufficient to sustain the

conviction because there is a material variance between the pleading and the proof.

      A material variance between the pleading and the proof requires entry of a

judgment of acquittal. Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App.

2001). Where the indictment alleges the inchoate crime of criminal attempt, the

evidence is legally insufficient if the State proves that the defendant committed an

act different than the act alleged. See Doty v. State, 585 S.W.2d 726, 728 (Tex.



                                        20
Crim. App. 1979) (testimony that defendant did not pay hired killer insufficient to

prove attempted capital murder indictment allegation that defendant paid him to

commit murder); Windham v. State, 638 S.W.2d 486, 487-88 (Tex. Crim. App.

1982) (testimony that defendant pulled trigger and gun clicked insufficient to prove

attempted murder indictment allegation that defendant shot at complainant);

Hernandez v. State, 903 S.W.2d 109, 115 (Tex. App.—Fort Worth 1995, pet. ref’d)

(testimony that defendant’s hand touched officer’s holster during struggle

insufficient to prove attempt to take peace officer’s firearm indictment allegation

that defendant attempted to remove firearm from holster). Accordingly, appellant

is entitled to an appellate acquittal for the offense of attempted arson of a

habitation because of the material variance between the indictment allegation and

the testimony.




                                        21
                                   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 it 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

                                               1301 McKinney, Suite 3100
                                               Houston, Texas 77010
                                               (713) 951-9555
                                               (713) 951-9854 (facsimile)
                                               noguilt@swbell.net

                                               Attorney for Appellant
                                               DEANDRE DWIGHT JOSEPH


                          CERTIFICATE OF SERVICE

      I served a copy of this document on Rosemary Lehmberg, Travis County

District Attorney, P.O. Box 1748, Austin, Texas, 78767, by e-filing and by United

States mail, postage prepaid, on July 20, 2015.

                                                     /s/ Randy Schaffer
                                                     Randy Schaffer




                                          22
                      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 4,860 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




                                          23
