ACCEPTED 03-15-00209-CR 8265438 THIRD COURT OF APPEALS AUSTIN, TEXAS SCHAFFER LAW OFFICES 12/16/2015 2:00:11 PM NOT A PARTNERSHIP JEFFREY D. KYLE CLERK 1021 MAIN, SUITE 1440 HOUSTON, TEXAS 77002 Randy Schaffer, P.C. (?13) 951-9555 [email protected] FAX: (713) 951-9854 Josh Schaffer, P.L.L.C. FILEDvvvvw.schafferfirrn.corn IN [email protected] 3rd COURT OF APPEALS Joel Hayter AUSTIN, TEXAS [email protected] 12/16/2015 2:00:11 PM JEFFREY D. KYLE December 16, 2015 Clerk Jeffrey D. Kyle Clerk, Third Court of Appeals P.O. Box 12547 Austin, Texas 78711-2547 Re: Joseph v. State No. 03-15-00209-CR Dear Mr. Kyle: Please bring to the attention of the Court the recent decision in Pruett v. State, No. 02-14-00222- CR (Tex. App-Fort Worth, December 10, 2015). The defendant set fire to a house. By the time the fire depmiment an-ived, a neighbor had put out pmi of the fire with a garden hose, and the remaining fire had "played out" into the ym·d and was "burning down." There was no evidence that the neighbor or the firefighters were in actual danger of death or serious bodily injury. The defendant was convicted of arson. The comi entered an affirmative finding in the judgment that the fire constituted a deadly weapon. The court of appeals held that the evidence was legally insufficient to support the deadly weapon finding, focusing on what happened rather than on what could have happened. Pruett is relevant to Issue One, in which appellant contends that the evidence is legally insufficient to sustain his conviction for aggravated assault because, by wetting the complainant with gasoline without starting a fire, he did not use or exhibit a deadly weapon.

I also want to address the State's failure to file a brief. I was hired on June 8, 2015. Appellant's brief was due on June 15. I requested an extension oftime until July 31. I filed a 21-page brief, raising three sufficiency of the evidence issues and a jury chm·ge issue, on July 20. The State's brief was due on August 19. It has obtained four extensions of time, and its brief is due on December 18. The Court should deny any request for an additional extension, as five months is plenty of time to respond, and appellant is incarcerated on legally insufficient evidence.

Sincerely,

Randy Schaffer RS/ro cc: Lisa Stewart