Texas Stamp


PD-0251-16 06/22/2016

"Is fire a deadly weapon when Good-Samaritan neighbors and firefighters were in the "zone of danger" and had to take 'evasive action' to contain and extinguish nearby flaming vegetation and a burning house emitting 'extremely toxic' fumes?"

Pruett was convicted of arson with a deadly weapon--fire--for setting his brother's unoccupied house and nearby vegetation on fire. Neighbors had immediately spotted it, called the fire department, and used a garden hose to extinguish some of the vegetation fire and prevent it from spreading. The arson investigator testified that fire can be a deadly weapon in two ways: first, the heat effects and, second, the emission of extremely toxic poisons when a home is burned. The responding firefighters, he maintained, had been in peril.

The court of appeals found the evidence insufficient to support the deadly weapon finding. It held that the facts must be evaluated according to what did happen, rather than what could have happened. No one was home when the fire was set and there was no evidence that the neighbors were endangered or that the firefighters were in "peril."

The State contends that the court of appeals erred by discounting two significant facts: (1) the Good-Samaritan neighbors were exposed to fire and toxic fumes when they helped suppress the fire with a hose, and (2) when firefighters arrived, the vegetation fire, while contained, was not completely extinguished and the house was still actively on fire, thereby exposing firefighters to fire and toxic fumes. The State also claims that the court erred to disregard the investigator's testimony establishing the fire's "capability" of endangerment and failing to defer to the jury's factfinding.

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