                                                                                                                      ACCEPTED
                                                                                                                  03-15-00209-CR
                                                                                                                          8265438
                                                                                                       THIRD COURT OF APPEALS
                                                                                                                  AUSTIN, TEXAS
                                         SCHAFFER LAW OFFICES                                               12/16/2015 2:00:11 PM
                                                  NOT A PARTNERSHIP                                             JEFFREY D. KYLE
                                                                                                                           CLERK
                                                 1021 MAIN, SUITE 1440
                                                HOUSTON, TEXAS 77002
Randy Schaffer, P.C.                                                                                    (?13) 951-9555
     noguilt@swbell.net                                                                            FAX: (713) 951-9854
Josh Schaffer, P.L.L.C.                                                                     FILEDvvvvw.schafferfirrn.corn
                                                                                                  IN
    josh@joshschafferlaw.com                                                         3rd COURT OF APPEALS
Joel Hayter                                                                               AUSTIN, TEXAS
    joelhayterlaw@gmail.com                                                          12/16/2015 2:00:11 PM
                                                                                         JEFFREY D. KYLE
         December 16, 2015                                                                    Clerk

         Jeffrey D. Kyle
         Clerk, Third Court of Appeals
         P.O. Box 12547
         Austin, Texas 78711-2547

         Re:       Joseph v. State
                   No. 03-15-00209-CR

         Dear Mr. Kyle:

        Please bring to the attention of the Court the recent decision in Pruett v. State, No. 02-14-00222-
        CR (Tex. App-Fort Worth, December 10, 2015). The defendant set fire to a house. By the
        time the fire depmiment an-ived, a neighbor had put out pmi of the fire with a garden hose, and
        the remaining fire had "played out" into the ym·d and was "burning down." There was no
        evidence that the neighbor or the firefighters were in actual danger of death or serious bodily
        injury. The defendant was convicted of arson. The comi entered an affirmative finding in the
        judgment that the fire constituted a deadly weapon. The court of appeals held that the evidence
        was legally insufficient to support the deadly weapon finding, focusing on what happened rather
        than on what could have happened. Pruett is relevant to Issue One, in which appellant contends
        that the evidence is legally insufficient to sustain his conviction for aggravated assault because,
        by wetting the complainant with gasoline without starting a fire, he did not use or exhibit a
        deadly weapon.

        I also want to address the State's failure to file a brief. I was hired on June 8, 2015. Appellant's
        brief was due on June 15. I requested an extension oftime until July 31. I filed a 21-page brief,
        raising three sufficiency of the evidence issues and a jury chm·ge issue, on July 20. The State's
        brief was due on August 19. It has obtained four extensions of time, and its brief is due on
        December 18. The Court should deny any request for an additional extension, as five months is
        plenty of time to respond, and appellant is incarcerated on legally insufficient evidence.

        Sincerely,



        Randy Schaffer

        RS/ro

        cc:       Lisa Stewart
