NO. 03-15-00209-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 77002

(713) 951-9555

(713) 951-9854 (facsimile)

noguilt@swbell.net

Attorney 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

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/31/2015 12:01:31 PM JEFFREY D. KYLE Clerk
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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. 

ISSUE 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................................................................ 8
ii

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, No. 02-14-00222-CR (Tex. App.—Fort Worth, December 10, 

2015) .............................................................................................. 2

Williams v. State, 946 S.W.2d 432 (Tex. App.—Fort. Worth 1997) pet. ref’d,

970 S.W.2d 566 (1998) ............................................................ 2
1

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 evidence 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 bodily injury. 

The State criticizes appellant for relying on a dictionary definition instead of 

the penal code definition of “weapon.” State’s Brief at 27. The penal code defines 

“deadly weapon” but not “weapon.” Appellant cited the dictionary to illustrate 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” under 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 Brief at 27. 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 a 
2

lighter. However, the Second Court of Appeals retreated from this position in 

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 serious bodily 

injury. Pruett was convicted of arson. The court entered an affirmative finding in 

the judgment that the fire was a deadly weapon. The court of appeals held that the 

evidence was legally insufficient to sustain the deadly weapon finding, focusing on 

what happened rather than on what could have happened. If fire is not a deadly 

weapon where no one was placed in actual danger of death or serious bodily injury, 

then unignited gasoline is not a deadly weapon. The unignited gasoline was not a 

deadly weapon in applicant’s case based on what happened rather than on what 

could have happened.1 

The State also asserts 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 Brief 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 Williams 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 490, 495 (Tex. Crim. App. 2014). If a motor vehicle is not a deadly 

weapon in all circumstances, even though it is capable of causing death or serious bodily injury 

(especially to the driver if he is intoxicated), then unignited gasoline is not a deadly weapon in all 

circumstances. 
3

appellant poured gasoline on Higgins in an attempt to get her to help him contact 

his former girlfriend, Rosalie Miller. He had ample opportunity to set a fire during 

the 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 asserts 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 guilty only of 

assault. State’s Brief at 28-29. The State takes counsel’s statement out of context. 

The charge conference commenced with counsel requesting jury instructions 

on terroristic threats, deadly conduct, assault, and criminal mischief (7 R.R. 245). 

The court asked him to explain what evidence demonstrated that appellant was 

guilty of each offense. Counsel responded that appellant committed an assault by 

pushing the complainant on the bed. The court responded that there was no 
4

evidence to indicate that, “if guilty, he is only guilty of that offense,” without 

specifying the offense. 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—or 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 frightening Jillian Higgins and 

attempting to control her in order to obtain some way of 

getting back in touch with his former girlfriend. 

The court 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 rather than aggravated assault. Thus, the 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 frighten 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 set 
5

fire to Higgins or the house, he had ample opportunity 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 instruct the jury on a lesser included offense where 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 asserts that appellant 

must “positively and affirmatively present evidence upon which a rational jury 

could find that gasoline was not a deadly weapon.” State’s Brief at 33. The State 

ignores that the jury could have concluded from the 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. If 

the jury believed that appellant threatened Higgins but 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. Thus, the evidence raised the lesser included 

offense of assault, and the trial court erred in refusing the instruction. 
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 did 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 271 (Tex. Crim. App., 1980). An officer observed Cody pour gasoline on

the floor of a balcony at a school. Cody confessed that he intended to set the 

school on fire because he was mad. Evidence that he poured gasoline on the 

balcony with the intent to set 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 intended to do so. Higgins testified that she was 

not sure whether he poured gasoline on a tapestry that he removed from the wall

but that he did not attempt to ignite it (7 R.R. 27, 63-64). The arson investigator 

testified that appellant intended to set fire to Higgins rather than to the tapestry or 

the house (7 R.R. 179). Thus, the evidence is legally insufficient to sustain his 
7

conviction for attempted arson of a habitation because he did not have the specific 

intent to set fire to the house. 

CONCLUSION

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 conviction and enter a judgment of acquittal. 

 Respectfully submitted,

 /s/ Randy Schaffer

 Randy Schaffer

 State Bar No. 17724500

 1021 Main, Suite 1440

 Houston, Texas 77002

 (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, assistant district attorney

for Travis County, P.O. Box 1748, Austin, Texas, 78767, by e-filing and by United 

States mail, postage prepaid, on December 31, 2015. 

 /s/ Randy Schaffer

 Randy Schaffer
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CERTIFICATE OF COMPLIANCE

The word count of the countable portions of this computer-generated 

document specified by Rule of Appellate Procedure 9.4(i), as shown by the 

representation provided by the word-processing program that was used to create 

the document, is 1,589 words. This document complies with the typeface 

requirements of Rule 9.4(e), as it is printed in a conventional 14-point typeface 

with footnotes in 12-point typeface. 

/s/ Randy Schaffer

Randy Schaffer