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Date: 02-22-2019

Case Style:

James Wayne Shifflett v. The State of Texas

Case Number: 02-18-00174-CR

Judge: Wade Birdwell

Court: Court of Appeals Second Appellate District of Texas at Fort Worth

Plaintiff's Attorney: Dee Peavy
Constance K. Hall

Defendant's Attorney: Tim B. Copeland


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One day in January 2017, Shifflett was “causing problems” at a house in
Graham, and the homeowner, who had allowed Shifflett to stay there overnight,
wanted him to leave. Sergeant Tommie Shawver and Officer Blake Davis, both
employed with the Graham Police Department, went to the house and asked Shifflett
to leave. He did.
Less than an hour later, a dispatcher received a report about a man standing in
front of another house and swinging an axe. Sergeant Shawver, Officer Davis, and
Young County Deputy Sheriff Paul Hemphill went to the house, where Shifflett’s ex
wife lived.
Officer Davis, who arrived first, commanded Shifflett to drop the axe. Shifflett
told Officer Davis that if he “came on to [the] property[,] [Officer Davis] better be
prepared to shoot.” Shifflett took a couple of steps toward Officer Davis and
slammed the axe into the ground. Officer Davis “felt extremely threatened.” He
considered shooting Shifflett but chose not to because there was some distance
between them and because he wanted “everybody to leave that scene . . . with their
lives.” He asked the other officers who were on their way to the house to step up
their pace. Shifflett claimed that he was using the axe to defend his property.
Sergeant Shawver and Deputy Hemphill arrived soon thereafter. Deputy
Hemphill saw that Officer Davis had drawn his gun, and Deputy Hemphill likewise
pulled out his gun. Because Officer Davis had drawn his weapon and was providing
cover, Sergeant Shawver did not draw his.
When Sergeant Shawver approached the house, he took the lead in
communicating with Shifflett. He asked Shifflett to drop the axe; Shifflett refused,
became agitated, and cursed at the officers. After slamming the axe into the ground,
Shifflett said to Sergeant Shawver, “Come get it. You want to fucking try? . . . You say
in God you trust? You trust me? Do you?”
After slamming the axe into the ground several more times while making
similar statements1 and while repeatedly refusing the officers’ request to drop the axe,
Shifflett swung it like a baseball bat and hit a yard ornament. Officer Davis feared that
Shifflett was going to throw the axe at him or at Deputy Hemphill. Deputy Hemphill
believed that the manner in which Shifflett was swinging the axe was “[v]ery
threatening.” Believing that Shifflett could throw the axe at any moment,2 Deputy
Hemphill took cover behind a tree. He believed that he might need to shoot Shifflett
1At one point, Shifflett appeared to refer to himself as a “goddamn warrior.”
2Deputy Hemphill testified that Shifflett was a large man and was capable of throwing the axe twenty feet or more.
because Shifflett was threatening deadly force by swinging the axe. Sergeant Shawver
likewise became concerned about the officers’ safety, and he felt that his life was
threatened. He believed that the axe was capable of causing death.
From a position where Shifflett could not see, Sergeant Shawver showed
Officer Davis his taser, indicating that he planned to use it and that he wanted the
other two officers to provide cover. Shifflett began twirling the axe, lost control of it,
and dropped it. Sergeant Shawver moved toward Shifflett, and Shifflett picked up the
axe and a rake. With Sergeant Shawver closer to the axe, Shifflett again refused to
drop it. When Shifflett saw that Sergeant Shawver had moved closer, he tauntingly
said, “Uh, uh, uh, uh.” Sergeant Shawver again told Shifflett to drop the axe. Officer
Davis believed that Shifflett could kill Sergeant Shawver.
Upon moving to within eight to ten feet of Shifflett, Sergeant Shawver
attempted to deploy the taser, but the taser did not initially fire. At that moment,
Officer Davis prepared to shoot Shifflett with a firearm. Regarding whether he
believed at that moment that Shifflett would seriously injure or kill him, Sergeant
Shawver later testified,
Yes, ma’am. . . . As I get to a certain distance, he turns around and sees me, and then he’s picked up an axe in the right hand and he picks up a garden rake now. He sees me coming and slams it down on the ground . . . . [S]o you are thinking if he does this, I’m going to do this. . . . And he kind of stood his ground; I kind of stood my ground.
Sergeant Shawver again pointed the taser at Shifflett. Shifflett said, “Fucking do
it. Do it. Do it. In Jesus’ name. In Jesus’ name.”
Sergeant Shawver successfully fired the taser. Shifflett dropped the axe, ran a
few feet from the officers, dropped to the ground, and submitted to the officers’
commands. Paramedics arrived at the scene and removed the taser’s probes from
Shifflett. The officers discussed Shifflett’s possible charges arising from the incident,
including resisting arrest, disorderly conduct, and deadly conduct.3
A grand jury indicted Shifflett with aggravated assault against a public servant, a
first-degree felony.4 The indictment alleged that he had threatened Sergeant Shawver
with imminent bodily injury by swinging the axe—a deadly weapon—in a threatening
Before a jury, Shifflett pleaded not guilty. After the parties presented evidence
and rested, Shifflett asked the trial court to include in the jury charge an instruction on
interference with a public duty—a Class B misdemeanor5—as a lesser-included
offense. The State objected, arguing that interference with a public duty was not a
lesser-included offense of aggravated assault because the allegations in Shifflett’s
indictment “had nothing to do with interfering with the performance of the officer’s
duty.” The trial court denied Shifflett’s request.

3The officers did not discuss a possible aggravated assault charge. Regarding the officers’ conversation about potential charges, Deputy Hemphill testified, “We’re not really clear about what charges we’re going to file. . . . We’re just spit balling, so to speak, just throwing charges that we can think of off the top of our heads right away.”
4See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2), (b)(2)(B).
5See id. § 38.15(a)(1), (b).
After considering the parties’ closing arguments, the jury found Shifflett guilty
of aggravated assault against a public servant. The jury heard evidence and arguments
concerning his punishment and assessed six years and six months’ confinement. The
trial court sentenced him accordingly, and he brought this appeal.
Alleged Jury Charge Error
On appeal, Shifflett argues only that the trial court erred by denying his request
for an instruction on a lesser-included offense. We use a two-step analysis to
determine whether Shifflett was entitled to an instruction on a lesser-included offense.
Bleil v. State, 496 S.W.3d 194, 214 (Tex. App.—Fort Worth 2016, pet. ref’d) (citing
Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007)). First, the lesser offense
must qualify as a lesser-included offense under article 37.09 of the code of criminal
procedure. Id.; see Tex. Code Crim. Proc. Ann. art. 37.09. Second, the record must
contain some evidence that would permit a jury to rationally find that if Shifflett is
guilty, he is guilty only of the lesser offense.6 Bleil, 496 S.W.3d at 214.
Under the second step, we evaluate the evidence in the context of the entire
record. Id. There must be some evidence from which a rational jury could have
acquitted Shifflett of the greater offense while convicting him of the lesser-included

6If we conclude, as we hold below, that under the second step, the evidence did not support submission of a lesser-included offense, we need not address the first step. See Tex. R. App. P. 47.1; Flores v. State, No. 13-14-00338-CR, 2015 WL 9487029, at *3 & n.2 (Tex. App.—Corpus Christi Dec. 29, 2015, pet. ref’d) (mem. op., not designated for publication).
offense. Id. Anything more than a scintilla of evidence is sufficient to entitle him to a
lesser charge. Id. We may not consider whether the evidence is credible, controverted,
or in conflict with other evidence. Id. The evidence must show that the lesser-included
offense is a rational alternative to the charged offense. Hall, 225 S.W.3d at 536. It is
not enough that such evidence “would support a conviction for the [lesser-included]
offense, as if that were the only offense the jury was authorized to convict upon.”
Moreno v. State, 858 S.W.2d 453, 459 (Tex. Crim. App. 1993). Rather, the record must
also show a rational basis for the jury to reject the greater offense. Zamora v. State, 998
S.W.2d 290, 293 (Tex. App.—Fort Worth 1999, pet. ref’d).
As charged in Shifflett’s indictment, a person commits aggravated assault
against a public servant if the person intentionally or knowingly threatens the public
servant with imminent bodily injury, uses or exhibits a deadly weapon (the axe) during
the commission of the assault, and commits the assault against the public servant
while the public servant is lawfully discharging an official duty (responding to a 9-1-1
dispatch). Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2), (b)(2)(B). A person
commits interference with public duties by, as is applicable here, acting with criminal
negligence to interrupt, disrupt, impede, or otherwise interfere with a peace officer
who is exercising authority granted by law. Tex. Penal Code Ann. § 38.15(a)(1).
As explained above, Shifflett cannot show his entitlement to a lesser-included
instruction merely by directing us to evidence showing that the jury could have
convicted him of interference with public duties. See Moreno, 858 S.W.2d at 459.
Rather, the record must contain evidence showing that the jury could have rationally
acquitted him of aggravated assault. Bleil, 496 S.W.3d at 214. Thus, to show that he
was entitled to a lesser-included-offense instruction, Shifflett must direct us to
evidence showing that the jury could have rationally found either that (1) he did not
intentionally or knowingly threaten Sergeant Shawver with imminent bodily injury, or
(2) he did not use or exhibit a deadly weapon during the commission of the assault.7
The record contains no such evidence. The evidence—drawn from testimony
of the three responding officers and from recordings made by their body cameras—
shows that before Sergeant Shawver arrived on the scene, Shifflett told Officer Davis
that if Officer Davis stepped on the property, he “better be prepared to shoot.” Cf.
Randle v. State, No. 10-11-00117-CR, 2013 WL 1188647, at *9 (Tex. App.—Waco Mar.
21, 2013, pet. ref’d) (mem. op., not designated for publication) (holding that a
defendant’s statements that showed his knowledge that a deputy might need to use
force against him in an altercation also established his understanding that his conduct
was threatening to the deputy and that the offense of deadly conduct was therefore
not a rational alternative to the charged offense of aggravated assault). When Sergeant
Shawver arrived, in response to Sergeant Shawver’s command to drop the axe,
Shifflett refused to do so and slammed it into the ground. He then yelled, “Come get
7On appeal, Shifflett appears to focus on the first element; he does not contest that the axe qualified as a deadly weapon or that he used or exhibited the axe. Also, it is undisputed that Sergeant Shawver was lawfully discharging an official duty during the incident with Shifflett.
it. You want to fucking try? . . . You say in God you trust? You trust me? Do you?”
Shifflett responded to continued requests to drop the axe by holding it in a swinging
position, slamming it into the ground on several occasions, and referring to himself as
a “goddamn warrior.” After Shifflett lost control of the axe and inadvertently dropped
it, Sergeant Shawver moved closer to him. Shifflett noticed he had done so and
responded by taunting, “Uh, uh, uh, uh,” holding the axe in the air, and banging it on
the ground. Sergeant Shawver then fired the taser, and the confrontation ended. We
conclude that this evidence does not permit any rational alternative to what the jury
found—Shifflett committed aggravated assault by intentionally or knowingly
threatening imminent bodily injury and while using or exhibiting a deadly weapon.
Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2); see Hall, 225 S.W.3d at 536; see also
Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012) (explaining that to justify
an instruction on a lesser-included offense, the record must contain affirmative
evidence that rebuts or negates the greater offense); Amaro v. State, 287 S.W.3d 825,
830 (Tex. App.—Waco 2009, pet. ref’d) (“Rios’s testimony that Amaro pointed the
rifle directly at him or in his general direction supports aggravated assault.”); St. Clair
v. State, 26 S.W.3d 89, 97 (Tex. App.—Waco 2000, pet. ref’d) (explaining that a threat
may be communicated by conduct and by words and holding that a defendant’s
accelerating a car in an officer’s direction supported an aggravated assault conviction).
Shifflett appears to contend that interference with public duties was a rational
alternative to aggravated assault either because he did not subjectively intend to
threaten the officers or because the officers’ actions belied their testimony that they
felt threatened by his words and acts. But even assuming that Shifflett did not intend a
threat or that Sergeant Shawver was not subjectively threatened—he testified he
was—aggravated assault by threat is a conduct-oriented crime, so the State was
required to prove only that Shifflett intentionally or knowingly engaged in conduct
that was objectively threatening under the circumstances. See Hernandez v. State, 470
S.W.3d 862, 868 (Tex. App.—Fort Worth 2015, pet. ref’d). We conclude that the
evidence described above satisfied the State’s burden to show that Shifflett
intentionally or knowingly engaged in conduct that was objectively threatening, and
the evidence did not present any rational alternative to the jury’s finding that he did
so. Cf. Carvajal v. State, 529 S.W.2d 517, 521 (Tex. Crim. App. 1975) (affirming a
conviction for aggravated assault by threat when the defendant pulled a loaded gun on
police officers but the gun was not cocked and could not be fired).
We conclude that the record does not contain evidence that would permit a
jury to rationally find that if Shifflett was guilty, he was guilty only of interference with
public duties rather than of aggravated assault against a public servant. See Bleil, 496
S.W.3d at 214. Thus, we hold that the trial court did not err by overruling his request
for an instruction on interference with public duties as a lesser-included offense. See
id. We overrule his sole issue.

Outcome: Having overruled Shifflett’s only issue, we affirm the trial court’s judgment.

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