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

O P I N I O N

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 
Nicholson v. State Page 2

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 evadingarrest-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 

 

1 This 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 postsubmission brief.
Nicholson v. State Page 3

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 4

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 5

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 6

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 7

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 8

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 9

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 10

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 11

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 12

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 13

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 14

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 15

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 16

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 17

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 18

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 19

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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