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Date: 02-25-2021
Case Style:
Marcus Dewayne Nickerson v. The State of Texas
Case Number: 10-21-00008-CR
Judge: JOHN E. NEILL
Court: IN THE
TENTH COURT OF APPEALS
Plaintiff's Attorney: Jarvis J. Parsons
Nathaniel T. Wood
Douglas Howell III
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Waco, Texas - Criminal defense attorney represented Marcus Dewayne Nickerson with a Aggravated Assault charge.
In the instant case, appellant was charged by indictment with one count of
aggravated assault family violence causing serious bodily injury, a first-degree felony,
Nickerson v. State Page 2
and one count of unlawful possession of a firearm by a felon. The indictment also
included a deadly-weapon notice, as well as an enhancement paragraph. Thereafter,
appellant filed a motion to sever and to elect, and the State responded by dropping the
one count of unlawful possession of a firearm by a felon.
This matter proceeded to a trial before a jury. At the charge conference, appellant
orally objected to the charge and requested that, in addition to the lesser-included offense
of second-degree aggravated assault family violence causing bodily injury with a deadly
weapon that was included in the charge, the charge also include instructions on
misdemeanor and felony deadly conduct. The trial court denied appellant’s requests for
instructions on misdemeanor and felony deadly conduct.
Thereafter, the jury found appellant guilty of aggravated assault family violence
causing serious bodily injury with a deadly weapon and sentenced appellant to twentyseven-and-a-half years’ incarceration in the Institutional Division of the Texas
Department of Criminal Justice. The trial court certified appellant’s right of appeal, and
this appeal followed.
II. CHARGE ERROR
In his sole issue on appeal, appellant argues that the trial court erred by failing to
provide instructions on the lesser-included offenses of felony and misdemeanor deadly
conduct in the jury charge. We disagree.
Nickerson v. State Page 3
A. Applicable Law
We review a trial court’s refusal to include a lesser-included-offense instruction
for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App.
2004). An offense is a lesser-included offense if, among other things, it is established by
proof of the same or less than all the facts required to establish the commission of the
offense charged. See TEX. CODE CRIM. PROC. ANN. art. 37.09(1); Hall v. State, 225 S.W.3d
524, 527 (Tex. Crim. App. 2007). The Court of Criminal Appeals has set forth a two-step
analysis to determine whether the defendant is entitled to a lesser-included-offense
instruction. Hall, 225 S.W.3d at 535-36; see Jones v. State, 241 S.W.3d 666, 670 (Tex. App.—
Texarkana 2007, no pet.). Under the “cognate-pleadings” test, as set forth in Hall, the first
step concerns whether a lesser-included offense exists based on a comparison of the
greater offense, as contained in the charging document, and the lesser offense, without
looking to the evidence adduced in that particular case. Hall, 225 S.W.3d at 526; see Jones,
241 S.W.3d at 670. “This is a question of law, and it does not depend on the evidence to
be produced at trial.” Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011). Only after
the first step is answered positively do we proceed to the second step of conducting an
inquiry concerning whether there was sufficient evidence at trial to have required the
court to submit to the jury the issue of the lesser-included offense. Jones, 241 S.W.3d at
670-71.
Nickerson v. State Page 4
Appellant argues, and the State concedes, that felony and misdemeanor deadly
conduct are lesser-included offenses of aggravated assault with a deadly weapon-family
violence. Because the focus of the parties’ arguments is on the second step, we will
assume, without deciding, that misdemeanor and felony deadly conduct are lesserincluded offenses of aggravated assault family violence causing serious bodily injury
with a deadly weapon.1
B. Discussion
Under step two, appellant is entitled to a deadly-conduct instruction if “‘there is
some evidence in the record that would permit a jury rationally to find that if the
defendant is guilty, he is guilty only of the lesser-included offense.’” Hall, 225 S.W.3d at
536 (quoting Bignall, 887 S.W.2d at 23) (emphasis added); see Cavazos v. State, 382 S.W.3d
377, 383 (Tex. Crim. App. 2012). “This second step is a question of fact and is based on
the evidence presented at trial.” Cavazos, 382 S.W.3d at 383. A defendant is entitled to a
1 Section 22.02(a) states that a person commits the offense of aggravated assault if the person causes
serious bodily injury to another, including the person’s spouse, or uses or exhibits a deadly weapon during
the commission of the assault. TEX. PENAL CODE ANN. § 22.02(a). The offense is elevated to a first-degree
felony if the actor uses a deadly weapon during the commission of the assault and causes serious bodily
injury to a person whose relationship or association with the defendant is described in sections 71.0021(b),
71.003, or 71.005 of the Family Code. Id. § 22.02(b).
On the other hand, section 22.05(a) of the Penal Code provides that a person commits the offense
of deadly conduct “if he recklessly engages in conduct that places another in imminent danger of serious
bodily injury.” Id. § 22.05(a). This is commonly referred to as misdemeanor deadly conduct. Section
22.05(b) further provides that a person commits deadly conduct if he knowingly discharges a firearm at or
in the direction of one or more individuals or a habitation, building, or vehicle and is reckless as to whether
the habitation, building, or vehicle is occupied. Id. § 22.05(b). This is commonly referred to as felony deadly
conduct.
Nickerson v. State Page 5
lesser-included-offense instruction if some evidence from any source raises a fact issue
on whether he is guilty of only the lesser offense, regardless of whether such evidence is
weak, impeached, or contradicted. Id. “‘[A]nything more than a scintilla of evidence may
be sufficient to entitle a defendant to a lesser charge.’” Hall, 225 S.W.3d at 536 (quoting
Bignall, 887 S.W.2d at 23). However, a defendant is not entitled to a lesser-includedoffense instruction simply because the evidence supporting the greater offense is weak,
the evidence supporting the greater charge is discredited or weakened during crossexamination, or the jury might disbelieve crucial evidence pertaining to the greater
offense. See Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). That is, “there must
be some evidence directly germane to a lesser included offense for the factfinder to
consider before an instruction on a lesser included offense is warranted.” Id. “The
evidence must establish the lesser-included offense as ‘a valid, rational alternative to the
charged offense.’” Rice, 333 S.W.3d at 145 (quoting Hall, 225 S.W.3d at 536). Such is not
the case here.
Specifically, the evidence established that appellant and the complainant, C.K.,
were arguing on C.K.’s porch. During the argument, appellant repeatedly told C.K. that
“if I can’t be with you, nobody else is going to be with you.” Then, appellant turned and
walked away towards the parking lot of the duplex. However, prior to arriving at his
vehicle, appellant turned around and fired his gun at C.K. Investigators determined that
appellant fired four shots at C.K. and that one of the shots struck C.K. in the leg, near her
Nickerson v. State Page 6
knee. C.K.’s neighbor, Jessica Balderas, indicated that C.K.’s knee was bleeding due to
the gunshot. C.K. went to Balderas’s house after being shot and left a trail of blood from
her porch to the sidewalk between Balderas’s house and C.K.’s house. Balderas took C.K.
to the hospital for treatment.
Medical records indicated that the billing code used for C.K.’s injury was
“accidental discharge from unspecified firearms or gun initial encounter.” However, Dr.
Sarah Rapp, an emergency medicine physician at St. Joseph’s Hospital in Bryan, Texas,
explained that this was “something that billing did upon review of the chart.” Medical
records also indicated that C.K. denied the “presence of domestic violence,” But Dr. Rapp
countered that this designation was entered by a nurse, not her. Furthermore, C.K. told
Dr. Rapp that she did not feel any pain as a result of the gunshot wound and that the
person who shot her was “playing.” Dr. Rapp recalled being suspicious of C.K.’s
statements and the circumstances surrounding the gunshot wound. Moreover, in her
testimony, C.K. denied saying that this was an “accidental discharge from a gun” and
that appellant was just “playing.”
Wade Whitmer, M.D., was the orthopedic surgeon who treated C.K.’s injuries. Dr.
Whitmer described C.K.’s injury and showed it to be a serious bodily injury. He also
emphasized that the entrance wound on C.K.’s leg would have been larger than he
observed it to be if the bullet had struck asphalt or brick prior to hitting C.K.
Nickerson v. State Page 7
Regarding misdemeanor deadly conduct, there is no evidence from which the jury
rationally could conclude that appellant recklessly engaged in conduct that placed C.K.
in imminent danger of serious bodily injury, without intentionally, knowingly, or
recklessly causing serious bodily injury to C.K. when he did so. Likewise, there was no
evidence from which a jury rationally could conclude that appellant knowingly
discharged a firearm at or in the direction of C.K., without intentionally, knowingly, or
recklessly causing serious bodily injury to C.K. when he did so. In other words, there is
not more than a scintilla of evidence that would permit a jury rationally to find that if
appellant is guilty, he is guilty of only misdemeanor or felony deadly conduct, rather than
aggravated assault family violence with a deadly weapon.2
See TEX. PENAL CODE ANN. §§
22.02(a)-(b), 22.05(a)-(b); Cavazos, 382 S.W.3d at 383, 385 (“Meeting this threshold requires
more than mere speculation—it requires affirmative evidence that both raises the lesserincluded offense and rebuts or negates an element of the greater offense.”); Hall, 225
S.W.3d at 536; Bignall, 887 S.W.2d at 23; see also Guzman v. State, 188 S.W.3d 185, 197-98
(Tex. Crim. App. 2006) (Keller, P.J., concurring) 3
; Walker v. State, 994 S.W.2d 199, 203 (Tex.
2 The evidence does not demonstrate that appellant pointed his gun elsewhere to avoid hitting
C.K., see Bell v. State, 693 S.W.2d 434, 443 (Tex. Crim. App. 1985), or that appellant’s gun discharged
accidentally during a struggle over the gun, see Isaac v. State, 167 S.W.3d 469, 475 (Tex. App.—Houston
[14th Dist.] 2005, pet. ref’d). Rather, as noted above, it was undisputed that appellant knowingly
discharged the gun at or in the direction of C.K.
3
In her concurring opinion in Guzman v. State, Presiding Judge Keller noted the following, which
is relevant to the case at bar:
Under Harrell, Forest, and Jackson, the rule the State proposes follows logically from the
elements of aggravated assault and misdemeanor deadly conduct. Misdemeanor deadly
Nickerson v. State Page 8
App.—Houston [1st Dist.] 1999, pet. ref’d) (“Section 22.05 of the Texas Penal Code covers
intent that falls short of harming another: that is, although no physical harm results, the
acts are highly dangerous. . . . If injury actually occurs from appellant’s deliberate
conduct, the act of shooting towards the victim constitutes more than deadly conduct.”);
Ramirez v. State, 976 S.W.2d 219, 227 (Tex. App.—El Paso 1998, pet. ref’d) (“Once appellant
conduct is committed if the defendant recklessly engages in conduct that places another in
imminent danger of serious bodily injury. If, in committing that offense, the defendant
inflicts serious bodily injury, there can be no question that he has at least committed
aggravated assault by recklessly inflicting serious bodily injury. That being so, the
evidence cannot support a rational inference that the defendant is guilty only of deadly
conduct.
Although less obvious, it is also true that inflicting bodily injury while engaging
in an act that places the victim in danger of serious bodily injury constitutes the offense of
aggravated assault by recklessly inflicting bodily injury and using a deadly weapon. This
is so because the definition of deadly weapon encompasses anything that in the manner of
its use or intended use is capable of causing death or serious bodily injury. Our cases have
made clear that anything means anything. An act that places someone in danger of serious
bodily injury (relied upon to establish deadly conduct) necessarily entails using something
that, in its manner of use, is capable of causing serious bodily injury—and so establishes
the use of a deadly weapon.
. . .
Certainly the State could choose to charge conduct that inflicts injury as deadly conduct
rather than aggravated assault, just as the State could choose to charge conduct that inflicts
serious bodily injury as a simple assault rather than an aggravated assault. The question
is not whether the State could have prosecuted deadly conduct in the first instance but
whether a party is entitled to the submission of deadly conduct as a lesser-included offense
in the face of a fact that necessarily raises an offense greater than deadly conduct.
I would hold that, when a defendant is charged with committing an act that causes
bodily injury—e.g., aggravated assault—the second prong of the lesser included offense
test is never met when the evidence that the victim was injured is undisputed. Because
that it is the case here, I agree that appellant was not entitled to the instruction.
188 S.W.3d 185, 197-98 (Tex. Crim. App. 2006) (Keller, P.J., concurring) (internal citations and quotations
omitted).
Nickerson v. State Page 9
fired the gun and shot Rodrigo Ramirez, Rodrigo Ramirez was no longer merely in
imminent danger of serious bodily injury. . . . If injury results from Appellant’s conduct,
the act of shooting at Rodrigo Ramirez constitutes more than deadly conduct. The
evidence cannot support a rational inference by the jury that Appellant was guilty only
of deadly conduct.” (internal citations omitted)); Mares v. State, 903 S.W.2d 419, 422 (Tex.
App.—Eastland 1995, pet. ref’d) (“Section 22.05 covers intent which falls short of harming
another: that is, although no physical harm results, the acts are highly dangerous.”).
Accordingly, we cannot say that the trial court abused its discretion by refusing to include
appellant’s requested instructions on misdemeanor and felony deadly conduct in the jury
charge. See Threadgill, 146 S.W.3d at 666. We overrule appellant’s sole issue on appeal.
Outcome: We affirm the judgment of the trial court.
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