## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

N O . P D
- 0 2 5 1
- 1 6

J E F F E R Y L Y N N P R U E T T , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E S E C O N D C O U R T O F A P P E A L S

T A R R A N T C O U N T Y

K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e u n a n i m o u s C o u r t . OP INION Appellant was convicted of arson, and the jury made a deadly -we apon finding

. The question befor e us is whether the fire started by appellant was a deadly wea pon when the fire was started with

an acc eler ant in a residential neig hborhood, was left unattended and uncontrolled by appellant, and

was ultimately exti ng uished throug h the eff orts of appellant’ s neig hbors and the For t Worth Fire Depa rtment. Be cause the rec ord suppo rt s a finding that the fire was capa ble of causing death or serious bodily injury , we hold that the deadly -we apon finding was proper . Consequently , we reve rse the judg ment of the c ourt of appe als.P RUETT - 2 I. BACKG ROUND
A. The Case Appellant owned a house as a tenant-in-c ommon with his brother and sister on Osbun Street in For t Worth. Appellant inherited his interest in the house afte r his pa rents died, and the proper ty

cre ated tension among st the siblings. On Dec ember 19, 2012, a neig hbor saw appellant arr ive at the house, walk around to the back y ard, quickly return to his vehicle car ry ing an uni dentifi ed object, and spee d awa

y in his van. Seconds later , smoke started billowing from the ba ck of the house. 1
The State’s expert, Br ad Sims , testified that the Osbun Street fire was intentionally set at the 2
back of the house and that a flammable liquid materia l was used to start the fire. Sims testified that 3
the fire was a deadly wea pon capa ble of causing death or serious bodily injury beca use (1) the fire endang ere d not only the lives of the firef ighte rs who respon d ed t o t h e call but also the lives of neig hbors who could have been killed or seriously injured if the fire continued to sprea d; (2) the heat eff ec t s o f fire can be too extreme for humans to endure ; and (3) the materia ls used in residential homes emit ext reme ly

tox ic poisons when burne d. 4
When the fire depar

tment arr ived on the scene , a neig hbor had alre ady put out part of the fire

Pruett v. State , 484 S.W .3d 167, 168 (Tex. App.—For t Worth 2015). 1
Br ad Sims was a fire fig hter for 20 y ear s and at the time of tr ial was e mploy ed as a n 2 arson investig ator with the City of F ort Worth Fire D epar tment. He had e ight y ear s of experienc e as an a rson investig ator a

nd had wor

ked as the primary

investiga tor on more than 500 f ires. Although the investiga tion y ielded neg ative re sults for the pre sence of ig nitable liquid 3 residue, Sims testified that this result is common: i g nitable fluid is easily burned of

f by the fire , can be spray ed aw ay

by firef ighte rs’ wa ter hoses, or

can e vapora te from the ma terial be fore testing is complete d. Id . at 169. 4P RUETT - 3

with a g arde n hose and the rema ining fire was appar ently subsiding. Ba ttalion Chief J ustin Scrivner 5
stated that “if the fire had not been exti ng uished, it would have consumed the house.” Sims stated 6 that, as far as he knew, no one was inside the house when the fire occur red but tha t the firef

ighte rs who ca me to exti ng uish the fire w ere “in per il.” 7

B. Th e Court of Ap peals’ Opin ion The c ourt of appe als found that “[t]here wa s no one else in the home at the time, a nd there
i s n o ev i d en ce in this rec ord that these firef ighte rs wer e ever in actua l dang er of death or seriou s bodily injury .” The court further rea soned that, beca use two neig hbors s u m m o n ed t he fire 8 depar tment an d m an age d to suppress the g rass fire befor e it could sprea d and possibly eng ulf the entire structure , a dea dly -we apon finding was not pr oper. The court acknow ledg ed the testimony 9
that the firef

ighte rs wer e place d in peril but ultimately found the evidenc e insufficient to suppor t a deadly -we apon finding beca use the fire did not actua lly seriously harm or kill any one. This is not 1 0
the cor rec t standard.
II. ANALYSIS
We revie w the rec ord to deter mine whether , afte r viewing the evidenc e in the light most

Id

. 5 Id

. 6 Id. at 170. 7 Id. at 171. 8 Id

. 9 Id . (“[T]he fac ts—viewed, a s this court must, in l ight of what did happen, r ather

than 1 0 the conjec ture a

bout what might have happene d—do not support the deadly wea pon finding in this case.” ) (e mphasis in origina l).P RUETT - 4

favor able to the State, any rational trier of fac t could have found bey ond a rea sonable doubt that the fire was a deadly wea

pon. Sometimes, howeve r, a sufficie ncy -of- the-e vidence issue also turns on 1 1
the m eaning of t he st atute under which the defenda nt has been prosec uted. Whether appellant’s 1 2
fire is a “dea dly wea

pon” under section 1.07(a) (17)( B) involves statutory inte rp reta tion. And a statutory interpre tation question is a question of law which w e re view de novo

. 1 3
We interpre t a statute ac co rd i n g t o the plain meaning of its lang uag e unless the statute is ambig uous or the plain meaning leads to absurd results that the L eg islature could not possibly have intended. A “dea dly wea pon” is a ny thing that in the manner of its use or intended use is capa ble 1 4
of causing death or serious bodily injury

. “Serious bodily injury ” means bodily injury that cre ates 1 5

a substantial risk of death or that cause s death, serious perma nent disfigur ement, or protrac ted loss

or impairment o f any function of any bodily member or org an. I n interpre ting section 1 6 1.07(a) (17)( B) , we ha

ve explained that something become s a dea dly wea pon beca use it is capable of ca using de ath or ser ious bodily injury , not beca

use it actua lly

does so: The statute does not say “any thing that in the manner of its use or intended use cause s death or serious bodily injury .” I nstead the statute provides that a deadly wea pon is “any thing that in the manner of its use or intended use is capable of causing death or serious bodily injury .” The provision’s plain lang uag e does not require that the actor

Jack son v. Virginia , 443 U.S. 307, 319, 99 S.C t. 2781, 61 L . Ed. 2d 560 (1979). 1 1 Liverman v. State , 470 S.W .3d 831, 836 (Tex. Crim. App. 2015). 1 2 Johnson v. State , 423 S.W .3d 385, 394 (Tex. Crim. App. 2014). 1 3 McCain v. State , 22 S.W .3d 497, 501 (Tex. Crim. App. 2000) (citing Boyk in v. State , 1 4 818 S.W .2d 782, 785 (Tex. Crim. App. 1991). T E X
. P E N A L C O D E § 1.07(a) (17)( B)

. 1 5
T E X
. P E N A L C O D E § 1.07(a) (46). 1 6P RUETT - 5

actua lly intend death or serious bodily i n j u ry ; an object is a deadly wea pon if the actor intends a u s e o f the object in which it would be capa ble of causing death or serious bodily injury

. The place ment of the word “ca pable” in the provision enable s the s t at u t e to cover conduct that threa tens deadly forc e, even if the actor has no intention of actua lly

using de adly

forc e. 1 7
I n McCain , we focuse d on the “manne r of intended use” element of Section 1.07(a) (17)( B)

. The prese nt matter require s us to examine the “mann er o f

. . . use” element of the statute. But in either case , the q uestion is whether the intended or actua l use of the instrumentality in question makes it capa

ble of causing death or serious bodily injury

. We acknow ledg e that appellant’ s arson did not result in the death or serious bodily injury of another person, but that is not what the statute require s for a

deadly -we apon finding

. I n finding the evidenc e insufficient to support a deadly -we apon finding , the court of appea ls relied primarily upon case s in which this Court rema nded or vacated deadly -we apon finding s rela ted
to motor vehicles in DWI offe nses. Although neither a vehicle nor fire is a deadly wea pon per se, 1 8

t h e court of appea ls’ relianc e on the vehicle- deadly -we apon case s alone does not take i n t o consideration important are as of this Court’s deadly -we apon jurisprudenc e. I n such case s, we have discussed how “objec ts [e.g., car s] that are not usually considere d dang erous wea pons may become

McCain v. State , 22 S.W .3d 497, 503 (Tex. Crim. App. 2000) (emphasis in orig inal) 1 7 (citing Tisdal e v. State , 686 S.W .2d 110, 114–15 (Tex. Crim. App. 1984)). See also Plummer v

. State , 410 S.W .3d 855, 858 (Tex. Crim. App. 2013) (the def inition of deadly

wea pon “now includes any instrument that threate ns or ca uses serious bodily

injury , even w hen the instrument is not inherently

or intentionally

deadly .”) ( emphasis in orig inal). See Pruett v. State , 484 S.W .3d 167 (Tex. App.—For t Worth 2015) (citing Brister v. 1 8 State , 449 S.W .3d 490 (Tex. Crim. App. 2014); Sierra v. State , 280 S.W .3d 250 (Tex. Crim. App. 2009); Drichas v. State , 175 S.W .3d 795, 799–800 (Tex. Crim. App. 2005); and W illiams v. State , 946 S.W .2d 432 (Tex. App.—For t Worth 1997) (pet. dism’d)).P RUETT - 6

so, depending on the manner in which they are used during the commission of an offe nse.” These 1 9

case s involve fac t-intensive inquiries into the manner in which an intox icated driver uses a vehicle, and the sustainability of a deadly -we apon finding often depends upon office rs’ testimony about the varia biliti es of tra ffic pa

tterns and the impulses of dr unk drivers. 2 0
But arson case s are not entirely analog ous to the vehicle- as-a -dea dly -we apon cases. An arsonist is not the same as an i n t o x icated driver, and the deg ree of dang er and harm that eac h offe nder is capa

ble of causing is materia lly differ ent. I n the case at bar, the deadly nature of the fire is not difficult to appre ciate. Fire is inhere ntly dang erous in a way that car s are not and it is capa ble of inflicting serious bodily harm, espec ially wh en it is intentionally started in a residential neig hborhood. This fire was dang erous beca use it was left unattended an d b ec au s e appellant used an

acc eler ant. As a re sult, the fire e ndang ere d not only the lives of the f

irefig hters who responde d to

Drichas , 175 S.W .3d at 799 (c iting Thomas v. State , 821 S.W .2d 616, 620 (Tex. Crim. 1 9 App. 1991). See e .g. , Brister , 449 S.W .3d at 494–95 (holding that the evidenc e wa s insufficient to 2 0 support a dea dly -we apon finding beca use a motor ve hicle is not a dea dly wea pon per se and ther e was no testimony

in the rec ord that def

endant ope rate d his vehicle in a ma nner tha t was ca

pable of ca using de ath or ser ious bodily injury); Sierra , 280 S.W .3d at 256 (holding that the evidenc e was suff icient to make a

deadly -we apon findingwhen the r ecor d established that def endant wa s rec kless for spe eding and fa iling and ma intain control of his SUV); Drichas , 175 S.W .3d 795 (re versing and re manding the cour t of appe als’ dec ision to delete a de adly wea pon finding when the re cord e stablished that defe ndant committed sever al traf fic violations and ca

used prope rty damag e with his vehicle w hile leading office rs on a 15- mile high- speed c hase) ; Mann , 58 S.W .3d 132 (holding that, althoug h defe ndant’s vehic le was not used w ith deadly eff ect, it was a

deadly wea pon beca use it was ca

pable of causing death or

serious bodily

injury if not for a

n oncoming driver’ s evasive ma

neuver ); W

illiams , 946 S.W .2d at 435–36 (re versing a dea dly wea pon finding when e vidence established that def endant wa s driving 5- 10 miles per hour a nd the offic er testified that there was no one on the hig hway for de fenda

nt to threaten or

endang er)

.P RUETT - 7

the call but also the lives of neig hbors who could have been killed or seriously i n j u re d i f the fire continued to sprea d. The fire also posed a dang er f ro m both the heat eff

ects and the emis sions of
tox ic che micals. I n this c ase, the State ade quately demonstrated tha t the fire tha t appellant starte d

was c apable of ca

using de ath or ser ious bodily injury

. Finally , the capa

bility of the fire to cause death or serious bodily injury is not obviated by the fac t that neig hbors decide d to take a water hose to the burning house or that firef ighte rs showed up and did their job. I n assessing the sufficie ncy of the evidenc e to establish serious bodily injury , we analy ze the deg ree of risk posed by the i njury as i t was inflicted, not afte r t he har m is ameliorated

or exacer bated by other a ctions such as medic al trea tment. We think a simil ar rule applies when 2 1
deter mining whether something is a deadly wea pon. The instrument in question must be analy zed

acc ording to its inhere ntly dang erous capa b il it y w h e n it is used during the crime—a nd without reg ard
to any “windfa ll” g ratuitously delivere d throug h the deeds of third-par ty Good S am ar itans. 2 2
Howeve r fortuitous and laudable t he mi tiga ting e ffor ts of the neig hbors and firefig hters proved to be, the da ng erous c apability

of the fir e re mained the sa me.

III. CONCLUSION When evidenc e at trial demonstrates that someone ignites combus tible materia l to intentionally burn down a house in a re s i d en t i al neig hborhood, a deadly -we apon finding may
appropr iately attach to the arson conviction when the fire is ca p ab l e o f ca using death or serious bodily injury

. That is what happene d in this case . Viewe d in a light most favor able to the State, the

Blea v. State , 483 S.W .3d 29, 33–4 (Tex. Crim. App. 2016) (citing Brown v. State , 605 2 1 S.W .2d 572, 575 (Tex. Crim. App. 1980).

Pruett , 484 S.W .3d at 171. 2 2P RUETT - 8

evidenc e in this case suppo rt s a finding that the fire that appellant started was a deadly wea pon beca use it was capa

ble of causing death or serious bodily injury

. We hold that the court of appea ls

err ed in concluding that the evidenc e was insufficient t o s u p p o rt such a finding

. We there fore

reve rse the de cision of the cour t of appe als and a ffirm the de cision of the trial c ourt. Deliver ed: J anuar

y 25, 2017 Publis h