                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00222-CR


JEFFERY LYNN PRUETT                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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        FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1310783D

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                                   OPINION

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      Appellant Jeffery Lynn Pruett appeals his conviction and twenty-year

sentence for arson. Tex. Penal Code Ann. § 28.02 (West 2011). In two issues,

he challenges the sufficiency of the evidence to support the guilty finding and the

deadly weapon finding. We affirm as modified.
                               Factual Background

        Rodney Pruett, Appellant’s brother, lived with his elderly parents in their

home on Osbun Street in Fort Worth. Despite the fact that Appellant also resided

with their parents from time to time, Rodney’s living arrangements remained a

source of tension between the brothers.

        After their parents died, Appellant, Rodney, and their sister Patricia

Hollman each inherited a one-third interest in the family home. Appellant also

moved out of the house and into a mobile travel trailer, a vehicle in which he was

occasionally seen driving through the neighborhood of the home.                 In the

meantime, Rodney and Patricia were trying to sell the family home with the

intention of distributing the proceeds in equal shares to the three siblings.

        On December 19, 2012, while Rodney was having lunch at a nearby

restaurant, Adriana Castillo, his neighbor, saw Appellant1 park what she

described as a “big old van” in front of the house, exit the vehicle, walk behind

the house, return to the vehicle, and drive away.2 Seconds later, Castillo saw

smoke emanating from the back of the residence.            When she went to the

backyard to investigate, she discovered that the back side of the house was on

fire.   Castillo immediately called the fire department, and then, with the

assistance of a neighbor, she also managed to notify Rodney by phone. By the

        1
        Castillo testified that she recognized him by sight as a former neighbor.
        2
        Castillo testified that Appellant appeared to be holding something in his
hand.


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time Rodney returned to the house, two fire trucks were already at the scene

fighting the blaze.

      Fort Worth Fire Department Battalion Chief Justin Scrivner responded to

the emergency call, along with another battalion unit. Scrivner testified that the

fire appeared to have begun on the southeast corner of the house and spread to

the grass nearby. Prior to his arrival, a neighbor had succeeded in putting the

fire out in one area with a garden hose and when Scrivener arrived, the fire had

“played out” into the yard and had started burning down. By the time the fire was

finally extinguished, the house had sustained fire damage to the back exterior

and smoke damage to the interior. According to Scrivner, if the fire had not been

extinguished, it would have consumed the house.

      Fort Worth Fire Department Arson Investigator Brad Sims testified that

based upon his investigation, he believed the fire had been intentionally set. He

opined that the fire began on the back side of the house and that a flammable

liquid material was used as an ignition source.3 Sims testified that the fire is

“very dangerous” in three respects. First, the fire endangered not only the lives

of the firefighters who responded to the call but also the lives of neighbors who

could have been killed or seriously injured if it had continued to spread. Second,

the heat effects caused by fire are dangerous to humans, especially if they are



      3
        The State Fire Marshal’s Office reported that the sample it received from
the fire was negative for any ignitable liquid residue.


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trapped in a structure with it. Finally, many of the materials that are used in

residential homes give off extremely toxic poisons when burned.

                                     Discussion

       In his first point, Appellant argues that the evidence was insufficient

because of a fatal variance between the indictment, which alleged that the house

was “owned by another,” and the undisputed evidence at trial, which showed that

the house was owned by Appellant as a tenant in common with Rodney and

Patricia. Appellant contends that because the State did not prove that the house

was “owned by another” as alleged, the evidence was insufficient to sustain the

guilty verdict.

       A person commits arson if he –

              (a) . . . starts a fire, regardless of whether the fire continues
       after ignition, or causes an explosion with intent to destroy or
       damage:

                    ....

                    (2) any building, habitation, or vehicle:

                          (A) knowing that it is within the limits of an
       incorporated city or town;

                           ....

                         (D) knowing that it is located on property
       belonging to another. . . .

Tex. Penal Code Ann. § 28.02(a)(2)(A), (D) (West 2011).

       The indictment alleged that Appellant “did then and there intentionally start

a fire or cause an explosion by igniting a flammable or combustible material or


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liquid with an open flame or other ignition source, with the intent to damage or

destroy a habitation, knowing said habitation was within the limits of an

incorporated city or town, or knowing that the said habitation was located on

property belonging to another.”4 [Emphasis added.] Both the indictment and

charge in this case authorized the jury to convict on one of two theories of arson:

(1) that Appellant knew the habitation was within the limits of an incorporated city

or town or (2) that Appellant knew that the habitation was located on property

belonging to another.

      When the jury renders a general verdict in an offense that may be

committed in one of two ways and the defendant fails to challenge the sufficiency

of the evidence to support one theory, we need not consider whether the

evidence is sufficient to support the other theory. L.M.W. v. State, 891 S.W.2d

754, 758 (Tex. App.—Fort Worth 1994, pet ref’d) (citing Fuller v. State, 827

S.W.2d 919, 931 (Tex. Crim. App. 1992); Aguirre v. State, 732 S.W.2d 320, 326

(Tex. Crim. App. 1982)).     The jury in this case returned a general verdict.

Therefore, since Appellant did not challenge the sufficiency of the evidence to

support the theory that Appellant knew that the house was located within the


      4
       The jury was charged that

      A person commits the offense of arson if he starts a fire, regardless
      of whether the fire continues after ignition, or causes an explosion
      with intent to destroy or damage a habitation knowing that it is
      within the limits of an incorporated city or town or knowing that it is
      located on property belonging to another. [Emphasis added.]


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limits of an incorporated city or town, we need not reach Appellant’s issue

regarding ownership of the habitation.          See id. We overrule Appellant’s first

point.

         In his second point, Appellant challenges the sufficiency of the evidence to

support the finding of the use of a deadly weapon, in this case, fire. Penal Code

section 1.07(a)(17) defines a “deadly weapon” as:

              (A) a firearm or anything manifestly designed, made, or
         adapted for the purpose of inflicting death or serious bodily injury; or

              (B) anything that in the manner of its use or intended use is
         capable of causing death or serious bodily injury.

Tex. Penal Code Ann. § 1.07(a)(17) (West Supp. 2015).

         By statute, fire is not a deadly weapon per se, but it can be found to be one

if it otherwise meets the definition of a deadly weapon. Id. § 1.07(a)(17)(B); see

also Mims v. State, 335 S.W.3d 247, 249–50 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d) (concluding that fire can be a deadly weapon). The relevant

inquiry here is whether the fire, as it was used by Appellant, was capable of

causing death or serious bodily injury. Mims, 335 S.W.3d at 250 (citing Mixon v.

State, 781 S.W.2d 345, 346–47 (Tex. App.—Houston [14th Dist.] 1989), aff’d,

804 S.W.2d 107 (Tex. Crim. App. 1991)). The court of criminal appeals has held

that in order to sustain a deadly weapon finding, the evidence must demonstrate

that (1) the object meets the definition of a deadly weapon; (2) the deadly

weapon was used or exhibited during the transaction on which the felony




                                            6
conviction was based; and (3) other people were put in actual danger. Brister v.

State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014).

      In our due process review of the sufficiency of the evidence to support this

deadly weapon finding, we must review the record to determine whether, after

viewing the evidence in the light most favorable to the finding, any rational trier of

fact could have found beyond a reasonable doubt that the fire was used or

exhibited as a deadly weapon. See id. at 493. The appellate court’s duty is not

to reweigh the evidence but to act as a due process safeguard ensuring only the

rationality of the factfinder. Id. at 493–94. The evidence is sufficient to support a

deadly weapon finding in this case if a rational jury could have concluded that

that Appellant’s use of fire posed an actual danger of death or serious bodily

injury. See id.

      According to Chief Scrivner, when the fire department arrived, a neighbor

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

“played out” into the yard and had started burning down. There is no evidence in

the record that this neighbor or Castillo, the neighbor who reported the fire, was

ever placed in danger of death or serious bodily injury.         Although the arson

investigator testified that the lives of the firefighters had been placed “in peril” by

responding to the call, he also acknowledged that this is true of any fire to which

the firefighters respond as part of their work. There was no one else in the home

at the time, and there is no evidence in this record that these firefighters were

ever in actual danger of death or serious bodily injury. See, e.g., Williams v.


                                          7
State, 946 S.W.2d 432, 435–36 (Tex. App.—Fort Worth 1997) (noting that state

trooper took precautions for his own safety, as he was trained to do, and was not

actually endangered when no other cars were present on interstate highway

while trooper arrested driver for driving while intoxicated), aff’d in part, rev’d in

part on other grounds, 970 S.W.2d 566 (Tex. Crim. App. 1998).

      As this court has previously explained,

      The threshold question is whether, upon the evidence in the record,
      [the object] should be classified as a deadly weapon because of the
      manner in which he used or actively employed it while committing
      the felony. An affirmative answer to that question requires proof that
      in the manner of its use or intended use . . . [the object] was capable
      of causing death or serious bodily injury.

             To determine whether in the manner of its use or intended use
      [the object] was “capable” of causing death or serious bodily injury,
      that “capability” must be evaluated in light of the facts that actually
      existed while the felony . . . was committed. In other words, the
      “capability” must be evaluated in light of what did happen rather than
      the conjecture about what might have happened if the facts had
      been different than they were.

Id. at 435; see also Brister, 449 S.W.3d at 494; Sierra v. State, 280 S.W.3d 250,

254, 256–57 (Tex. Crim. App. 2009) (holding that a deadly weapon finding was

justified where a rational jury could have concluded the appellant’s vehicle posed

an actual danger of death or serious bodily injury); Drichas v. State, 175 S.W.3d

795, 797–98 (Tex. Crim. App. 2005) (noting that the danger posed “must be

actual, and not simply hypothetical”).

      No doubt, everyone involved benefitted from the prompt actions of two

good neighbors who summoned the fire department and employed a garden



                                         8
hose to suppress the grass fire. Without the neighbors’ assistance, the fire could

have spread beyond the boundaries of the backyard and possibly engulfed the

entire structure. Appellant, too, received a fortuitous windfall from their laudable

acts, because the facts—viewed, as this court must, in light of what did happen,

rather than the conjecture about what might have happened—do not support the

deadly weapon finding in this case. See Brister, 449 S.W.3d at 495 (reversing

deadly weapon finding where the State “failed to show that [appellant’s] use of

his motor vehicle placed others in actual danger of death or serious bodily

injury.”); Williams, 946 S.W.2d at 435–36 (reversing deadly weapon finding

where no other cars were present on the highway when intoxicated driver was

driving 5–10 miles per hour and blocked entire lanes of traffic).

      Because the evidence is insufficient to support the deadly weapon finding,

we sustain Appellant’s second point and order the judgment modified to delete

the deadly weapon finding.

                                   Conclusion

      Having overruled Appellant’s first point but sustained his second, we affirm

the judgment as modified to delete the deadly weapon finding. See Williams v.

State, 970 S.W.2d 566, 566 (Tex. Crim. App. 1998).


                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE

PANEL: GARDNER, MEIER, and SUDDERTH, JJ.



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PUBLISH

DELIVERED: December 10, 2015




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