Providing Strategic, Personalized Defense in Harris County
Arson under Texas Penal Code §28.02 is among the most aggressively prosecuted property offenses in the state. Starting a fire or causing an explosion that damages or destroys property belonging to another person, or doing so recklessly with disregard for the risk, is a second-degree felony. When the property is occupied, or when a person is injured or killed as a result of the fire, the charge escalates to a first-degree felony carrying 5 to 99 years or life in prison.
What sets arson cases apart from most other property crimes is how heavily the prosecution depends on expert testimony from fire investigators. Fire cause and origin analysis is a forensic discipline with a documented history of methodological error and wrongful convictions. Conclusions about how a fire started, where it originated, and whether accelerants were used are professional opinions, not established facts. Those opinions can be wrong, and they can be successfully challenged by qualified independent experts.
The charge level in an arson case is also determined by factors beyond the fire itself. Whether the property was a habitation or a commercial building, whether it was occupied at the time, and whether anyone suffered injury all affect what the state charges and what penalty range applies. A fire in an unoccupied commercial building is treated very differently from a fire in a home, even if the underlying facts are otherwise similar.
At David Smith Law Firm, every arson case begins with an independent review of the fire investigation report, the qualifications of the investigators involved, and the methodology they used. We understand how these cases are assembled and where the scientific foundation of the state’s fire evidence is most vulnerable to challenge.
Second-degree arson covers the intentional or knowing destruction of a building or structure belonging to another person. The state must prove that the fire was deliberately set, not accidental. Fire investigators’ cause and origin conclusions are the primary evidence in these cases, and those conclusions are subject to challenge through independent expert analysis of the physical evidence.
When the property destroyed or damaged is a habitation, the charge is elevated to a first-degree felony regardless of whether anyone was present at the time. A habitation includes any structure used as a dwelling. The distinction between a habitation and a commercial building determines the available sentencing range and shapes the prosecution’s approach to the case from the beginning.
When a person suffers bodily injury or death as a result of an arson fire, the charge carries first-degree felony penalties. These cases involve overlapping forensic evidence from fire investigators and medical experts, and the state must establish both that the fire was intentionally set and that the fire caused the specific injury or death. We examine both elements independently.
Reckless burning applies when a person recklessly starts a fire or causes an explosion that damages or destroys property. The mental state required is recklessness rather than intent, which means the state must prove the defendant consciously disregarded a substantial and unjustifiable risk. This is a genuine legal standard that requires careful examination of the specific facts and circumstances.
The most effective arson defenses often begin not with the defendant’s conduct but with the quality of the state’s fire investigation. The methodology used to determine cause and origin, the qualifications of the investigator, and whether the physical evidence was properly documented and preserved are all subject to scrutiny that many defense attorneys never apply.
Our firm works with qualified independent fire investigation experts to review the state’s findings and identify where the methodology does not meet professional standards, where the physical evidence is open to alternative interpretation, and where the conclusions drawn go beyond what the science actually supports. In arson cases, the difference between a conviction and an acquittal frequently comes down to the quality of the scientific challenge mounted against the state’s expert testimony.
