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 

_________________________________ 

BRIEF FOR APPELLANT 

_________________________________ 

Randy Schaffer 

State Bar No. 17724500 

 1301 McKinney, Suite 3100 

Houston, Texas 77010 

(713) 951-9555 

(713)951-9854 (facsimile) 

noguilt@swbell.net 

Attorney for Appellant 

ORAL ARGUMENT REQUESTED DEANDRE DWIGHT JOSEPH 

 

ACCEPTED

03-15-00209-CR

6143519

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/20/2015 4:25:06 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/20/2015 4:25:06 PM JEFFREY D. KYLE Clerk
i

IDENTITY OF PARTIES

Appellant: DeAndre Dwight Joseph

Inmate No. 1989213

Byrd Unit

21 FM 247

Huntsville, Texas 77320

Trial Counsel: Raymond Espersen

404 W. 13th Street

Austin, Texas 78701

Appellate Counsel: Randy Schaffer

1301 McKinney, Suite 3100

Houston, Texas 77010

Trial Prosecutors: Maria DeFord

Joe Frederick

509 W. 11th Street., Suite 200

Austin, Texas 78701

Appellate Prosecutor: Rosemary Lehmberg

509 W. 11th Street

Austin, Texas 78701

Trial Judge: Brenda Kennedy

403rd District Court

509 W. 11th Street

Austin, Texas 78701
ii

SUBJECT INDEX

Page

STATEMENT OF THE CASE......................................................................... 1

STATEMENT REGARDING ORAL ARGUMENT ...................................... 1

ISSUES PRESENTED...................................................................................... 2

STATEMENT OF FACTS ............................................................................... 2

SUMMARY OF THE ARGUMENT ............................................................... 7

ISSUE ONE ...................................................................................................... 8

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.

STATEMENT OF FACTS..................................................................... 8

ARGUMENT AND AUTHORITIES .................................................... 9

A. The Standard Of Review .................................................................. 9

B. Gasoline Is Not A “Weapon” ........................................................... 9

C. Even If Gasoline Can Be A Deadly Weapon, Appellant Did 

Not Use Or Exhibit It As A Deadly Weapon................................... 11

ISSUE TWO ..................................................................................................... 13

THE TRIAL COURT REVERSIBLY ERRED IN REFUSING 

TO INSTRUCT THE JURY ON THE LESSER INCLUDED 

OFFENSE OF ASSAULT. 

STATEMENT OF FACTS..................................................................... 13
iii

Page

ARGUMENT AND AUTHORITIES .................................................... 13

ISSUE THREE.................................................................................................. 17

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. 

STATEMENT OF FACTS..................................................................... 17

ARGUMENT AND AUTHORITIES .................................................... 18

ISSUE FOUR.................................................................................................... 19

THE EVIDENCE IS LEGALLY INSUFFICIENT TO 

SUSTAIN APPELLANT’S CONVICTION FOR 

ATTEMPTED ARSON OF A HABITATION BECAUSE 

THERE IS A MATERIAL VARIANCE BETWEEN THE 

INDICTMENT ALLEGATION THAT HE WETTED THE 

COMPLAINANT WITH GASOLINE AND CONTACTED 

HER CLOTHING WITH A LIT CIGARETTE AND THE 

TESTIMONY THAT HE ATTEMPTED TO CONTACT 

HER WITH A LIT CIGARETTE. 

STATEMENT OF FACTS..................................................................... 20

ARGUMENT AND AUTHORITIES .................................................... 20

CONCLUSION................................................................................................. 21

CERTIFICATE OF SERVICE ......................................................................... 22

CERTIFICATE OF COMPLIANCE................................................................ 22
iv

INDEX OF AUTHORITIES

Cases Page

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)................................ 16

Arline v. State, 721 S.W.2d 348 (Tex. Crim. App. 1986)..................................... 16

Blanson v. State, 107 S.W.3d 103 (Tex. App.—Texarkana 2003, no pet.).......... 16

Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012) ................................... 12

Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011)....................................... 9

Cates v. State, 102 S.W.3d 735 (Tex. Crim. App. 2003)...................................... 11-12

Chavez v. State, 740 S.W.2d 21 (Tex. App.—El Paso 1987, no pet.).................. 14, 15

Doty v. State, 585 S.W.2d 726 (Tex. Crim. App. 1979)....................................... 20-21

Eldred v. State, 578 S.W.2d 721 (Tex. Crim. App. 1979).................................... 14

Ellis v. State, 2004 WL 177851 (Tex. App.—Fort Worth 2004, pet. ref’d) ........ 11

Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) ................................... 20

Hernandez v. State, 903 S.W.2d 109 (Tex. App.—Fort Worth 1995, pet. ref’d) . 21

Jackson v. Virginia, 443 U.S. 307 (1979) ............................................................. 9

Johnston v. State, 115 S.W.3d 761 (Tex. App.—Austin 2003), aff’d on 

other grounds, 145 S.W.3d 215 (Tex. Crim. App. 

2004)........................................................................................ 11

Kingsbury v. State, 14 S.W.3d 405 (Tex. App.—Waco 2000, no pet.) ............... 11

Louis v. State, 393 S.W.3d 246 (Tex. Crim. App. 2012)...................................... 18

Magee v. State, 994 S.W.2d 878 (Tex. App.—Waco 1999, pet. dism’d)............ 11
v

Page

Nash v. State, 115 S.W.3d 136 (Tex. App.—Texarkana 2013, no pet.)............... 15, 16

Rice v. State, 771 S.W.2d 599 (Tex. App.—Houston [1st Dist.] 1989, no pet.).. 11

Rogers v. State, 908 S.W.2d 239 (Tex. App.—El Paso 1995, no pet.)................ 11

Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011)...................................... 13, 14

Williams v. State, 314 S.W.3d 45 (Tex. App.—Tyler 2010, pet. ref’d)............... 16

Windham v. State, 638 S.W.2d 486 (Tex. Crim. App. 1982)............................... 21

Statutory Provisions

TEX. CODE CRIM. PROC. art. 36.19 (West 2014) ................................................... 15

TEX. CODE CRIM. PROC. art. 37.09(1) (West 2014)............................................... 13

TEX. GOV’T CODE §508.145(d)(1) (Vernon 2012)................................................ 17

TEX. PENAL CODE §1.07(a)(17)(B) (West 2014)................................................... 9

TEX. PENAL CODE §12.23 (West 2014) ................................................................. 16

TEX. PENAL CODE §15.01(a) (West 2014)............................................................. 18

TEX. PENAL CODE §22.01(a)(2) (West 2014)....................................................9, 12, 14

TEX. PENAL CODE §22.01(c) (West 2014)............................................................. 12,14

TEX. PENAL CODE §22.02(a)(2) (West 2014)........................................................ 9, 14

TEX. PENAL CODE §28.02(a)(2) (West 2014)........................................................ 18
vi

Miscellaneous Page

www.merriam-webster.com/dictionary/accelerant ............................................... 10

www.merriam-webster.com/dictionary/fire .......................................................... 10

www.merriam-webster.com/dictionary/gasoline .................................................. 10

www.merriam-webster.com/dictionary/weapon................................................... 10
1

STATEMENT OF THE CASE

Appellant pled not guilty to aggravated assault and attempted arson of a 

habitation (habitual offender) in the 403rd District Court of Travis County before 

the Honorable Brenda Kennedy. The jury convicted him on both counts and, after 

he pled true to the enhancement paragraphs, assessed his punishment at 54 years in 

prison and a $10,000 fine for aggravated assault and 25 years in prison for 

attempted arson of a habitation. The trial court entered an affirmative finding of a 

deadly weapon in the aggravated assault judgment. Ray Espersen of Austin 

represented him. 

STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument because the issues are important and his 

predicament is serious. The State offered to dismiss the aggravated assault if he 

would plead guilty and accept non-aggravated sentences of eight years for 

attempted arson of a habitation and six months for unauthorized use of a motor 

vehicle (2 R.R. 5-6). Had he done so, he would have become eligible for parole 

after serving about one year. He rejected the plea bargain (2 R.R. 6). He was

convicted; sentenced to 54 years for aggravated assault; and, as a result of the 

deadly weapon finding, must serve 27 years before he becomes eligible for parole. 

He did not commit the offenses charged and requests the opportunity to present 

argument to convince this court. 
2

ISSUES PRESENTED

1. Whether 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. 

2. Whether the trial court reversibly erred in refusing to 

instruct the jury on the lesser included offense of 

assault. 

3. Whether 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. 

4. Whether the evidence is legally insufficient to sustain 

appellant’s conviction for attempted arson of a 

habitation because there is a material variance 

between the indictment allegation that he wetted the 

complainant with gasoline and contacted her clothing 

with a lit cigarette and the testimony that he attempted 

to contact her with a lit cigarette. 

STATEMENT OF FACTS

A. The Indictment

Count one alleged that, on or about July 26, 2014, appellant did 

“intentionally or knowingly threaten Jillian Higgins, with imminent bodily injury 

by brandishing a bottle containing gasoline at Jillian Higgins and by wetting the 

clothing and person of Jillian Higgins with gasoline and . . . did then and there use 

or exhibit a deadly weapon, to-wit: gasoline, during the commission of said 

offense” (C.R. 27). 
3

Count two alleged that appellant, “with specific intent to commit the offense 

of Arson of a Habitation, do an act, to-wit: wetting the clothing and person of 

Jillian Higgins with gasoline and contacting the clothing of Jillian Higgins with a 

lit cigarette while the said Jillian Higgins was inside a habitation, which amounted 

to more than mere preparation that tended but failed to effect to [sic] commission 

of the offense intended” (C.R. 28). 

B. The State’s Case

Appellant lived in a homeless shelter in Austin where Rosalie Miller worked

(7 R.R. 111). They began to date during the Christmas holidays in 2013, and he 

moved into her room at a house that she shared with four roommates (7 R.R. 22-

23, 112).1 When Miller ended the relationship in July of 2014, appellant became 

upset and called her frequently to beg her to reconsider (7 R.R. 112-13). His tone

during these telephone calls ranged from desperate to threatening (7 R.R. 113-14). 

Appellant called Miller on July 26, 2014, and said that he was “going to go 

after” her family and friends (7 R.R. 115). He sent her text messages that she was

“pissing [him] off” and was “playing dangerous games,” and that he was “going to 

play with the ones you have heart for” (7 R.R. 118, 120). 

Mike Walton, Miller’s next-door neighbor, saw appellant arrive at her

residence about 5:00 p.m. on July 26 (7 R.R. 102-103). Appellant, who was 

 

1 Miller acknowledged that residents of homeless shelters often have emotional and 

psychological problems and that she violated the rules of the shelter by dating appellant (7 R.R. 

122). 
4

agitated and talking fast, said that he was looking for Miller, had “never loved like 

that before,” and there would be “bloodshed tonight” (7 R.R. 104-06, 108). 

Appellant helped Jillian Higgins, another roommate, dig a hole in the yard to 

bury her pet rat (7 R.R. 22, 24-25). He followed her into her room, shut the door, 

and stood between her and the door (7 R.R. 26). She asked him to leave. He said 

that he would not leave and wanted her to help him contact Miller. He was

smoking a cigarette and had a 32-ounce water bottle that he said was full of 

gasoline (7 R.R. 26-27, 64). They stayed in her room with the lights off for two 

hours (7 R.R. 27).2 

Rhett Radon, another roommate, entered the house, smelled the odor of 

gasoline, and noticed that someone had turned off the light in Higgins’ room (7 

R.R. 84-85). Radon knocked on her door (7 R.R. 86). Higgins opened it after a

delay and was visibly upset (7 R.R. 87). Radon asked if everything was okay

because it smelled like gasoline (7 R.R. 27). Higgins said that it was but rolled her 

eyes and “mouthed” to call the police (7 R.R. 89). Radon saw a silhouette in the 

room and assumed that appellant was there. Radon went outside, called 911, and 

said that her roommate was being held hostage (7 R.R. 90). 

Appellant asked Higgins if she had made a signal to Radon (7 R.R. 27). She 

said yes. He turned on the lights and said, “You fucked up.” He removed a

 

2 Appellant smoked continuously and put out his cigarettes in a cup, in the cat’s food 

dish, and on the floor (7 R.R. 31, 52-53). 
5

tapestry from the wall and may have poured gasoline on it but did not try to ignite 

it (7 R.R. 27, 63-64). He threw her on the bed and poured gasoline on her and her 

clothing (7 R.R. 27). He tried to touch her with a lit cigarette, but she was not sure 

that he did (7 R.R. 27, 34, 73).3 He said that he wanted to use her as a pawn to get 

to Miller (7 R.R. 30). She kicked him, ran outside, and screamed for help (7 R.R. 

27-28). He pulled her back into her room, went to the living room, and returned 

with a gas can. As he unscrewed the top, she exited through the bedroom window 

and asked a neighbor to call the police (7 R.R. 28, 33). Although she felt 

threatened and was afraid that he would hurt her, she was not injured, and he did 

not set a fire (7 R.R. 28, 42, 60, 66).4 

Austin Police Department (APD) patrolman Jared Carruth arrived and 

observed that Higgins was distraught and smelled of gasoline (7 R.R. 127-28). He 

did not smell smoke or fire, and nothing had been burned (7 R.R. 131-33). 

APD arson investigator Joseph Loughran arrived and saw a can half full of 

gasoline and a plastic water bottle containing a liquid (7 R.R. 147-49).5 Gasoline 

can be a deadly weapon when it is ignited and someone is injured or killed (7 R.R. 

 

3 Higgins testified, “He had a lit cigarette in his hand that he was trying to touch to my 

body” (7 R.R. 27). “He was kind of like jabbing at me with his lit cigarette sort of near my feet 

and legs” (7 R.R. 34). 

4 Higgins acknowledged that appellant could have used a lighter on the bedroom floor to 

set a fire had he wanted to do so (7 R.R. 59-60). 

5 A toxicologist testified that the liquid was gasoline (7 R.R. 222). 
6

164-65). However, gasoline does not ignite by itself and requires an ignition 

source (7 R.R. 177-78). It is not very likely that a cigarette butt can ignite gasoline 

(7 R.R. 165). Appellant could have set a fire in the two hours that he was in the 

house had he wanted to do so (7 R.R. 176). The scene was consistent with 

appellant intending to scare Higgins rather than set a fire (7 R.R. 189).6 

C. The Arguments

The prosecutors argued that appellant was guilty of aggravated assault 

because he threatened Higgins with imminent bodily injury by pouring gasoline on 

her and trying to touch her with a lit cigarette (8 R.R. 21-22, 35-36).7 He was 

guilty of attempted arson of a habitation because he demonstrated his intent to burn 

down the house by pouring gasoline on Higgins and the tapestry (8 R.R. 24). 

Defense counsel argued that appellant was not guilty of aggravated assault 

because unignited gasoline is not a deadly weapon (8 R.R. 26, 33). He was not 

guilty of attempted arson of a habitation because he intended to scare and 

manipulate Higgins to contact Miller rather than to set fire to the house (8 R.R. 27-

28, 30-33). 

 

6

Loughran believed that appellant intended to set fire to Higgins rather than the tapestry 

or the house (7 R.R. 179). 

7 One prosecutor initially argued that the deadly weapon was the water bottle but 

subsequently argued that it was the gasoline (8 R.R. 20, 22). 
7

SUMMARY OF THE ARGUMENT

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 

Jillian Higgins with gasoline. Gasoline is an accelerant, not a weapon. Unignited 

gasoline poured on a person is not capable of causing death or serious bodily 

injury. The trial court refused to instruct the jury on misdemeanor assault. A

properly instructed jury rationally could have convicted him of assault had it 

believed that he threatened her with imminent bodily injury but had a reasonable 

doubt that he used or exhibited gasoline as a deadly weapon. This court must 

reform the judgment to a conviction for Class C misdemeanor assault and remand 

for a new trial on punishment or, in the alternative, reverse the conviction and 

remand for a new trial at which the jury can consider the lesser included offense. 

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. He easily could have set a fire in the two hours that he was 

in the house had he wanted to do so. The evidence demonstrated that he intended

to scare Higgins rather than set a fire. Furthermore, the evidence is legally 

insufficient to sustain the conviction because there is a material variance between

the indictment allegation that he wetted Higgins with gasoline and contacted her 
8

clothing with a lit cigarette and the testimony that he attempted to contact her with 

a lit cigarette. This court must acquit him of attempted arson. 

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. 

STATEMENT OF FACTS

The aggravated assault count alleged that appellant threatened Higgins with 

imminent bodily injury by wetting her person and clothing with gasoline, a deadly 

weapon (C.R. 27). The evidence demonstrated that he poured gasoline on her and 

her clothing and tried to touch her with a lit cigarette in an effort to cause her to 

help him contact Miller (7 R.R. 26-27). She felt threatened and afraid that he 

would hurt her; but she was not injured, and he did not set a fire (7 R.R. 28, 42, 60, 

66). 

An arson investigator testified that gasoline can be a deadly weapon when it 

is ignited and someone is injured or killed (7 R.R. 164-65). However, gasoline 

does not ignite itself and requires an ignition source (7 R.R. 177-78). It is unlikely 

that a cigarette butt can ignite gasoline (7 R.R. 165). 
9

Appellant unsuccessfully moved for a directed verdict on the basis that the 

State did not prove beyond a reasonable doubt that unignited gasoline is a deadly 

weapon (7 R.R. 235-38). 

ARGUMENT AND AUTHORITIES

A. The Standard Of Review

A challenge to the legal sufficiency of the evidence requires the appellate 

court to consider the evidence in the light most favorable to the verdict to 

determine whether any rational trier of fact could have found the elements of the 

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); 

Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011). 

B. Gasoline Is Not A “Weapon.”

A person commits an assault if he intentionally or knowingly threatens 

another with imminent bodily injury. TEX. PENAL CODE §22.01(a)(2) (West 2014). 

The assault becomes aggravated if he uses or exhibits a deadly weapon. TEX.

PENAL CODE §22.02(a)(2) (West 2014). A “deadly weapon” is defined as 

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

or serious bodily injury.” TEX. PENAL CODE §1.07(a)(17)(B) (West 2014). Texas 

courts have concluded that gasoline is a deadly weapon without analyzing whether, 

in fact, it is even a weapon. 

The Penal Code does not define “weapon.” Thus, the court must consider 
10

the ordinary meaning of the word. A “weapon” is defined as “something (such as 

a gun, knife, club, or bomb) that is used for fighting or attacking someone or 

defending yourself when someone is attacking you.” www.merriamwebster.com/dictionary/weapon. “Gasoline” is defined as a “volatile flammable 

liquid hydrocarbon mixture used as a fuel especially for internal combustion 

engines and usually blended from several products of natural gas and petroleum.” 

www.merriam-webster.com/dictionary/gasoline. “Accelerant” is defined as “a 

substance used to accelerate a process (as the spreading of a fire).” www.merriamwebster.com/dictionary/accelerant. “Fire” is defined as “the phenomenon of 

combustion manifested in light, flame, and heat.” www.merriamwebster.com/dictionary/fire.

Where the actor pours gasoline on the complainant and ignites it with an 

object (lighter, match, or cigarette), the object is the weapon, the gasoline is the 

accelerant, and the fire is the product. By analogy, where the actor strikes the 

complainant with a motor vehicle, the vehicle is the weapon, not the gasoline that 

propels the vehicle. Similarly, the gun and the bow are weapons, not the bullet and 

the arrow. 

Appellant poured gasoline on Higgins. Unignited gasoline poured on a 

person is not capable of causing death or seriously bodily injury. Thus, the 

gasoline was not a “weapon” under the ordinary meaning of the word. 
11

C. Even If Gasoline Can Be A Deadly Weapon, Appellant Did Not Use Or 

Exhibit It As A Deadly Weapon.

Texas courts have held that gasoline is not a deadly weapon per se but can 

be in the manner of its use or intended use. See Rogers v. State, 908 S.W.2d 239, 

242 (Tex. App.—El Paso 1995, no pet.). It is a deadly weapon where the 

defendant used it to set the complainant on fire, resulting in death, Rice v. State, 

771 S.W.2d 599, 601 (Tex. App.—Houston [14th Dist.] 1989, no pet.); Magee v. 

State, 994 S.W.2d 878, 890 (Tex. App.—Waco 1999, pet. dism’d); sprayed it into 

the complainant’s face and tried to ignite it with a lighter, Kingsbury v. State, 14 

S.W.3d 405, 408-09 (Tex. App.—Waco 2000, no pet.); and threw it on the 

complainant and threatened to set her on fire with a lighter. Ellis v. State, 2004 

WL 177851*3 (Tex. App.—Fort Worth 2004, pet. ref’d) (not designated for 

publication). 

An object that can be a deadly weapon under some circumstances is not 

necessarily a deadly weapon under all circumstances. An object must have more 

than “a hypothetical capability of causing death or serious bodily injury,” and a

deadly weapon finding must be supported by “evidence relating directly to the 

circumstances of the criminal episode.” Johnston v. State, 115 S.W.3d 761, 764 

(Tex. App.—Austin 2003), aff’d on other grounds, 145 S.W.3d 215 (Tex. Crim. 

App. 2004) (lit cigarette not deadly weapon in manner of its use or intended use 

where defendant burned child on palm of hand); Cates v. State, 102 S.W.3d 735, 
12

738-39 (Tex. Crim. App. 2003) (truck that struck and killed person not used or 

exhibited as deadly weapon during subsequent offense of failure to stop and render 

aid absent evidence that defendant drove it in deadly manner in flight from scene). 

Assuming arguendo that gasoline can be a deadly weapon in some 

circumstances, it clearly was not in this case. Appellant poured gasoline on 

Higgins in an effort to cause her to help him contact Miller. He had ample 

opportunity to set a fire during the two hours that they were in her room but did not 

do so. The gasoline was incapable of igniting itself, and it was unlikely that a 

cigarette butt could ignite it. Thus, the evidence is legally insufficient to sustain 

appellant’s conviction for aggravated assault because the gasoline was not a deadly 

weapon in the manner in which he used it. 

The evidence is legally sufficient to sustain a conviction for the lesser 

included offense of Class C misdemeanor assault, as the jury could have found that 

appellant threatened Higgins with imminent bodily injury. See TEX. PENAL CODE

§§ 22.01(a)(2) and (c) (West 2014). Where the evidence is insufficient to sustain a 

conviction for the offense charged, the appellate court may reform the judgment to 

reflect a conviction for a lesser included offense for which the evidence is legally 

sufficient. Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim. App. 2012). Thus, 

this court must reform the judgment to reflect a conviction for Class C

misdemeanor assault and remand for a new trial on punishment. 
13

ISSUE TWO

THE TRIAL COURT REVERSIBLY ERRED IN 

REFUSING TO INSTRUCT THE JURY ON THE 

LESSER INCLUDED OFFENSE OF ASSAULT. 

STATEMENT OF FACTS

The pertinent facts are found on page 8 of appellant’s brief. The trial court 

denied appellant’s request for a jury instruction on the lesser included offense of 

assault in the aggravated assault case (7 R.R. 245-47).8 

ARGUMENT AND AUTHORITIES

An offense is a lesser included offense if, inter alia, “it is established by 

proof of the same or less than all the facts required to establish commission of the 

offense charged.” TEX. CODE CRIM. PROC. art. 37.09(1) (West 2014). The 

defendant is entitled to an instruction on a lesser included offense if it is included 

within the proof necessary to establish the offense charged and there is any 

evidence from which a rational jury could acquit him of the offense charged and 

convict him of the lesser offense. Sweed v. State, 351 S.W.3d 63, 67-68 (Tex. 

Crim. App. 2011). More than a scintilla of evidence requires submission of a 

lesser included offense instruction. Id. at 68. This standard is satisfied “if some 

evidence refutes or negates other evidence establishing the greater offense or if the 

evidence presented is subject to different interpretations.” Id. Appellate courts 

 

8 Defense counsel argued unsuccessfully to the court that the jury could doubt whether 

the gasoline was a deadly weapon (7 R.R. 245-47). 
14

favor submitting lesser included offense instructions so the jury will not have the 

unpalatable option of convicting a defendant when it is not convinced that he 

committed the offense charged or acquitting him when it is convinced that he 

committed a lesser offense. See Eldred v. State, 578 S.W.2d 721, 723 (Tex. Crim. 

App. 1979).

A person commits an assault if he intentionally or knowingly threatens 

another with imminent bodily injury. TEX. PENAL CODE §22.01(a)(2) (West 2014). 

This offense usually is a Class C misdemeanor. TEX. PENAL CODE §22.02(c) (West 

2014). The assault becomes aggravated if he uses or exhibits a deadly weapon. 

TEX. PENAL CODE §22.02(a)(2) (West 2014). Thus, assault is a lesser included 

offense of aggravated assault. If there is more than a scintilla of evidence that 

would enable the jury to find that the alleged weapon was not capable of causing 

death or serious bodily injury in the manner of its use or intended use, the 

defendant is entitled to an instruction on assault. Cf. Sweed, 351 S.W.3d at 69. 

It is error to refuse to instruct the jury on a lesser included offense where 

there is a fact question as to whether the object used was a deadly weapon. In 

Chavez v. State, 740 S.W.2d 21 (Tex. App.—El Paso 1987, no pet.), the defendant 

held a knife to the complainant’s back during a robbery. Although the evidence 

was legally sufficient to establish that the knife was a deadly weapon and that he 

committed aggravated robbery, the trial court erred in refusing to submit an 
15

instruction on robbery, as the jury could have concluded that the knife was not 

used or intended to be used in a deadly manner. Id. at 23; cf. Nash v. State, 115 

S.W.3d 136, 139 (Tex. App.—Texarkana 2013, no pet.) (error to refuse instruction 

on robbery in aggravated robbery case where there was fact question as to whether 

object used was deadly weapon). 

Appellant poured gasoline on Higgins but did not set a fire, and she was not 

injured. The arson investigator testified that gasoline does not ignite itself and 

requires an ignition source. The jury was not compelled to find that the unignited 

gasoline was a deadly weapon. It rationally could have concluded that appellant 

threatened Higgins with imminent bodily injury but did not use or exhibit a deadly 

weapon. Threatening a person with imminent bodily injury without using a deadly 

weapon is a Class C misdemeanor assault. However, in the absence of an 

instruction on assault, the court’s charge gave the jury no palatable option if it were 

not convinced that the gasoline was a deadly weapon. The evidence raised the 

lesser included offense of assault, and the trial court erred in refusing the 

instruction. 

A conviction must be reversed if jury charge error “was calculated to injure 

the rights of the defendant, or it appears that he has not had a fair and impartial 

trial.” TEX. CODE CRIM. PROC. art. 36.19 (West 2014). Where jury charge error is 

preserved for appeal, a new trial is required if the defendant suffered “any actual 
16

harm, regardless of degree.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. 

App. 1984); Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). 

A finding of harm is “essentially automatic” where the omission of a lesser 

included offense instruction left the jury with the option of convicting the 

defendant of the offense charged or acquitting him although he clearly committed 

some offense. Nash, 115 S.W.3d at 139-40; Williams v. State, 314 S.W.3d 45, 53 

(Tex. App.—Tyler 2010 pet. ref’d). In Blanson v. State, 107 S.W.3d 103 (Tex. 

App.—Texarkana 2003, no pet.), the defendant approached a store employee with 

a pocketknife in his hand as he attempted to leave a room where he had been 

detained for theft. He was charged with aggravated robbery. The trial court 

instructed the jury in the charge without objection that a knife is a deadly weapon. 

This erroneous instruction caused egregious harm because there was a fact 

question as to whether the knife was a deadly weapon in the manner of its use or 

intended use. Id. at 106. If an erroneous instruction that an object is a deadly 

weapon causes egregious harm, the refusal to give the jury the option of convicting 

the defendant of a lesser included offense if it has a reasonable doubt that the 

object is a deadly weapon clearly causes some harm. 

Had the jury convicted appellant of Class C misdemeanor assault, the 

maximum sentence would have been a $500 fine. TEX. PENAL CODE §12.23 (West 

2014) one year in the county jail. He was convicted of aggravated assault with a 
17

deadly weapon, enhanced by prior felony convictions, and sentenced to 54 years in 

prison. He is not eligible for release on parole for 27 years, when his “actual 

calendar time served, without consideration of good conduct time, equals one-half 

of the sentence.” TEX. GOV’T CODE §508.145(d)(1) (Vernon 2012). The harm was

substantial. Accordingly, he is entitled to a new trial at which the jury can consider 

the lesser included offense of Class C assault. 

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. 

STATEMENT OF FACTS

The attempted arson of a habitation count alleged that appellant, with the 

specific intent to commit the offense of arson of a habitation, wetted Higgins’ 

person and clothing with gasoline and contacted her clothing with a lit cigarette 

while she was inside the habitation (C.R. 28). The evidence demonstrated that he 

removed a tapestry from the wall and may have poured gasoline on it but did not 

try to ignite it and that he poured gasoline on Higgins and her clothing and tried to 

touch her with a lit cigarette in an effort to cause her to help him contact Miller (7 

R.R. 26-27, 63-64). He did not set a fire (7 R.R. 66). 

An arson investigator testified that appellant could have set a fire in the two 
18

hours that he was in the house had he wanted to do so (7 R.R. 176). The scene was 

consistent with appellant intending to scare Higgins rather than set a fire (7 R.R. 

189).9

Appellant unsuccessfully moved for a directed verdict on the basis that the 

State did not prove beyond a reasonable doubt that he had the specific intent to 

commit the offense of arson of a habitation (7 R.R. 238-39). 

ARGUMENT AND AUTHORITIES

The issue is whether the jury “could have rationally determined beyond a 

reasonable doubt from the totality of the . . . evidence viewed in a light most 

favorable to its verdict” that appellant had the specific intent to set fire to the 

habitation. Cf. Louis v. State, 393 S.W.3d 246, 251 (Tex. Crim. App. 2012). 

There is no evidence that he had this specific intent. 

A person commits the offense of arson of a habitation if he starts a fire or 

causes an explosion with the intent to destroy or damage a habitation. TEX. PENAL 

CODE §28.02(a)(2) (West 2014). A person commits a criminal attempt if, with 

specific intent to commit an offense, he does an act amounting to more than mere 

preparation that tends but fails to effect the commission of the offense intended. 

TEX. PENAL CODE §15.01(a) (West 2014). Thus, a person commits the offense of 

attempted arson of a habitation if he attempts to start a fire with the specific intent 

 

9

The investigator believed that appellant intended to set fire to Higgins rather than the 

tapestry or the house (7 R.R. 179). 
19

to destroy or damage a habitation. 

The evidence did not establish beyond a reasonable doubt that appellant 

attempted to start a fire with the specific intent to destroy or damage the house. 

Higgins was not sure whether he poured gasoline on the tapestry but was sure that 

he did not try to ignite it although he had ample opportunity to do so. He poured 

gasoline on her, tried to touch her with a lit cigarette, and said that he wanted to 

use her as a pawn to get to Miller. The arson investigator acknowledged that his

intent was to scare Higgins rather than start a fire. 

Appellant’s conduct certainly merited punishment. However, the evidence 

did not establish beyond a reasonable doubt that he had the specific intent to set 

fire to the house. Accordingly, he is entitled to an appellate acquittal of the offense 

of attempted arson of a habitation. 

ISSUE FOUR

THE EVIDENCE IS LEGALLY INSUFFICIENT TO 

SUSTAIN APPELLANT’S CONVICTION FOR 

ATTEMPTED ARSON OF A HABITATION 

BECAUSE THERE IS A MATERIAL VARIANCE 

BETWEEN THE INDICTMENT ALLEGATION 

THAT HE WETTED THE COMPLAINANT WITH 

GASOLINE AND CONTACTED HER CLOTHING 

WITH A LIT CIGARETTE AND THE 

TESTIMONY THAT HE ATTEMPTED TO 

CONTACT HER WITH A LIT CIGARETTE. 
20

STATEMENT OF FACTS

The attempted arson of a habitation count alleged, in pertinent part, that 

appellant wetted the complainant’s clothing and person with gasoline and 

contacted her clothing with a lit cigarette while she was inside a habitation (C.R. 

28). The evidence demonstrated that he tried to touch her with a lit cigarette, but 

she was not sure that he did (7 R.R. 27, 34, 73). She testified, “He had a lit 

cigarette in his hand that he was trying to touch to my body” (7 R.R. 27). “He was 

kind of like jabbing at me with his lit cigarette sort of near my feet and legs” (7 

R.R. 34). 

ARGUMENT AND AUTHORITIES

The indictment alleged that appellant committed the offense of attempted 

arson of a habitation by wetting the complainant with gasoline and contacting her 

clothing with a lit cigarette. The evidence established that he attempted to contact 

her with a lit cigarette. The evidence is legally insufficient to sustain the 

conviction because there is a material variance between the pleading and the proof. 

A material variance between the pleading and the proof requires entry of a 

judgment of acquittal. Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 

2001). Where the indictment alleges the inchoate crime of criminal attempt, the 

evidence is legally insufficient if the State proves that the defendant committed an 

act different than the act alleged. See Doty v. State, 585 S.W.2d 726, 728 (Tex. 
21

Crim. App. 1979) (testimony that defendant did not pay hired killer insufficient to 

prove attempted capital murder indictment allegation that defendant paid him to 

commit murder); Windham v. State, 638 S.W.2d 486, 487-88 (Tex. Crim. App. 

1982) (testimony that defendant pulled trigger and gun clicked insufficient to prove 

attempted murder indictment allegation that defendant shot at complainant); 

Hernandez v. State, 903 S.W.2d 109, 115 (Tex. App.—Fort Worth 1995, pet. ref’d)

(testimony that defendant’s hand touched officer’s holster during struggle 

insufficient to prove attempt to take peace officer’s firearm indictment allegation 

that defendant attempted to remove firearm from holster). Accordingly, appellant 

is entitled to an appellate acquittal for the offense of attempted arson of a 

habitation because of the material variance between the indictment allegation and 

the testimony. 
22

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 it 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

1301 McKinney, Suite 3100

Houston, Texas 77010

(713) 951-9555

(713) 951-9854 (facsimile)

noguilt@swbell.net

Attorney for Appellant

DEANDRE DWIGHT JOSEPH

CERTIFICATE OF SERVICE

I served a copy of this document on Rosemary Lehmberg, Travis County

District Attorney, P.O. Box 1748, Austin, Texas, 78767, by e-filing and by United 

States mail, postage prepaid, on July 20, 2015.

 /s/ Randy Schaffer

 Randy Schaffer
23

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 4,860 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