Texas law requires that criminal courts place “affirmative findings” in their judgment whenever it proven that a “deadly weapon” was knowingly used or exhibited during the commission of a felony.  Such a finding has serious consequences on a convicted individual, including limitations on availability of parole.


Deadly Weapon Defined


Texas Penal Code § 1.07(a)(17)(B) defines a deadly weapon as “a firearm or anything manifestly designed, made, or adopted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”


The Texas Court of Criminal Appeals was recently called upon to determine if fire is a “deadly weapon” within the meaning of § 1.07(a) (17) (B).


Family Feud Leads to Arson


The case involved Jeffery Lynn Pruett. According to the court’s January 25, 2017 opinion, Pruett owned a house in Fort Worth as a “tenant-in-common” with his brother and sister. The siblings inherited the house after their parents died. They were constantly feuding about the property.  Just before Christmas in 2012, Pruett decided to end the family tension by setting the house ablaze. No one was in the residence at the time.


Expert Testified “Fire” was Deadly Weapon


Pruett was indicted for arson. He was convicted by a jury that made a “deadly weapon” finding. This finding was based on expert testimony offered by the State. The fire expert testified that the fire was a deadly weapon because:


  1. The fire endangered not only the lives of the firefighters who responded to the call but also the lives of the neighbors who could have been killed or seriously injured if the fire had spread;
  2. The heat effects of fire can be too extreme for humans to endure; and
  3. Materials used in residential homes emit extremely toxic poisons when burned.


In 2015, the court of appeals in Fort Worth vacated the “deadly weapon” finding because there “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 seriously bodily injury.”


The Court of Criminal Appeals disagreed.


Fire Only Need be Capable of Causing Serious Bodily Injury


First, the court noted that a deadly weapon does not have to actually cause death or serious bodily injury but simply be capable of doing so. Second, the court pointed that fire, like a vehicle, is not per se a deadly weapon but that the manner in which they can be used during the commission of an offense make them deadly. Finally, the court distinguished an arsonist’s fire from a drunk driver’s vehicle, saying:


“ … arson cases are not entirely analogous to the vehicle-as-a-deadly-weapon case[.] 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 Not Capable of Causing Serious Bodily Injury


The court’s reasoning, we believe, is flawed. There was no one in Pruett’s house when he set it ablaze. A neighbor nearly had the fire put out with a garden hose by the time the firefighters arrived. Firefighters are trained to avoid harm minimizing the risks by fire.


Arguably, a drunk driver on puts everyone at risk, both on the highway and passersby. The innocent people do not see the harm coming. Firefighters see the risk of harm before them and are trained to stay out of its way.


The Court of Criminal Appeals said Pruett’s fire was “dangerous because it was left unattended and because [Pruett] used an accelerant.” This dual finding ignores the fact that the neighbor was able to virtually extinguish it was a garden hose before the firefighters even arrived; thus, it the fire never posed any real risk, as the Fort Worth court of appeals noted, to anything or anyone beyond the house Pruett set ablaze.


Intentional Fire in Residential Neighborhood


The court of criminal appeals issued this 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.”


We have no problem with this legal argument, surely, under the correct circumstances “fire” could be intentionally used as a deadly weapon. Our problem is that the facts surrounding the Pruett fire does not fit within this conclusion. We agree with the Fort Worth court of appeals that the evidence was insufficient to make a deadly weapon finding.