holding that a fire that was intentionally set in a residential neighborhood with an accelerant was a deadly weapon despite the fact that it was quickly extinguished, observing that "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”
How later courts described this case
- holding that a fire that was intentionally set in a residential neighborhood with an accelerant was a deadly weapon despite the fact that it was quickly extinguished, observing that "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”
- observing that deadly weapon findings related to motor vehicle in DWI offense “involve fact-intensive inquiries into the manner in which an intoxicated driver uses a vehicle”
- stating that statutory interpretation question is a question of law that is reviewed de novo
- “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.”
Written by the judges who cited it.
The opinion
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
K ELLER, P.J., delivered the opinion of the unanimous Court.
OPINION
Appellant was convicted of arson, and the jury made a deadly-weapon finding. The question
before us is whether the fire started by appellant was a deadly weapon 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,2 testified that the Osbun Street fire was intentionally set at the
back of the house and that a flammable liquid material was used to start the fire.3 Sims testified that
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
1
Pruett v. State, 484 S.W.3d 167, 168 (Tex. App.—Fort Worth 2015).
2
Brad Sims was a firefighter for 20 years and at the time of trial was employed as an
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.
3
Although the investigation yielded negative results for the presence of ignitable liquid
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.
4
Id. at 169.
PRUETT - 3
with a garden hose and the remaining fire was apparently subsiding.5 Battalion Chief Justin Scrivner
stated that “if the fire had not been extinguished, it would have consumed the house.”6 Sims stated
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.”8 The court further reasoned that, because two neighbors summoned the fire
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.9 The court acknowledged the testimony
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.10 This is not
the correct standard.
II. ANALYSIS
We review the record to determine whether, after viewing the evidence in the light most
5
Id.
6
Id.
7
Id. at 170.
8
Id. at 171.
9
Id.
10
Id. (“[T]he facts—viewed, as this court must, in light of what did happen, rather than
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.11 Sometimes, however, a sufficiency-of-the-evidence issue also turns on
the meaning of the statute under which the defendant has been prosecuted.12 Whether appellant’s
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.14 A “deadly weapon” is anything that in the manner of its use or intended use is capable
of causing death or serious bodily injury.15 “Serious bodily injury” means bodily injury that creates
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.16 In interpreting section
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
11
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979).
12
Liverman v. State, 470 S.W.3d 831, 836 (Tex. Crim. App. 2015).
13
Johnson v. State, 423 S.W.3d 385, 394 (Tex. Crim. App. 2014).
14
McCain v. State, 22 S.W.3d 497, 501 (Tex. Crim. App. 2000) (citing Boykin v. State,
818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
15
TEX . PENAL CODE § 1.07(a)(17)(B).
16
TEX . PENAL CODE § 1.07(a)(46).
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.18 Although neither a vehicle nor fire is a deadly weapon per se,
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
17
McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (emphasis in original)
(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).
18
See Pruett v. State, 484 S.W.3d 167 (Tex. App.—Fort Worth 2015) (citing Brister v.
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.”19 These
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
19
Drichas, 175 S.W.3d at 799 (citing Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim.
App. 1991).
20
See e.g., Brister, 449 S.W.3d at 494–95 (holding that the evidence was insufficient to
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.21 We think a similar rule applies when
determining whether something is a deadly weapon. The instrument in question must be analyzed
according to its inherently dangerous capability when 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
21
Blea v. State, 483 S.W.3d 29, 33–4 (Tex. Crim. App. 2016) (citing Brown v. State, 605
S.W.2d 572, 575 (Tex. Crim. App. 1980).
22
Pruett, 484 S.W.3d at 171.
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
Publish