ACCEPTED
03-15-00209-CR
6143519
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/20/2015 4:25:06 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00209-CR
_________________________________ FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE 7/20/2015 4:25:06 PM
COURT OF APPEALS FOR THE JEFFREY D. KYLE
THIRD JUDICIAL DISTRICT OF TEXAS Clerk
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
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
i
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
ii
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
iii
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
iv
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
v
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
vi
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.
1
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).
2
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).
3
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).
4
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).
5
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).
6
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
7
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).
8
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
9
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.merriam-
webster.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.merriam-
webster.com/dictionary/accelerant. “Fire” is defined as “the phenomenon of
combustion manifested in light, flame, and heat.” www.merriam-
webster.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.
10
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,
11
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.
12
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).
13
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
14
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
15
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
16
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
17
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).
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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.
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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.
20
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.
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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
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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 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
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