                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-18-00359-CR
                                  No. 10-18-00360-CR

HARRY DONALD NICHOLSON, JR.,
                                                               Appellant
v.

THE STATE OF TEXAS,
                                                               Appellee



                           From the 13th District Court
                             Navarro County, Texas
                    Trial Court No. D37998-CR & D37996-CR


                                      OPINION


       In appellate cause numbers 10-18-00360-CR and 10-18-00359-CR, appellant, Harry

Nicholson Jr., challenges his convictions for evading arrest or detention with a vehicle

and aggravated assault on a public servant. See TEX. PENAL CODE ANN. § 22.02(a),

(b)(2)(A) (West 2019); see also id. § 38.04(a), (b)(2)(A) (West 2016). Specifically, Nicholson

contends that: (1) the evidence is legally insufficient to show that he knew his attempted

detention was lawful; (2) the evidence is legally insufficient to show that he was aware
of, but consciously disregarded, a substantial and unjustifiable risk that a police officer

would be injured; (3) he was egregiously harmed by the failure to charge the jury that it

needed to find that he knew he was being lawfully detained with respect to the evading-

arrest-or-detention-with-a-vehicle allegation; and (4) he was egregiously harmed by the

failure to charge the jury that it needed to find that he knew the officer was attempting to

arrest or detain him. Because we conclude that Nicholson was egregiously harmed by

the failure of the jury charge to instruct the jury that it needed to find that Nicholson

knew the officer was attempting to arrest or detain him, but find the evidence is sufficient

to support a conviction for evading arrest or detention with a vehicle, we reverse

Nicholson’s conviction for evading arrest or detention with a vehicle and remand for a

new trial in appellate cause number 10-18-00360-CR.1 And because we hold that the

evidence is sufficient to support Nicholson’s conviction for aggravated assault on a public

servant, we affirm Nicholson’s conviction in appellate cause number 10-18-00359-CR.

       I.      EVADING ARREST OR DETENTION WITH A VEHICLE AND THE JURY CHARGE

        In his third and fourth issues, Nicholson contends that he was egregiously harmed

by the failure to charge the jury that it needed to find that he knew he was lawfully

detained by a peace officer. The State concedes that Nicholson was egregiously harmed

by the charge, but only to the extent that the charge failed to include the element that



        1This case was orally argued, and the State has filed a post-submission brief accompanied by a
motion for leave to file the brief. We grant the State’s motion and have considered the State’s post-
submission brief.

Nicholson v. State                                                                             Page 2
Nicholson knew that the officer was attempting to arrest or detain him. We agree with

the State that Nicholson was egregiously harmed by the failure of the charge to include

the element that Nicholson knew the officer was attempting to arrest or detain him. See

TEX. PENAL CODE ANN. § 38.04(a); see also Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim.

App. 2013) (“A charge that does not set out all of the essential elements of the offense is

fundamentally defective.”); Jackson v. State, 718 S.W.2d 724, 726 (Tex. Crim. App. 1986)

(“We conclude that the defendant’s knowledge that a police officer is trying to arrest him

is an essential element of the offense of evading arrest under the statute.”). Accordingly,

we sustain Nicholson’s fourth issue. Because we sustain Nicholson’s fourth issue and

grant him the relief to which he sought, a reversal and remand of this conviction for a

new trial, we need not address Nicholson’s third issue pertaining to his knowledge of the

lawfulness of the arrest or detention. See TEX. R. APP. P. 47.1, 47.4.

     II.       SUFFICIENCY OF THE EVIDENCE SUPPORTING EVADING ARREST OR DETENTION
                                          WITH A VEHICLE

           In his first issue, Nicholson argues that his conviction for evading arrest or

detention with a vehicle is not supported by sufficient evidence because the State failed

to show that he knew that his attempted detention was lawful. Specifically, Nicholson

asserts that the evading-arrest statute requires the State to prove that a defendant knows

three things at the time he intentionally flees: (1) that the person from whom he is fleeing

is a peace officer; (2) that the peace officer was attempting to arrest or detain the

defendant; and (3) that the attempted arrest or detention was lawful.
Nicholson v. State                                                                    Page 3
A.      Standard of Review

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

            When addressing a challenge to the sufficiency of the evidence, we
            consider whether, after viewing all of the evidence in the light most
            favorable to the verdict, any rational trier of fact could have found the
            essential elements of the crime beyond a reasonable doubt. Jackson v.
            Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v.
            State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires
            the appellate court to defer “to the responsibility of the trier of fact fairly
            to resolve conflicts in the testimony, to weigh the evidence, and to draw
            reasonable inferences from basic facts to ultimate facts.” Jackson, 443
            U.S. at 319. We may not re-weigh the evidence or substitute our
            judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750
            (Tex. Crim. App. 2007). The court conducting a sufficiency review must
            not engage in a “divide and conquer” strategy but must consider the
            cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although
            juries may not speculate about the meaning of facts or evidence, juries
            are permitted to draw any reasonable inferences from the facts so long
            as each inference is supported by the evidence presented at trial. Cary
            v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443
            U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App.
            2007). We presume that the factfinder resolved any conflicting
            inferences from the evidence in favor of the verdict, and we defer to that
            resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
            This is because the jurors are the exclusive judges of the facts, the
            credibility of the witnesses, and the weight to be given to the testimony.
            Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct
            evidence and circumstantial evidence are equally probative, and
            circumstantial evidence alone may be sufficient to uphold a conviction
            so long as the cumulative force of all the incriminating circumstances is
            sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
            (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

            We measure whether the evidence presented at trial was sufficient to
            support a conviction by comparing it to “the elements of the offense as
            defined by the hypothetically correct jury charge for the case.” Malik v.
Nicholson v. State                                                                            Page 4
            State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
            correct jury charge is one that “accurately sets out the law, is authorized
            by the indictment, does not unnecessarily increase the State's burden of
            proof or unnecessarily restrict the State's theories of liability, and
            adequately describes the particular offense for which the defendant was
            tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim.
            App. 2013). The “law as authorized by the indictment” includes the
            statutory elements of the offense and those elements as modified by the
            indictment. Daugherty, 387 S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

B.      Discussion

        In this issue, Nicholson requests that we interpret section 38.04(a) of the Penal

Code in such a way that requires the State to prove that Nicholson knew that the

attempted arrest or detention was lawful.

        Statutory construction is a question of law, and we review the record de
        novo. Ramos v. State, 303 S.W.3d 302, 306 (Tex. Crim. App. 2009). In
        construing a statute, we must “seek to effectuate the ‘collective’ intent or
        purpose of the legislators who enacted the legislation.” Boykin v. State, 818
        S.W.2d 782, 785 (Tex. Crim. App. 1991). We look first to the statute’s literal
        text, and “we read words and phrases in context and construe them
        according to the rules of grammar and usage.” Lopez v. State, 253 S.W.3d
        680, 685 (Tex. Crim. App. 2008). We must “presume that every word in a
        statute has been used for a purpose and that each word, phrase, clause, and
        sentence should be given effect if reasonably possible.” State v. Hardy, 963
        S.W.2d 516, 520 (Tex. Crim. App. 1997). Only if the statutory language is
        ambiguous, or leads to absurd results that the Legislature could not have
        possibly intended, may we consult extra-textual sources. Boykin, 818
        S.W.2d at 785.

Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011).

        Section 38.04(a) provides that: “A person commits an offense if he intentionally

flees from a person he knows is a peace officer or federal special investigator attempting
Nicholson v. State                                                                        Page 5
lawfully to arrest or detain him.” See TEX. PENAL CODE ANN. § 38.04(a). Contrary to

Nicholson’s assertion, many Texas cases have come to the conclusion that it is not

necessary for the State to prove that the defendant knew that the detention was lawful.

See, e.g., Lovington v. State, No. 07-16-00109-CR, 2016 Tex. App. LEXIS 13215, at **5-6 (Tex.

App.—Amarillo Dec. 13, 2016, no pet.) (mem. op., not designated for publication)

(“Rather, the knowledge aspect of the crime relates to whether the accused knew the

person to whom he refused to yield was a peace officer who was trying to detain

him. . . . It is nonsensical to suggest that an accused may avoid conviction simply because

he can unilaterally analyze the situation and conclude (irrespective of any education in

the law or 4th Amendment jurisprudence) that the peace officer had no basis to detain

him. And, we opt not to construe § 38.04(a) in such an absurdist way.”); Mitchell v. State,

Nos. 05-12-00876-CR, 05-12-00877-CR, & 05-12-00878-CR, 2013 Tex. App. LEXIS 9317, at

**12-13 (Tex. App.—Dallas July 26, 2013, no pet.) (not designated for publication)

(“Otherwise, courts have generally construed the inclusion of the word ‘lawfully’ in §

38.04(a) to mean that the attempted arrest or detention must be lawful—not that the

defendant must know that the attempted arrest or detention is lawful. . . . The State did

not have to prove that appellant knew the attempted arrest or detention was lawful.”);

Loewe v. State, No. 03-10-00418-CR, 2011 Tex. App. LEXIS 865, at *9 n.3 (Tex. App.—Austin

Feb. 2, 2011, pet. dism’d) (mem. op., not designated for publication) (“It was not necessary

for the State to prove that appellant knew that the detention was lawful.”); Johnson v.


Nicholson v. State                                                                     Page 6
State, No. 13-05-00648-CR, 2007 Tex. App. LEXIS 2706, at *8 (Tex. App.—Corpus Christi

Apr. 5, 2007, no pet.) (mem. op., not designated) (“It is not required that the State prove

that the defendant had knowledge of the legal basis for the attempted detention or

arrest. . . . Thus, appellant’s interpretation of section 38.04 as requiring the State to prove

that appellant was aware of the felony warrant is clearly incorrect.”); Etheridge v. State,

No. 08-12-00337-CR, 2014 Tex. App. LEXIS 10880, at *8 (Tex. App.—El Paso Oct. 1, 2014,

no pet.) (mem. op., not designated for publication) (“Section 38.04(a) requires proof that

the defendant knows the police officer is attempting to arrest or detain him, and it

requires proof that the attempted arrest or detention was lawful, but it does not require

proof that the defendant knew his arrest or detention was lawful.”).

        In support of the contention that the State need not prove that the defendant knew

his arrest or detention was lawful, each of these cases cite, either directly or indirectly,

decisions from the Court of Criminal Appeals in Hazkell v. State, 616 S.W.2d 204, 205 (Tex.

Crim. App. 1981) and Jackson v. State, 718 S.W.2d 724, 729 (Tex. Crim. App. 1986) or a

decision from the Dallas Court of Appeals in Johnson v. State, 864 S.W.2d 708, 723 (Tex.

App.—Dallas 1993), aff’d, 912 S.W.2d 227 (Tex. Crim. App. 1995). However, each of these

cases were decided prior to September 1, 1994, when the evading-arrest statute contained

an exception for unlawful arrests or detentions. See Act of June 19, 1993, 73rd Leg., R.S.,

ch. 900, § 1.01, sec. 38.04(a), 1993 Tex. Sess. Law Serv. 3586, 3667 (current version at TEX.

PENAL CODE ANN. § 38.04(a)) (adding the word “lawfully” as an element of the offense of


Nicholson v. State                                                                       Page 7
evading arrest or detention) (effective date Sept. 1, 1994); see also Hazkell, 616 S.W.2d at

205 (noting that the prior version of section 38.04 contained an exception for unlawful

arrests or detentions); Johnson, 864 S.W.2d at 722 (stating that the prior version of section

38.04 “makes it an offense to flee from an officer attempting to arrest or detain him” and

noting that whether or not an arrest or detention is lawful or unlawful is an exception).

        Furthermore, it would appear that the more-recent interpretations of section

38.04(a) ignore the Legislature’s inclusion of the word “lawfully” in the phrase describing

the peace officer or federal special investigator that the defendant must know is

attempting to arrest or detain him. See TEX. PENAL CODE ANN. § 38.04(a); TEX. GOV’T CODE

ANN. §§ 311.011(a) (“Words and phrases shall be read in context and construed according

to the rules of grammar and common usage.”), 311.021(2) (West 2013) (“In enacting a

statute, it is presumed that . . . the entire statute is intended to be effective.”); see also State

v. Webb, 12 S.W.3d 808, 811 (Tex. Crim. App. 2000) (“Under our approach to statutory

interpretation, we look to the literal text of the statute for its meaning, and we ordinarily

give effect to that plain meaning, unless application of the statute’s plain language would

lead to absurd consequences that the Legislature could not possibly have intended, or if

the plain language is ambiguous.”); Ex parte Levinson, 160 Tex. Crim. 606, 608, 274 S.W.2d

76, 78 (1955) (“It must be kept in mind, also, that in construing a statute or in seeking to

ascertain the legislative intent in enacting a statute, the courts must not enter the field of

legislation and write, rewrite, change, or add to a law.”).


Nicholson v. State                                                                           Page 8
        Nevertheless, none of this matters under the facts in this case. As noted above, we

analyze the sufficiency of the evidence under a hypothetically-correct jury charge. See

Malik, 953 S.W.2d at 240. Under either the State’s or Nicholson’s interpretation of the

hypothetically-correct jury charge, Nicholson’s conviction for evading arrest or detention

with a vehicle can be affirmed.

        Bobby Frazier testified that he is a cashier at a Shell gas station located at 1950

Martin Luther King Boulevard in Corsicana, Texas. On the evening in question, Frazier

observed Nicholson sitting in his pickup truck while parked at the gas station. Frazier

believed it to be odd that Nicholson “had been out there for quite some time and he was

throwing Kleenexes out of the driver side window. I mean a lot of Kleenexes.” Frazier

later clarified that Nicholson had been inside the parked pickup truck for “a couple of

hours.” Because of his concern for Nicholson, Frazier called the police.

        Alexander Hayes Layfield, an officer with the Corsicana Police Department, was

the first to arrive at the scene. Driving in a marked police vehicle and wearing his police

uniform, Officer Layfield made contact with Nicholson to conduct a welfare check. In his

probable cause affidavit, which was admitted into evidence and corroborated by trial

testimony, Officer Layfield noted the following:

        I went to the driver’s side of the truck and knocked on the driver’s side
        window to get the subject’s attention, and the subject rolled the window
        down to speak to me. At this point, I asked the subject if he was alright,
        and he advised that he was. All I knew about the subject at this point was
        that he was an older white male. I then asked the subject to step out of the
        truck to speak with me, but he did not want to exit the vehicle. I was finally
Nicholson v. State                                                                       Page 9
        able to get the subject to open his door to speak with me, but he would still
        not exit the vehicle. Due to the call type, I did not forcibly remove the
        subject from the vehicle at this time, but I did obtain his information. The
        subject identified himself as Don Nicholson . . . and he stated that his Texas
        driver’s license number was . . . . Before notifying me of the return for
        Nicholson’s TXDL, dispatch began to have backup units enroute to my
        location which I assumed was due to Nicholson having active warrants.
        While this was going on, Nicholson was actively trying to shut the door of
        his vehicle, but I was standing in the driver’s side doorway to prevent
        that. . . . I was notified by dispatch that Nicholson had active felony
        warrants which included resisting officers and evading in a vehicle out of
        Van Zandt County. Nicholson was also said to be considered dangerous.

                At this point, I knew that I needed to get Nicholson out of the vehicle
        due to the active warrants for his arrest. Nicholson had a lot of tissues on
        the ground next to his driver’s side door, which he told me he was going to
        pick up. I asked him if he would get out and pick the tissues up so that I
        could witness him doing so. Nicholson agreed to pick up the tissue, and he
        turned his truck off and exited. I allowed Nicholson to pick the tissue up
        off of the ground and throw the tissue away in a trash can in front of the
        gas station. Nicholson began to walk hastily back to his truck, and I asked
        him to talk with me for a minute, but he did not seem to want to talk.
        Nicholson then took his key out of his pocket and was holding it in his right
        hand in a manner to cause me to feel alarmed of his intent. I asked
        Nicholson to put his key away so that he was not holding it towards me,
        and he did. I made the decision to try to handcuff Nicholson before backup
        units arrived due to my belief that he was going to either fight me or flee
        the scene in his vehicle.

               As I pulled my handcuffs out and told Nicholson to place his hands
        behind his back, he began to pull away from me. I had my handcuffs in my
        right hand and my left hand was holding Nicholson’s left wrist. I began
        giving Nicholson verbal commands to place his hands behind his back, but
        he pulled his left arm in close to his body to prevent me from handcuffing
        him. I tried to talk Nicholson down from resisting so that I could handcuff
        him by advising him that he was being detained and trying to assure him
        that everything was going to work out. Nicholson was resisting me hard at
        this point with his left arm to the point where I was not able to get his arm
        behind his back. I was attempting to stall until backup arrived at this point
        because while I was holding his left wrist, I did not notice that he had gotten
Nicholson v. State                                                                        Page 10
        his truck key back out into his right hand. Nicholson opened the door to
        his truck and began to try to get into his truck. Due to the threat of the key
        in Nicholson’s right hand and me having hold of his left arm, I could not
        safely use physical force to pull Nicholson away from the truck without a
        backup unit on scene. I still had a hold of Nicholson’s left arm, but he
        pulled away just enough to get into the truck. I began to forcefully pull
        Nicholson’s arm because Nicholson got the key into the ignition of the truck
        right when he jumped in. Nicholson got the truck started and I was in
        between holding on and letting go due to the fear of being ran over by
        Nicholson. Nicholson got the truck in reverse and began backing up very
        fast with me still in the doorway of the truck. I managed to get out of the
        way, but Nicholson was not going to stop if I did not.

        On cross-examination, Officer Layfield acknowledged that, when he first

attempted to handcuff Nicholson, he did not tell Nicholson that he was under arrest,

though he noted in his testimony that littering is a criminal offense; that Nicholson had

outstanding felony warrants; and that Nicholson also failed to present a valid Texas

driver’s license upon request, which is also a criminal offense. Further, all of these

criminal offenses subjected Nicholson to a lawful arrest. On re-direct examination,

Officer Layfield testified that he did not have to inform Nicholson of the articulable basis

for the detainment, because the disclosure of this information increases the likelihood of

the subject escalating the situation and causing harm to the officer, the public, or himself.

        In addition to the foregoing, Officer Michael Brooks of the Corsicana Police

Department noted that he inventoried Nicholson’s truck and found contraband in the

form of various glass pipes inside the center console of the vehicle. These types of glass

pipes are usually used in the consumption of drugs.



Nicholson v. State                                                                       Page 11
         As stated above, Nicholson challenges the culpable-mental-state element of the

evading-arrest offense. Mental culpability is of such a nature that it generally must be

inferred from the circumstances under which a prohibited act or omission occurs.

Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991), overruled on other grounds

by Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992); see Owens v. State, 549 S.W.3d

735, 741 (Tex. App.—Austin 2017, pet. ref’d). A jury may infer that a defendant intends

the natural consequences of his acts. Herrera v. State, 526 S.W.3d 800, 810 (Tex. App.—

Houston [1st Dist.] 2017, pet. ref’d) (citing Ruffin v. State, 270 S.W.3d 586, 591-92 (Tex.

Crim. App. 2008)). A jury may also infer a defendant’s knowledge or intent from any

facts tending to prove its existence, including the method of committing the crime and

the accused’s acts, words, and conduct. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App.

2002).

         In the instant case, Officer Layfield testified that Nicholson committed numerous

criminal offenses, including littering, failure to present a valid Texas driver’s license, and

outstanding warrants. Additionally, Officer Brooks recounted that Nicholson committed

another criminal offense by being in possession of contraband in the form of glass pipes

that are usually used in the consumption of drugs. All of these criminal offenses could

have resulted in Nicholson being lawfully arrested.

         “[P]ersons are presumed to know the law and ignorance of the law excuses no

man.” Hayes v. State, 672 S.W.2d 246, 248 (Tex. App.—Beaumont 1984, no pet.) (citing


Nicholson v. State                                                                     Page 12
Crain v. State, 69 Tex. Crim. 55, 153 S.W. 155 (1913)); see, e.g., Burns v. State, No. 07-15-

00229-CR, 2016 Tex. App. LEXIS 3405, at **9-10 (Tex. App.—Amarillo Apr. 1, 2016, pet.

ref’d) (mem. op., not designated for publication) (“Indeed, those within the State are

charged with constructive knowledge of the criminal law.”). Therefore, even under

Nicholson’s hypothetically-correct jury charge, which would require the State to prove

that Nicholson knew he was being lawfully arrested, the jury could rationally infer from

the evidence that Nicholson committed the aforementioned offenses and knew or should

have known that he was subject to a lawful arrest. See Hayes, 672 S.W.2d at 248; see also

Burns, 2016 Tex. App. LEXIS 3405, at **9-10; Fassauer v. State, No. 07-08-00319-CR, 2010

Tex. App. LEXIS 4277, at *2 (Tex. App.—Amarillo June 7, 2010, no pet.) (mem. op., not

designated for publication) (“In general, absent extraordinary circumstances[,] an arrest

supported by probable cause or a warrant is lawful.” (citing Haight v. State, 103 S.W.3d

498, 507 (Tex. App.—San Antonio 2003), rev’d on other grounds, 137 S.W.3d 48 (Tex. Crim.

App. 2004))).

        Accordingly, viewing the evidence in the light most favorable to the verdict, we

hold that the jury, as the trier of fact, rationally could have inferred that Nicholson knew

that Officer Layfield was attempting lawfully to arrest or detain him and that Nicholson

used a vehicle while in flight. See Ruffin, 270 S.W.3d at 591-92; Hart, 89 S.W.3d at 64;

Hernandez, 819 S.W.2d at 810; Owens, 549 S.W.3d at 741; see also Jackson, 443 U.S. at 319,

99. S. Ct. at 2789; Zuniga, 551 S.W.3d at 732-33. We therefore conclude that the evidence


Nicholson v. State                                                                    Page 13
is sufficient to support Nicholson’s conviction for evading arrest or detention with a

vehicle. See TEX. PENAL CODE ANN. § 38.04; Jackson, 443 U.S. at 319, 99. S. Ct. at 2789;

Zuniga, 551 S.W.3d at 732-33.

        And to the extent that the evidence conflicts, we, once again, state that the

resolution of conflicts in the evidence is within the province of the jury, and we defer to

that resolution.     See Zuniga, 551 S.W.3d at 733 (citing Merritt, 368 S.W.3d at 525).

Accordingly, we overrule Nicholson’s first issue.

                      III.   AGGRAVATED ASSAULT ON A PUBLIC SERVANT

        In his second issue, Nicholson argues that the evidence is legally insufficient to

show that, in unsuccessfully trying to slowly squeeze by a police vehicle, he was aware

of, but consciously disregarded, a substantial and unjustifiable risk that a police officer

would be injured. We disagree.

        In appellate cause number 10-18-00359-CR, Nicholson was charged by indictment

with,

        intentionally, knowingly and recklessly caus[ing] bodily injury to Michael
        Sean Frasier [sic], hereafter styled the complainant, by striking the said Sean
        Frasier [sic] with an automobile, and the defendant did then and there use
        or exhibit a deadly weapon, to-wit: an automobile, during the commission
        of said assault, and the defendant did then and there know that the
        complainant was then and there a public servant, namely a Corsicana Texas
        police officer, and that the complainant was then and there lawfully
        discharging an official duty, namely responding to assist another police
        officer.




Nicholson v. State                                                                        Page 14
On appeal, the parties agree that only the reckless culpable mental state is relevant in this

issue.

         Intent may be inferred from circumstantial evidence, such as the acts, words, and

conduct of the defendant. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004);

see also Hart, 89 S.W.3d at 64. “‘[A]t the heart of reckless conduct is conscious disregard

of the risk created by the actor’s conduct[.]’” Williams v. State, 235 S.W.3d 742, 752 (Tex.

Crim. App. 2007) (quoting Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975)). In

addressing the culpable mental state of recklessness under section 6.03(c) of the Penal

Code, the factfinder must examine the defendant’s conduct to determine whether:

         (1) the alleged act or omission, viewed objectively at the time of its
             commission, created a ‘substantial and unjustifiable’ risk of the type of
             harm that occurred;

         (2) that risk was of such a magnitude that disregard of it constituted a gross
             deviation from the standard of care that a reasonable person would have
             exercised in the same situation (i.e., it involved an ‘extreme degree of
             risk, considering the probability and magnitude of the potential harm to
             others’);

         (3) the defendant was consciously aware of that ‘substantial and
             unjustifiable’ risk at the time of the conduct; and

         (4) the defendant consciously disregarded that risk.

Williams, 235 S.W.3d at 755-56; see TEX. PENAL CODE ANN. § 6.03(c) (West 2011). When

determining whether an act or omission involves a substantial and unjustifiable risk, we

consider the events and circumstances from the viewpoint of the defendant at the time

the events occurred. Id. at 753. The State need not prove awareness of a specific risk to a
Nicholson v. State                                                                        Page 15
specific individual. See, e.g., Trepanier v. State, 940 S.W.2d 827, 829 (Tex. App.—Austin

1997, pet. ref’d).

        The record reflects that Nicholson was about to be arrested for an active warrant.

When Officer Layfield attempted to effectuate the arrest, Nicholson forcefully pulled

away from the officer, entered the pickup truck, and fled. Corsicana Police Officer Heath

Hayes recounted that, as he pulled into the parking lot of the gas station, he observed

Officer Layfield inside the door of Nicholson’s vehicle while Nicholson got into the

vehicle and put the vehicle in reverse. Nicholson initially drove around the back of a

business, through a drive-through lane. As Nicholson drove around to the front of the

business, another police vehicle driven by Officer Frazier entered the parking lot.

Thereafter, Nicholson drove his pickup truck into the driver-side door of Officer Frazier’s

patrol unit.

        The jury was shown a dash-camera video, which showed Nicholson’s brake lights

were off at the moment before his pickup truck collided with Officer Frazier’s patrol unit.

In other words, Nicholson had disengaged the brakes on his pickup truck immediately

before the collision. Officer Hayes stated that, after the collision, Officer Frazier’s patrol

unit continued to bounce, indicating that Nicholson was “[s]till trying to leave.” Officer

Frazier recalled that, after the collision, he could feel the door panel of his patrol unit

vibrating and he could hear Nicholson’s “engine revving up like it was still trying to go.”

As a result of the collision, Officer Frazier was injured.


Nicholson v. State                                                                     Page 16
        Viewing the evidence in the light most favorable to the jury’s verdict, we conclude

that a reasonable factfinder could infer that Nicholson’s conduct was reckless. Fleeing

from the police in a gas-station parking lot, disengaging the brakes on his pickup truck,

and purposefully revving his engine and ramming Officer Frazier’s patrol unit created a

substantial and unjustifiable risk that someone would be injured. See Sierra v. State, 280

S.W.3d 250, 256 (Tex. Crim. App. 2009) (concluding that a failure to apply brakes before

a collision is evidence of recklessness); see also Black v. State, No. 12-05-00130-CR, 2006

Tex. App. LEXIS 7581, at **9-10 (Tex. App.—Tyler Aug. 25, 2006, no pet.) (mem. op., not

designated for publication) (“But from these facts, the jury might reasonably infer

recklessness; that, because of the warrants, Appellant was so desperate to evade arrest

that, knowing the officer was dismounting behind him, he abandoned his vehicle on an

incline and in drive, consciously disregarding the substantial and unjustifiable risk of

injury to Officer Mulligan.”). The record does not support Nicholson’s contention that

he was merely “trying to slowly squeeze by.” Additionally, the record indicates that

Nicholson had been using cocaine prior to this incident, and intoxication is also a factor

that weighs in favor of a finding of recklessness. See Gill v. State, 981 S.W.2d 517, 519 (Tex.

App.—Beaumont 1998, no pet.) (“We acknowledge that speeding is not necessarily

reckless conduct. Speeding while intoxicated, however, is reckless conduct.”).

        Accordingly, a reasonable jury could determine that this substantial and

unjustifiable risk was a gross deviation from the standard of care that a reasonable person


Nicholson v. State                                                                     Page 17
would exercise in the same situation; that Nicholson was aware of that risk at the time of

his conduct; and that he consciously disregarded that risk. See Williams, 235 S.W.3d at

755-56. As such, we hold that the evidence is sufficient to support his conviction for

aggravated assault on a public servant. See TEX. PENAL CODE ANN. § 22.02(a); Jackson, 443

U.S. at 319, 99. S. Ct. at 2789; Zuniga, 551 S.W.3d at 732-33; see also Hernandez v. State, No.

07-11-0240-CR, 2013 Tex. App. LEXIS 1007, at *8 (Tex. App.—Amarillo Feb. 4, 2013, no

pet.) (mem. op., not designated for publication) (“Notwithstanding his inexperience as a

driver, he attempted to flee the scene in an SUV by driving it through a space between

Lieutenant Parker’s unit and a camper and pickup parked along a residential street which

proved to be too narrow. It is inconsequential that he did not intend to strike Lieutenant

Parker’s unit or cause him injury. His actions, at the very least, were reckless.”). We

overrule Nicholson’s second issue.

                                      IV.    CONCLUSION

        Because we determined that the charge pertaining to the conviction for evading

arrest or detention with a vehicle contained error and egregiously harmed Nicholson, but

nevertheless find the evidence sufficient to support Nicholson’s conviction for this

offense, we reverse Nicholson’s conviction in appellate cause number 10-18-00360-CR

and remand for a new trial. See Blanson v. State, 107 S.W.3d 103, 107 (Tex. App.—

Texarkana 2003, no pet.) (“If the evidence is legally insufficient to support a

conviction . . ., we must render a judgment of acquittal, and the Constitutional


Nicholson v. State                                                                      Page 18
prohibitions against double jeopardy will prohibit a retrial. If, however, we find the

evidence legally sufficient and we reverse for charge error, we may remand the case for

a new trial.” (internal citations omitted)). Furthermore, because we have concluded that

the evidence is sufficient to support Nicholson’s conviction for aggravated assault on a

public servant, we affirm the judgment of the trial court in appellate cause number 10-

18-00359-CR.




                                               JOHN E. NEILL
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
       (Chief Justice Gray dissenting with an opinion)
10-18-00359-CR: Affirmed
10-18-00360-CR: Reversed and remanded
Opinion delivered and filed September 4, 2019
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[CR25]




Nicholson v. State                                                               Page 19
