NO. 07-10-00405-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 21, 2012

DUSTIN W. NALL, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE 

FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY;

NO. 1078788D; HONORABLE LOUIS E. STURNS, JUDGE

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant Dustin W. Nall appeals from his conviction by jury of capital murder 

and the automatic life sentence assessed against him. Through one issue, he argues 

the trial court abused its discretion in failing to instruct the jury on the lesser-included 

offense of felony murder. We will affirm.

Background

Appellant was charged with capital murder1of Bertha Wilkerson through an 

indictment that alleged he intentionally caused her death by cutting or stabbing her with 

 

1 Tex. Penal Code Ann. § 19.03(a)(2) (West 2008).
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a knife while committing or attempting to commit robbery of the victim. A second 

paragraph charged he committed the same act while committing or attempting to 

commit burglary of her habitation. The indictment also included a deadly weapon 

finding notice and a habitual offender notice. Appellant plead not guilty and went to trial 

before a jury.

Evidence at trial showed that during the early morning hours of August 4, 2007, 

the 25-year-old appellant stabbed and killed his uncle, and slashed his girlfriend’s 

throat. These attacks occurred at a motel. Some three hours later, and some two miles 

away, appellant appeared at the townhouse of Mrs. Wilkerson, his girlfriend’s neighbor. 

There, outside Mrs. Wilkerson’s front door, at about 6:30 on that morning, appellant 

stabbed the 68-year-old woman to death. Appellant entered her townhouse, 

encountered and threatened her grandson, and took Mrs. Wilkerson’s prescription pain 

medication and keys as he left the home. He was later apprehended in a nearby park. 

There, officers found a knife, six prescription bottles and Mrs. Wilkerson’s keys. Both 

appellant’s uncle’s blood and Mrs. Wilkerson’s blood was on the knife.

Mrs. Wilkerson’s daughter testified appellant had been inside Mrs. Wilkerson’s 

home two to three weeks before her murder. On that occasion, he approached Mrs. 

Wilkerson in her driveway, asking her to drive him somewhere. Mrs. Wilkerson told 

appellant she was taking pain medication but agreed to do so. Mrs. Wilkerson went 

inside her home to wait for appellant and his girlfriend to get ready. During that time, 

appellant knocked on her door three times, asking for a drink of water. Each time, she 
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allowed appellant into her kitchen. Mrs. Wilkerson’s medications were in plain sight on 

the end of the table in the dining room.

Appellant did not dispute his responsibility for the deaths of his uncle or Mrs. 

Wilkerson, or the injuries to his girlfriend. He challenged the evidence indicating the 

killing of Mrs. Wilkerson was intentional.

Mrs. Wilkerson suffered six stab wounds to the chest, abdomen, neck and the 

back of her arm near her shoulder. The medical examiner testified the wounds ranged 

from two to five inches in depth. The wound to the back of her arm was the fatal wound, 

was five inches in depth, and inflicted with such significant force that the knife was 

“driven...up to the handle.” An artery was severed, causing her to bleed to death. She 

also had eight defensive wounds. The record describes appellant as about six feet tall, 

and Mrs. Wilkerson as about five-and-a-half feet tall and obese.

The stab wounds to Mrs. Wilkerson were similar to those inflicted on appellant’s 

uncle, being in “approximately” the same areas of the body and of similar depths.

Appellant asked that the charge authorize the jury to convict him of the lesserincluded offense of felony murder. The trial court denied his request, giving the jury the 

choice of finding him not guilty, or guilty of capital murder. The jury found appellant 

guilty of capital murder, leading to the automatic life sentence. This appeal followed.

Analysis

In appellant’s sole issue on appeal, he argues the trial court abused its discretion 

in failing to charge the jury on the lesser-included offense of felony murder.
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The trial court's decision not to submit a lesser-included offense instruction is 

reviewed for abuse of discretion. Jackson v. State, 160 S.W.3d 568, 574 (Tex.Crim.App. 

2005); Threadgill v. State, 146 S.W.3d 654, 666 (Tex.Crim.App. 2004). The 

circumstances under which an offense is a lesser-included offense of another are 

defined by statute. Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006); Hall v. State, 

225 S.W.3d 524, 527-28 (Tex.Crim.App. 2007). 

Texas courts apply a two-step test to determine whether a lesser-included

offense instruction requested by a defendant must be given. Grey v. State, 298 S.W.3d 

644, 645 (Tex.Crim.App. 2009). The first step examines whether the asserted lesser 

offense is included within the proof necessary to establish the offense charged. 

Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993); Royster v. State, 

622 S.W.2d 442, 446 (Tex.Crim.App. 1981). Application of the first step of the test 

involves a question of law. Hall, 225 S.W.3d at 535. 

The second step of the test considers whether there is evidence to permit the 

jury rationally to find that the defendant, if guilty, is guilty only of the lesser offense.

Rousseau, 855 S.W.2d at 673; Nevarez v. State, 270 S.W.3d 691, 693 (Tex.App.—

Amarillo 2008, no pet.). Regardless of its strength or weakness, if any evidence raises 

the issue that the defendant was guilty only of the lesser offense, then the charge must 

be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). However, it is 

not enough that the evidence supporting the greater charged 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 
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offense. Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App. 1994). 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 that the lesser-included offense is a valid, rational alternative to the charged 

offense. Rice v. State, 333 S.W.3d 140, 145 (Tex.Crim.App. 2011).

“Felony murder” is the murder offense described by Penal Code section 

19.02(b)(3). Tex. Penal Code Ann. § 19.02(b)(3) (West 2012); Contreras v. State, 312 

S.W.3d 566, 5884 (Tex.Crim.App. 2010); see Lawson v. State, 64 S.W.3d 396, 397 

(Tex.Crim.App. 2001) (Cochran, J., concurring) (discussing history of felony murder). 

The State agrees with appellant that his capital murder indictment included the 

elements of felony murder, so the first step of the test was satisfied. See Salinas v. 

State, 163 S.W.3d 734, 741 (Tex.Crim.App. 2005); Fuentes v. State, 991 S.W.2d 267, 

272 (Tex.Crim.App. 1999) (both finding felony murder as lesser-included offense of 

capital murder so as to satisfy first step of test). 

Appellant could have been found guilty of felony murder without proof he 

intended to cause Mrs. Wilkerson’s death. Tex. Penal Code Ann. § 19.02(b)(3) (West 

2012); Salinas, 163 S.W.3d at 741; see Threadgill, 146 S.W.3d at 665 (person commits 

felony murder if, in course of felony commission, an unintentional murder is committed). 

To prove appellant guilty of capital murder under the indictment, the State was required 

to prove he intentionally caused Mrs. Wilkerson’s death. Tex. Penal Code Ann. § 

19.03(a)(2) (West 2008) (requiring, for guilt, that person “intentionally commits the 

murder”). 
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Because application of the second step of the test in this case thus requires that 

the record contain evidence by which the jury rationally could find that appellant, if 

guilty, is guilty only of felony murder, resolution of his appeal turns on the presence vel 

non of evidence that he did not intend to kill Mrs. Wilkerson. The evidence must be 

"directly germane” to the absence of an intention to kill, Bignall, 887 S.W.2d at 24, and 

must establish an unintentional killing as a valid, rational alternative to the conclusion he 

intended to cause her death. Rice, 333 S.W.3d at 145. 

In some cases there is direct evidence of a defendant’s intent in the form of incourt or out-of-court statements by the assailant describing his intentions. In Ross v. 

State, 861 S.W.2d 870 (Tex.Crim.App. 1992), the defendant admitted shooting the 

victim but claimed the shooting did not happen intentionally. Id. at 872. Instead, the 

defendant asserted, the gun “went off” as he shoved the victim with the gun, which was 

pointed toward the victim’s head. Id. The defendant there admitted to committing an act 

clearly dangerous to human life but denied intent to cause the death. Id. Appellant 

does not cite us to direct evidence of his intent at the time he stabbed Mrs. Wilkerson, 

and our review of the record reveals none. It was thus necessary for the jury to infer 

appellant’s intentions from the circumstances of the attack. See Guevara v. State, 152 

S.W.3d 45, 50 (Tex.Crim.App. 2004) (intent may be inferred from the acts, words, and 

conduct of the accused).

Appellant’s earlier attacks on his uncle and girlfriend; his later presence at Mrs. 

Wilkerson’s townhouse, armed with the same knife; the character of her previous 

dealings with appellant; the disparity in their physical statures; and the multiple stab 
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wounds he inflicted on Mrs. Wilkerson at her front door are among the circumstances 

supporting the jury’s inference his murder of her was intentional. Appellant argues the 

jury could have determined he appeared at Mrs. Wilkerson’s door under the pretext of 

using the bathroom or borrowing the phone and once inside, planned to steal the 

medications. Alternatively, he argues, the evidence is susceptible to the conclusion he 

was surprised by Mrs. Wilkerson while he was loitering outside and in a moment of blind 

panic, he lashed out at her with the knife, intending only to stop her screaming.

We find the language of the Court of Criminal Appeals in Rousseau, which the 

court quoted in Fuentes, 991 S.W.2d at 273, pertinent here: “the possibility that initially 

or at some point during the commission of the robbery the offender did not have an 

intent to cause death does not amount to evidence that the offender did not intend to 

cause the victim’s death when the murder was committed.” Rousseau, 855 S.W.2d at 

674. Similarly, that appellant may have intended only to steal Mrs. Wilkerson’s 

medications when he came to her home does not call for the submission of felony 

murder. Nor can we agree appellant’s other suggestion, that his actions were motivated 

by a panicked effort to stop Mrs. Wilkerson’s screaming, calls for the lesser-included 

submission. To begin with, we see no evidence appellant was surprised by Mrs. 

Wilkerson, or that he panicked. The argument is based merely on speculation. See 

Hooper v. State, 214 S.W.3d 9, 16 (Tex.Crim.App. 2007) (“[s]peculation is mere 

theorizing or guessing about the possible meaning of facts and evidence presented”). 

Moreover, an intention only to stop his victim from screaming is not incompatible with an 

intention to cause her death. The argument does not demonstrate that if guilty, 

appellant was guilty only of felony murder. Rousseau, 855 S.W.2d at 673. Given the 
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circumstances of his brutal attack on Mrs. Wilkerson, we find unpersuasive appellant’s 

argument the jury rationally could have determined that, while committing a felony, i.e. 

robbing her of her medications, he killed Mrs. Wilkerson without intending to do so. The 

evidence does not establish felony murder as a valid, rational alternative to the indicted 

offense. Rice, 333 S.W.3d at 145; see Mohammed v. State, 127 S.W.3d 163, 167 

(Tex.App.—Houston [1st Dist. 2003, pet. ref’d) (affirming denial of felony murder 

instruction as lesser-included offense). The evidence thus fails the second step of the 

Rousseau test. The trial court did not abuse its discretion when it refused to instruct the 

jury on the lesser-included offense of felony murder. We resolve appellant’s sole issue 

on appeal against him and affirm the judgment of the trial court.

James T. Campbell

Justice

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