COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00222-CR

JEFFERY LYNN PRUETT APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1310783D

----------

OPINION

----------

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. 
2

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 Appellant1park 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 

 

1Castillo testified that she recognized him by sight as a former neighbor.

2Castillo testified that Appellant appeared to be holding something in his 

hand. 
3

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. 
4

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 
5

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.]
6

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 
7

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. 
8

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 
9

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.
10

PUBLISH

DELIVERED: December 10, 2015