                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00029-CR


MICHELLE AARON                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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              MEMORANDUM CONCURRING OPINION 1

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      As the majority correctly concludes, the evidence is sufficient to

demonstrate that Appellant intentionally or knowingly caused serious bodily

injury, and evidence of a culpable mental state regarding use of a deadly weapon

is not required. See Bailey v. State, 38 S.W.3d 157, 159 (Tex. Crim. App. 2001).

However, I believe Appellant’s second point is directed not to whether the State

proved Appellant intentionally or knowingly used a deadly weapon but instead to


      1
      Tex. R. App. P. 47.4.
the issue of whether the evidence was sufficient to prove the lighter fluid was a

deadly weapon under section 1.07(a)(17)(B).         See Tex. Penal Code Ann.

§ 1.07(a)(17)(B) (West Supp. 2012). Therefore, I separately concur to address

the sufficiency of the evidence to show that the “flammable fluid,” as alleged in

the indictment, was “capable of causing death or serious bodily injury.” Id.

      Appellant’s own testimony at trial showed she “sprayed” lighter fluid on

Miguel while he was lying on the bed “to get him to shut up.” Appellant claimed

she then left the bedroom.       After Miguel began “hollering” for a cigarette,

Appellant took a lit cigarette, walked back to the bedroom, and “thumped” the

cigarette at Appellant. 2   Miguel suffered third-degree burns on his back and

required skin grafts. There was testimony that the lighter fluid Appellant used is

a flammable liquid.

      This evidence is sufficient to support a finding that the flammable liquid, in

the manner of its use, was capable of causing death or serious bodily injury.

Whether any weapon is deadly is a question for the fact-finder. See Polk v.

State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). The most important factor in

determining whether a weapon is deadly is the manner in which the weapon was

used. Dominique v. State, 598 S.W.2d 285, 286 (Tex. Crim. App. [Panel Op.]

1980). Anything that actually is used to cause serious bodily injury is a deadly

weapon because a thing that actually causes serious bodily injury is, necessarily,

      2
      Miguel testified he was asleep during the entire episode and woke up
when he was on fire.

                                         2
capable of causing serious bodily injury. Magee v. State, 994 S.W.2d 878, 890

(Tex. App.—Waco 1999, pet. ref’d) (quoting Tyra v. State, 897 S.W.2d 796, 798

(Tex. Crim. App. 1995)).    In short, the lighter fluid, as used by Appellant as

revealed by the evidence at trial, was capable of causing serious bodily injury

and, thus, was a deadly weapon under section 1.07(a)(17)(B). See Ellis v. State,

No. 02-02-00416-CR, 2004 WL 177851, at *3 (Tex. App.—Fort Worth Jan. 29,

2004, pet. ref’d) (mem. op., not designated for publication) (in prosecution for

aggravated assault with a deadly weapon, holding evidence defendant doused

wife in gasoline and threated to ignite it sufficient to show gasoline was deadly

weapon capable of causing serious bodily injury or death); see also McDowell v.

State, 235 S.W.3d 294, 297 (Tex. App.—Texarkana 2007, no pet.) (holding

evidence sufficient to show gasoline used as a deadly weapon in arson

prosecution); Magee, 994 S.W.2d at 890 (in murder prosecution, holding

evidence sufficient to support deadly-weapon finding for alleged “gasoline” after

defendant doused wife in gasoline and lit her on fire); Rice v. State, 771 S.W.2d

599, 600–01 (Tex. App.—Houston [14th Dist.] 1989, no pet.) (in murder

prosecution, holding evidence sufficient to show gasoline was deadly weapon

after defendant poured gasoline on victim and ignited victim with cigarette

lighter); cf. Kingsbury v. State, 14 S.W.3d 405, 409 (Tex. App.—Waco 2000, no

pet.) (holding, in dicta, that evidence of use of flammable liquid in deadly-conduct

prosecution was sufficient to prove use of a deadly weapon).



                                         3
      Therefore, I would overrule Appellant’s second point on the basis that the

evidence is sufficient to support a finding that the alleged flammable liquid was a

deadly weapon in the manner of its use. Because I also would affirm the trial

court’s judgment, I concur.




                                                   LEE GABRIEL
                                                   JUSTICE

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 22, 2013




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