Tony Len Nichols v. the State of Texas

Summary

The Texas Seventh Court of Appeals considered Tony Len Nichols’s appeal from his conviction for aggravated assault on a public servant and fifteen-year sentence. The court rejected his challenges to the sufficiency of the evidence and the denial of requested jury instructions concerning the definition of threat and the lesser-included offense of deadly conduct. The court modified the judgment to delete the assessment of attorney’s fees and affirmed the judgment as modified.

Holdings

1. The evidence was sufficient to support Nichols's conviction for aggravated assault on a public servant by threat because he made threats to shoot police, monitored the officers, fired toward them, and Officer Gaitan believed he and the other officers were intended targets, even though Nichols did not specifically name Gaitan.
2. The trial court did not err by refusing to define "threat" in the jury charge because the term is not statutorily defined and the appellant did not show that it had acquired a special legal or technical meaning.
3. Felony deadly conduct was not a lesser-included offense of aggravated assault by threat as charged in the indictment, and the trial court correctly refused the requested instruction.
4. The judgment's reference to assessment of attorney's fees had to be deleted because Nichols was indigent and the record did not show that the trial court found he had financial resources to pay.

Questions Presented

1. Whether the evidence was sufficient to prove aggravated assault by threat against Officer Bryan Gaitan even though Nichols did not name or directly address Gaitan.
2. Whether the trial court erred by refusing to define the term "threat" in the jury charge.
3. Whether felony deadly conduct was a lesser-included offense of aggravated assault by threat as charged in the indictment and therefore required a jury instruction.
4. Whether the judgment and bill of costs improperly provided for recovery or potential assessment of court-appointed attorney's fees without evidence that Nichols had the financial resources to pay.

Disposition

affirmed