NO. 03

- 1 5

- 00209

- CR

_________________________________

IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS

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

_________________________________ REPLY BRIEF FOR APPELLANT

_________________________________

Randy Schaffer State Bar No. 17724500
1021 Main , Suite 1440 Houston, Texas 770 0 2 (713) 951

- 9555 (713) 951

- 9854 ( facsimile) noguilt@swbell.net
A ttorney for Appellant ORAL ARGUMENT REQUESTED DEANDRE DWIGHT JOSEPH ACCEPTED 03-15-00209-CR 8422572 THIRD COURT OF APPEALS

AUSTIN, TEXAS 12/31/2015 12:01:31 PM JEFFREY D. KYLE

CLERKi SUBJECT INDEX Page
ISSUE ONE

................................ ................................ ................................ ...... 1

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

. ISSUE TWO

................................ ................................ ................................ ..... 3
THE TRIAL COURT REVERSIBLY ERRED IN REFUSING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF ASSAULT

. I SSUE THREE

................................ ................................ ................................ .. 6

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

. CONCLUSION

................................ ................................ ................................ . 7
CERTIFICATE OF SERVICE

................................ ................................ ......... 7
CERTIFICATE OF COMPLIANCE

................................ ................................ 8ii INDEX OF AUTHORITIES

Cases Page
Brister v. State, 449 S.W.3d 495 (Tex. Crim. App. 2014 )

................................ .... 2 Chavez v. State, 740 S.W.2d 21 (Tex. App.

— El Paso 1987, no pet.)

.................. 5 Cody v. State, 605 S.W.2d 271 (Tex. Crim. App. 1980 )

................................ ...... 6 Ellis v. State, 2004 WL 177851 (Tex. App.

— Fort Worth 2004, pet. ref’d)

........ 1 Nash v. State, 115 S.W.3d 136 (Tex. App.

— Texarkana 2013, no pet.)

............... 5

Pruett v. State, N o. 02

- 14

- 00222

- CR (Tex. App.

— Fort Worth, December 10, 2015)

................................ ................................ .............................. 2 Williams v. State, 946 S.W.2d 432 (Tex. App.

— F ort . Worth 1997 ) pet. ref’d , 970 S.W.2d 566 (1998)

................................ ............................ 21 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. Appellant contends that the evid ence is legally insufficient to sustain his conviction for aggravated assault because he did not use or exhibit a deadly weapon by wetting Jillian Higgins with gasoline, as unignited gasoline poured on a person is not capable of causing death or serious bo dily injury.
The State criticizes app ellant for relying on a dictionary definition instead of the penal code definition of “weapon

. ” State’s B rief at 27. The penal code defines “deadly weapon” but not “weapon.” A ppellant cited the dictionary to illus trate the difference between a “weapon” and an “accelerant.” To be clear, he contends that
the unignited gasoline in this case is not a “ deadly weapon ” u nder the penal code
definition because it is not capable of causing death or serious bodily injury in the
manner of its use or intended use

. The State asserts that unignited gasoline is a deadly weapon because it can be ignited by a cigarette butt . State’s B rief at 2 7

. It relies on Ellis v. State , 2004 WL 177851 *3 (Tex. App.

— Fort Worth 2004, pet

. ref’d) (not designated for publication) , which held that unignited gasoline is a deadly weapon where the defendant threw it on the complainant and threatened to set her on fire with a2

lighter. However, the Second Court of Appe als retreated from this posi tion i n
Pruett v. State , No. 02

- 14

- 00222

- CR (Tex. App.

— Fort Worth, December 10, 2015). Pruett set fire to a house. By the time the fire department arrived, a neighbor had put out part of the fire with a garden hose, and the remaining fire had “played out ” into the yard and was “burning down.” There was no evidence that the neighbor or the firefighters were in actual danger of death or serio us bodily injury. Pruett was convicted of arson. The court entered an affirmative finding in the judgment that the f

ire was a deadly weapon. The court of a ppeals held that the
evidence was legally insufficient to sustain the deadly weapon finding, focusing on what happened rather than o n w hat could have happened. If fire i s not a deadly weapon where no one was place d in actual danger of death or serious bodily injury,
then un ignited gasoline i s not a deadly weapon. T he unign ited gasoline was not a
de adly weapon in applicant’s case based on what happened rather than on what could have happened. 1

T he State also ass erts that the evidence established that “appellant’s manner of use and intended use of the gasoline was to ignite it and cause serious bodily injury or death to Higgins, as he threatened.” State’s B rief at 28. To the contrary,

1 A motor vehicle is capable of causing death or serious bodily injury

. Some cases have held that a motor vehicle is not a deadly weapon under the particular facts

. See W illiams v. State , 946 S.W. 2d 432 , (Tex. App.

— Fort Worth 1997), pet

. ref’d , 970 S.W. 2d 566 (1998); Brister v. State , 449 S.W. 3d 49 0 , 495 (Tex. Crim. App. 2014). If a motor vehicle is not a deadly weapon in all circumst ances, even though it is capable of causing death or serious bodil y injury (especially to the driver if he is intoxicated ), then unignited gasoline is not a deadly weapon in all circumstances.3

appellant poured gasoline o n Higgins in an attempt to g e t her to help him contact his former girlfr iend, Rosalie Miller. He had ample opportunity to set a fire during

t he two hours that they were in her room but did not do so. Thus, the evidence is legally insufficient to sustain his conviction for aggravated assault because the unignited gasoline was not a deadly weapon in the manner in which he used or
intended to it.
ISSUE TWO

THE TRIAL COURT REVERSIBLY ERRED IN REFUSING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF ASSAULT Appellant contends that the trial court reversibly erred in refusing to instruct the jury on the lesser included offense of assault. The State a sserts that the issue

was not preserved for appellate review because trial counsel agreed with the

court ’s comment that the evidence did not show that appellant was gu ilty only of
assault. State’s Brief at 28

- 29. The State takes counsel’s statement out o f context

. The charge conference commenced with counsel requesting jury instructions
on terroristic threat s , deadly conduct, assault, and criminal mischief (7 R.R . 245).
The court asked him to explain what evidence demonstrate d that appellant was guilt y of each offense . Counsel responded that appellant committed an assault by push ing the complainant on the bed

. The court responded that ther e was no4

evidence to indicate that , “if guilty, he is only guilty of that of fense,” without specifying the offens e. Counsel responded as follows (7 R.R. 245

- 46):

That is correct. However, I am saying that it is possible given the evidence that the jury can find there was no intent either to light the gasoline, ignite the gasoline, in which case there wouldn’ t be

— o r they could have reasonable doubt whether or not he intended to light the gasoline and attempt an arson or whether or not he intended to use the gasoline as a deadly weapon. It’s our contention, it’s our theory of the case that what he was doing was fr ightening Jillian Higgins and attempting to control her in order to obtain some way of getting back in touch with his former girlfriend.
The c ourt ultimately denied all the requested instructions (7 R.R. 247). Thus, the
State takes out of context counsel’s statement, “That is correct,” in asserting that he agreed with the court that there was no evidence that appellant was guilty only of assault. To the contrary, counsel explained different scenarios in which appellant would be guilty of assault r ather t han aggravated assault. T hus, t he issue was preserved for appellate review.
The State also asserts that there was no evidence that appellant was guilty only of assault because “no rational jury could conclude that appellant merely

meant to frigh ten Higgins.” State’s Brief at 32. There is no factual or legal basis
for this assertion. An arson investigator testified that appellant intended to scare Higgins rather than start a fire (7 R.R. 189). Indeed, had appellant intended to set5

fire to Higg ins or the house, he had ample o pportunity to do so. That he did not suggests that his intent was to scare Higgins to reveal information about Miller.
The State does not mention the cases cited by appellant which held that it is
error to refuse to inst ruct the jury on a lesser included offense whe re there is a fact question whether the object used was a deadly weapon. See Chavez v. State , 740 S.W. 2d 21, 23 (Tex. App

— El Paso 1987, no pet.); Nash v. State , 115 S.W. 3d 136, 139 (Tex. App

— Texarkana 2013, no pet .). The State assert s that appellant must “positively and affirmatively present evidence upon which a rational jury could find that g asoline was not a deadly weapon.” State’s B rief at 33. The State
i gnores that the jury could have concluded from t he arson investigator’s testimony
or the cross
- examination of Higgins that the unignited gasoline was not capable of causing death or serious bodily injury in the manner of its use or intended use. I f the jury believed that appellant threatened Higgins bu t that unignited gasoline, in the manner of its use or intended use, was not a deadly weapon, then he would be guilty only of assault by threats. T hus, t h e evidence raised the lesser included offense of assault, and the trial court erred in refusing the i nstruction.6 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. Appellant contends that the evidence is legally insufficient to sustain his conviction for attempted arson of a habitation because he di d not have the specific
intent to set fire to the habitation.
The State asserts that the evidence was sufficient under Cody v. State , 605
S.W. 2d 2 71 (Tex. Crim. App., 1980). An office r observed Cody pour gasoline on
the floor of a bal cony at a school. Cody confess ed that he intended to set the
school on fire because he was mad . Evidence that he p our ed gasoline on the balcony with the intent to se t the school on fire was sufficient to sustain his
conviction for attempted arson. Id . at 272

- 73. Cody is clearly distinguishable from appellant’s case. Appellant did not threaten to burn down the house or make
any post

- arrest admissions that he intende d to do so. Higgins testified that she was
not sure whether he poured gasoline on a tapestry that he removed from the wall
b ut that he did not attempt t o ignite it (7 R.R. 27, 63

- 64 ). The arson investigator
testified that appellant intended to set fire t o Higgins rather than to the tapestry or the house (7 R .R. 179). Thus, the evidence i s legally insufficient to sustain his7

conviction for attempted arson of a habitation because he did not have the specific
intent to set fire to the house.
CO NCLUSION 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 must reverse the attempted arson
of a habitation co nviction and enter a judgment of acquittal. Respectfully submitted, /s/ Randy Schaffer Randy Schaffer State Bar No. 17724500
1021 M ain, Suite 1440 Houston, Texas 770 0 2 ( 713) 951

- 9555 (telephone) (713) 951

- 9854 (facsimile) noguilt@swbell.net Attorney for Appellant DEANDRE DWIGHT JOSEPH
CERTIFICATE OF SERVICE

I served a copy of this document on Lisa Stewart, assist ant district a ttorney for Travis County , P.O. Box 1748, Austin, Texas, 78767, by e

- filing and by United
States m ail, postage prepaid, on December 31 , 2015. /s/ Randy Schaffer Randy Schaffer8 CERTIFICATE OF COMPLIANCE
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with footnotes in 12

- point typeface. /s/ Randy Schaffer Randy Schaffer