IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0251-16

JEFFERY LYNN PRUETT, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY

KELLER, P.J., delivered the opinion of the unanimous Court.

OPINION

Appellant was convicted of arson, and the jurymade a deadly-weapon finding. The question

before us is whether the fire started by appellant was a deadlyweapon when the fire was started with

an accelerant in a residential neighborhood, was left unattended and uncontrolled by appellant, and

was ultimately extinguished through the efforts of appellant’s neighbors and the Fort Worth Fire

Department. Because the record supports a finding that the fire was capable of causing death or

serious bodily injury, we hold that the deadly-weapon finding was proper. Consequently, we reverse

the judgment of the court of appeals. 
PRUETT - 2

I. BACKGROUND

A. The Case

Appellant owned a house as a tenant-in-common with his brother and sister on Osbun Street

in Fort Worth. Appellant inherited his interest in the house after his parents died, and the property

created tension amongst the siblings. On December 19, 2012, a neighbor saw appellant arrive at the

house, walk around to the back yard, quickly return to his vehicle carrying an unidentified object,

and speed away in his van. Seconds later, smoke started billowing from the back of the house. 

1

The State’s expert, Brad Sims, testified that the Osbun Street fire was intentionally set at the 2

back of the house and that a flammable liquid material was used to start the fire. Sims testified that 3

the fire was a deadly weapon capable of causing death or serious bodily injury because (1) 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 the fire continued to spread; (2) the heat

effects of fire can be too extreme for humans to endure; and (3) the materials used in residential

homes emit extremely toxic poisons when burned.4

When the fire department arrived on the scene, a neighbor had already put out part of the fire

 Pruett v. State, 484 S.W.3d 167, 168 (Tex. App.—Fort Worth 2015). 1

 Brad Sims was a firefighter for 20 years and at the time of trial was employed as an

2

arson investigator with the City of Fort Worth Fire Department. He had eight years of experience

as an arson investigator and had worked as the primary investigator on more than 500 fires.

 Although the investigation yielded negative results for the presence of ignitable liquid 3

residue, Sims testified that this result is common: ignitable fluid is easily burned off by the fire,

can be sprayed away by firefighters’ water hoses, or can evaporate from the material before

testing is completed. 

Id. at 169. 4
PRUETT - 3

with a garden hose and the remaining fire was apparently subsiding. Battalion Chief Justin Scrivner 5

stated that “if the fire had not been extinguished, it would have consumed the house.” Sims stated 6

that, as far as he knew, no one was inside the house when the fire occurred but that the firefighters

who came to extinguish the fire were “in peril.”7

B. The Court of Appeals’ Opinion

The court of appeals found that “[t]here 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.” The court further reasoned that, because two neighbors summoned the fire 8

department and managed to suppress the grass fire before it could spread and possibly engulf the

entire structure, a deadly-weapon finding was not proper. The court acknowledged the testimony 9

that the firefighters were placed in peril but ultimately found the evidence insufficient to support a

deadly-weapon finding because the fire did not actually seriously harm or kill anyone. This is not 10

the correct standard. 

II. ANALYSIS

We review the record to determine whether, after viewing the evidence in the light most

Id.

5

Id.

6

Id. at 170. 7

Id. at 171. 8

Id.

9

Id. (“[T]he facts—viewed, as this court must, in light of what did happen, rather than 10

the conjecture about what might have happened—do not support the deadly weapon finding in

this case.”) (emphasis in original).
PRUETT - 4

favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that the

fire was a deadly weapon. Sometimes, however, a sufficiency-of-the-evidence issue also turns on 11

the meaning of the statute under which the defendant has been prosecuted. Whether appellant’s 12

fire is a “deadly weapon” under section 1.07(a)(17)(B) involves statutory interpretation. And a

statutory interpretation question is a question of law which we review de novo.

13

We interpret a statute according to the plain meaning of its language unless the statute is

ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have

intended. A “deadly weapon” is anything that in the manner of its use or intended use is capable 14

of causing death or serious bodily injury. “Serious bodily injury” means bodily injury that creates 15

a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss

or impairment of any function of any bodily member or organ. In interpreting section 16

1.07(a)(17)(B), we have explained that something becomes a deadly weapon because it is capable

of causing death or serious bodily injury, not because it actually does so:

The statute does not say “anything that in the manner of its use or intended use causes

death or serious bodily injury.” Instead the statute provides that a deadly weapon is

“anything that in the manner of its use or intended use is capable of causing death or

serious bodily injury.” The provision’s plain language does not require that the actor

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979). 11

Liverman v. State, 470 S.W.3d 831, 836 (Tex. Crim. App. 2015). 12

Johnson v. State, 423 S.W.3d 385, 394 (Tex. Crim. App. 2014). 13

 McCain v. State, 22 S.W.3d 497, 501 (Tex. Crim. App. 2000) (citing Boykin v. State,

14

818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

TEX. PENAL CODE § 1.07(a)(17)(B).

15

 TEX. PENAL CODE § 1.07(a)(46). 16
PRUETT - 5

actually intend death or serious bodily injury; an object is a deadly weapon if the

actor intends a use of the object in which it would be capable of causing death or

serious bodily injury. The placement of the word “capable” in the provision enables

the statute to cover conduct that threatens deadly force, even if the actor has no

intention of actually using deadly force.17

In McCain, we focused on the “manner of intended use” element of Section 1.07(a)(17)(B). 

The present matter requires us to examine the “manner of . . . use” element of the statute. But in

either case, the question is whether the intended or actual use of the instrumentality in question

makes it capable of causing death or serious bodily injury. We acknowledge that appellant’s arson

did not result in the death or serious bodily injury of another person, but that is not what the statute

requires for a deadly-weapon finding. 

In finding the evidence insufficient to support a deadly-weapon finding, the court of appeals

relied primarily upon cases in which this Court remanded or vacated deadly-weapon findings related

to motor vehicles in DWI offenses. Although neither a vehicle nor fire is a deadly weapon per se, 18

the court of appeals’ reliance on the vehicle-deadly-weapon cases alone does not take into

consideration important areas of this Court’s deadly-weapon jurisprudence. In such cases, we have

discussed how “objects [e.g., cars] that are not usually considered dangerous weapons may become

McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (emphasis in original) 17

(citing Tisdale 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 definition of deadly weapon “now

includes any instrument that threatens or causes serious bodily injury, even when the instrument

is not inherently or intentionally deadly.”) (emphasis in original).

See Pruett v. State, 484 S.W.3d 167 (Tex. App.—Fort Worth 2015) (citing Brister v. 18

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 Williams v.

State, 946 S.W.2d 432 (Tex. App.—Fort Worth 1997) (pet. dism’d)).
PRUETT - 6

so, depending on the manner in which they are used during the commission of an offense.” These 19

cases involve fact-intensive inquiries into the manner in which an intoxicated driver uses a vehicle,

and the sustainability of a deadly-weapon finding often depends upon officers’ testimony about the

variabilities of traffic patterns and the impulses of drunk drivers.20

But arson cases are not entirely analogous to the vehicle-as-a-deadly-weapon cases. An

arsonist is not the same as an intoxicated driver, and the degree of danger and harm that each

offender is capable of causing is materially different. In the case at bar, the deadly nature of the fire

is not difficult to appreciate. Fire is inherently dangerous in a way that cars are not and it is capable

of inflicting serious bodily harm, especially when it is intentionally started in a residential

neighborhood. 

This fire was dangerous because it was left unattended and because appellant used an

accelerant. As a result, the fire endangered not only the lives of the firefighters who responded to

Drichas, 175 S.W.3d at 799 (citing Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. 19

App. 1991). 

See e.g., Brister, 449 S.W.3d at 494–95 (holding that the evidence was insufficient to 20

support a deadly-weapon finding because a motor vehicle is not a deadly weapon per se and there

was no testimony in the record that defendant operated his vehicle in a manner that was capable

of causing death or serious bodily injury); Sierra, 280 S.W.3d at 256 (holding that the evidence

was sufficient to make a deadly-weapon finding when the record established that defendant was

reckless for speeding and failing and maintain control of his SUV); Drichas, 175 S.W.3d 795

(reversing and remanding the court of appeals’ decision to delete a deadly weapon finding when

the record established that defendant committed several traffic violations and caused property

damage with his vehicle while leading officers on a 15-mile high-speed chase); Mann, 58 S.W.3d

132 (holding that, although defendant’s vehicle was not used with deadly effect, it was a deadly

weapon because it was capable of causing death or serious bodily injury if not for an oncoming

driver’s evasive maneuver); Williams, 946 S.W.2d at 435–36 (reversing a deadly weapon finding

when evidence established that defendant was driving 5-10 miles per hour and the officer

testified that there was no one on the highway for defendant to threaten or endanger). 
PRUETT - 7

the call but also the lives of neighbors who could have been killed or seriously injured if the fire

continued to spread. The fire also posed a danger from both the heat effects and the emissions of

toxic chemicals. In this case, the State adequately demonstrated that the fire that appellant started

was capable of causing death or serious bodily injury. 

Finally, the capability of the fire to cause death or serious bodily injury is not obviated by the

fact that neighbors decided to take a water hose to the burning house or that firefighters showed up

and did their job. In assessing the sufficiency of the evidence to establish serious bodily injury, we

analyze the degree of risk posed by the injury as it was inflicted, not after the harm is ameliorated

or exacerbated by other actions such as medical treatment. We think a similar rule applies when 21

determining whether something is a deadly weapon. The instrument in question must be analyzed

according to its inherentlydangerous capabilitywhen it is used during the crime—and without regard

to any “windfall” gratuitously delivered through the deeds of third-party Good Samaritans.22

However fortuitous and laudable the mitigating efforts of the neighbors and firefighters proved to

be, the dangerous capability of the fire remained the same.

III. CONCLUSION

When evidence at trial demonstrates that someone ignites combustible material to

intentionally burn down a house in a residential neighborhood, a deadly-weapon finding may

appropriately attach to the arson conviction when the fire is capable of causing death or serious

bodily injury. That is what happened in this case. Viewed in a light most favorable to the State, the

Blea v. State, 483 S.W.3d 29, 33–4 (Tex. Crim. App. 2016) (citing Brown v. State, 605 21

S.W.2d 572, 575 (Tex. Crim. App. 1980). 

 Pruett, 484 S.W.3d at 171. 22
PRUETT - 8

evidence in this case supports a finding that the fire that appellant started was a deadly weapon

because it was capable of causing death or serious bodily injury. We hold that the court of appeals

erred in concluding that the evidence was insufficient to support such a finding. We therefore

reverse the decision of the court of appeals and affirm the decision of the trial court.

Delivered: January 25, 2017

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