Tony Len Nichols v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-25-00253-CR

TONY LEN NICHOLS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court
Potter County, Texas
Trial Court No. 083691-B-CR, Honorable Titiana D. Frausto, Presiding

June 10, 2026
MEMORANDUM OPINION
Before PARKER, C.J., and DOSS and PRATT, JJ.

Appellant, Tony Len Nichols, appeals from his conviction by jury of the offense of

aggravated assault on a public servant 1 and the resulting sentence of fifteen years’

imprisonment. Appellant challenges the sufficiency of the evidence to support his

conviction, the trial court’s refusal to submit Appellant’s requested instructions in the

1 See TEX. PENAL CODE § 22.02 (a), (b)(2)(B).
charge, and the judgment’s provision for recovery of attorney’s fees. We modify the

judgment in part and affirm as modified.

BACKGROUND

On an October morning in 2022, Lorrie Eads was going about her work as a

housekeeper at a La Quinta hotel in Amarillo when she heard tires squealing. She

stepped outside to investigate and saw a gray van screech to a stop. Appellant exited

the vehicle, along with his girlfriend. Appellant, who appeared angry and drunk, said that

a car dealer had “screwed him over” but “he would show them.” He opened his jacket,

revealing a gun. Eads observed that Appellant had a “pretty violent” demeanor and that

his girlfriend seemed “terrified.” Eads told him to calm down. She testified that Appellant

then went to his hotel room, where he held his girlfriend and a dog as hostages.

Eads went to the hotel office to report the incident. Amarillo police were called to

the scene, where they heard screaming from inside Appellant’s room. Appellant refused

to open the door and told the officers to go away. Police treated the matter as a hostage

situation and called in the Special Weapons and Tactics (SWAT) Unit. Officers on the

scene were uniformed and identifiable as law enforcement officers. Appellant was

agitated and made numerous verbal threats against the police officers. Eventually,

Appellant’s girlfriend was released from the room, and the police then treated the matter

as a barricaded individual situation. Appellant called 911 and spoke with police

negotiators off and on over the course of the next several hours. Officers on the scene

observed Appellant watching them from his hotel room window, and Appellant told

negotiators that he was going to shoot the officers if they did not leave. The police

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obtained a warrant for Appellant’s arrest for unlawful restraint. When their negotiations

did not lead to Appellant’s exit, they broke the window to Appellant’s room and launched

a canister of tear gas inside. Appellant did not surrender, so police delivered another

chemical agent, firing 40 mm Ferret rounds into the room. Appellant then fired his gun

out the window in the direction of the police officers. Appellant eventually exited his room

and was struck by “less lethal” projectiles fired by the police. He surrendered and was

taken into custody. Appellant was charged with the first-degree felony offense of

aggravated assault on a public servant.

ANALYSIS

Sufficiency of the Evidence

By his first issue, Appellant contends the evidence was insufficient to support his

conviction because he did not threaten Bryan Gaitan, the peace officer named in the

indictment. When we review the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict and determine whether 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, 318–19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). We presume that the

jury resolved any conflicting inferences in favor of the verdict and we defer to such

resolutions. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). A jury is

permitted to make reasonable inferences from the evidence presented. Hooper v. State,

214 S.W.3d 9, 14–15 (Tex. Crim. App. 2007).

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As charged in this case, a person commits the first-degree felony offense of

aggravated assault on a public servant by threat when (1) he commits assault by

“intentionally or knowingly threaten[ing] another with imminent bodily injury,” (2) he “uses

or exhibits a deadly weapon during the commission of the assault,” and (3) the offense is

committed “against a person the actor knows is a public servant while the public servant

is lawfully discharging an official duty . . . .” See TEX. PENAL CODE §§ 22.01(a)(2),

.02(a)(2), (b)(2)(B). A threat need not be verbal but may be communicated by action or

conduct. United States v. Taylor, 596 U.S. 845, 855, 142 S. Ct. 2015, 213 L. Ed. 2d 349

(2022); McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984). Moreover,

“there is no statutory requirement that a victim must instantaneously perceive or receive

th[e] threat of imminent bodily injury as the actor is performing it.” Olivas v. State, 203

S.W.3d 341, 350–51 (Tex. Crim. App. 2006).

Here, the indictment alleged that Appellant “did then and there, intentionally or

knowingly threaten BRYAN GAITAN with imminent bodily injury, and did use or exhibit a

deadly weapon, . . . when [Appellant] knew BRYAN GAITAN was a public servant . . . .”

Appellant argues that he did not speak to, threaten bodily injury to, wield a gun at, or

communicate any threat to Gaitan. Appellant acknowledges that “[t]here was ample

evidence that [he] discharged a weapon around or in the vicinity of Gaitan, possibly

constituting deadly conduct,” but contends that “there was no threat communicated to

Gaitan.”

The evidence presented at trial showed that Appellant made several threats

against the police. Amarillo Police Department Sergeant Joel Young, who spoke with

Appellant via telephone multiple times over the course of the hours-long incident, testified
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that Appellant made numerous threats to shoot officers. Officer Hamilton Stanfield, a

member of APD’s crisis negotiation team, also spoke to Appellant via telephone. The jury

heard recordings of some of these calls, which included Appellant making statements

such as, “If these cops don’t leave, I’m gonna kill ‘em,” “I will shoot these motherf---ers,

and I don’t care if I die,” and “I’m gonna run out the door and just f---ing fire on ‘em.” The

negotiators who were communicating with Appellant relayed this information to other

officers involved. APD Corporal Michael Vigil, who was on the scene with SWAT,

testified, “The radio communication was that this guy had made threats to kill police if we

tried to come in. He was ready to die. He wanted police to shoot him. He’d shoot us

between the eyes, things of that nature.” Officer Gaitan was aware of Appellant’s threats.

He testified that Appellant “was on the phone making several threats to kill police.”

Officer Gaitan and other officers were within Appellant’s field of view during the

incident. They saw Appellant watching them from his hotel room window. Officer Gaitan

testified that he observed Appellant at the window “a couple of times.” Officer Gaitan felt

that Appellant was “actively looking to see where [the officers] were.” When Appellant

fired shots through the window in the direction of the police officers, Officer Gaitan

“believed at that point that [he] was trying to shoot at us, or shoot at – or shoot one of us.”

Officer Gaitan testified that he believed that he and other officers were Appellant’s

intended targets and that he thought he was going to be shot.

Although Appellant may not have named Gaitan specifically, Appellant expressed

a desire to shoot police officers. Appellant monitored the officers’ movements and fired

his weapon in the direction of police officers on the scene, including Gaitan. Officer

Gaitan was aware of Appellant’s verbal threats and was subjected to Appellant’s conduct
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consistent with those threats. Officer Gaitan believed that he and other officers were the

intended targets of Appellant’s gunfire. This evidence is more than sufficient to permit a

rational trier of fact to conclude beyond a reasonable doubt that Appellant committed the

offense as alleged in the indictment. See, e.g., Paez v. State, 709 S.W.3d 718, 725 (Tex.

App.—Amarillo 2025, pet. ref’d) (rejecting defendant’s argument that his firing of weapon

in complainant’s direction did not threaten complainant, a bystander, because shots were

intended for rival gang members); see also Robbins v. State, 145 S.W.3d 306, 314 (Tex.

App.—El Paso 2004, pet. ref’d) (evidence defendant fired gun in officer’s direction

established aggravated assault). Accordingly, we overrule Appellant’s first issue.

Jury Charge

In his second issue, Appellant asserts that the trial court reversibly erred by

refusing to submit Appellant’s requested changes in its charge to the jury. During the

charge conference, counsel for Appellant requested that the trial court define the term

“threat” in the charge and also requested that the charge include a lesser-included offense

instruction for deadly conduct. The trial court denied both requests.

When we review a claim of jury charge error, we first determine whether any error

occurred; if error did not occur, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649

(Tex. Crim. App. 2012). If error occurred, whether it was preserved determines the

degree of harm required for reversal. Id.; see Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (op. on reh’g) (setting forth procedure for appellate review of claim

of jury charge error). If the jury charge error has been properly preserved by an objection

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or request for instruction, reversal is required if the appellant has suffered “some harm”

from the error. Almanza, 686 S.W.2d at 171.

At trial, Appellant’s counsel requested that the jury charge include the following

definition of “threat”: “A threat is when a person threatens to commit any offense involving

violence to any person or property with intent to place any person in fear of imminent

bodily injury.” The State argued that the term was not defined in the Penal Code, and the

jury was free to give it its common meaning. On appeal, Appellant asserts that he was

harmed by the trial court’s refusal to include this definition because the charge “left open

to interpretation what constituted an actual threat . . . .”

A trial judge is required to give the jury a written charge setting forth the law

applicable to the case. TEX. CODE CRIM. PROC. art. 36.14. Statutorily defined terms

constitute law applicable to the case and must be included in the court’s charge. Celis v.

State, 416 S.W.3d 419, 433 (Tex. Crim. App. 2013). It is generally impermissible,

however, for the trial court to define terms in the jury charge that are not statutorily

defined, as such terms are not considered to be “applicable law” under article 36.14.

Green v. State, 476 S.W.3d 440, 445 (Tex. Crim. App. 2015). Terms that are not

statutorily defined generally should be “read in context and construed according to the

rules of grammar and common usage.” TEX. GOV’T CODE § 311.011(a). Moreover, jurors

“may ‘freely read [undefined] statutory language to have any meaning which is acceptable

in common parlance.’” Kirsch, 357 S.W.3d at 650 (quoting Denton v. State, 911 S.W.2d

388, 390 (Tex. Crim. App. 1995)).

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The word “threat” is not defined by the statute. Moreover, Appellant has not

directed this Court to any authority indicating that “threat” has acquired a special legal or

technical meaning. See Olivas, 203 S.W.3d at 345 (Court of Criminal Appeals looked to

“common, ordinary meaning” of term “threaten,” showing that term does not have special

meaning requiring that it be defined for jury). Therefore, the jury was properly allowed to

assign the term any meaning ascribed in common parlance. Kirsch, 357 S.W.3d at 650.

We conclude that the trial court did not err by declining to define “threat” in the jury charge.

Appellant’s counsel also requested that the jury charge include “a lesser included

instruction for the offense of deadly conduct, discharging a firearm.” The trial court denied

Appellant’s request, which Appellant contends was error. The State argues that Appellant

failed to preserve this argument for our review. Assuming without deciding that Appellant

properly preserved the issue, we conclude that Appellant’s claim is without merit.

We review the trial court’s denial of a lesser-included-offense instruction for abuse

of discretion. Chavez v. State, 666 S.W.3d 772, 776 (Tex. 2023). To determine whether

a defendant is entitled to a lesser-included-offense instruction, we apply a two-part

analysis. Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016). We first compare

the elements of the alleged lesser-included offense with the elements of the charged

offense and any descriptive averments in the indictment. Safian v. State, 543 S.W.3d

216, 220 (Tex. Crim. App. 2018). If proof of the lesser offense is included within proof of

the greater offense, the first step is satisfied. TEX. CODE CRIM. PROC. art. 37.09(1); id.

Next, there must be a determination of whether there is some evidence in the record that

would permit a rational jury to find the defendant guilty of only the lesser offense. Rice v.

State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011).
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As is relevant here, one of the definitions of a lesser-included offense is one

“established by proof of the same or less than all the facts required to establish the

commission of the offense charged . . . .” TEX. CODE CRIM. PROC. art. 37.09(1); see Hall

v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). We use the cognate-pleadings

approach to evaluate whether an offense qualifies as a lesser-included offense for the

purpose of submitting it in the charge to the jury. See Crawford v. State, 710 S.W.3d 774,

782–83 (Tex. Crim. App. 2025). Under this approach, a lesser offense is included if the

charging instrument (1) alleges all of the elements of the lesser-included offense or (2)

alleges elements plus facts from which all of the elements of the lesser-included offense

may be deduced. Id.

Felony deadly conduct can be, but is not always, a lesser-included offense of

aggravated assault. See Hall, 225 S.W.3d at 531. A person commits aggravated assault

if he intentionally or knowingly threatens another with bodily injury and uses or exhibits a

deadly weapon during the commission of the assault. TEX. PENAL CODE § 22.02(a)(2). A

person commits felony deadly conduct “if he knowingly discharges a firearm at or in the

direction of: (1) one or more individuals; or (2) a habitation, building, or vehicle and is

reckless as to whether the habitation, building, or vehicle is occupied.” Id. § 22.05(b). In

this case, the indictment alleged that Appellant “did use or exhibit a deadly weapon,

namely a firearm, during the commission of the assault” on the officer. Even though the

evidence established that Appellant discharged a firearm, the State was not required to

prove that fact to support a conviction for aggravated assault by threat. Id. As charged,

the State was only required to prove that Appellant exhibited the firearm. Discharge of

the firearm, an element of felony deadly conduct, was not required to be proved. Thus,

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using the cognate pleadings analysis, felony deadly conduct is not a lesser-included

offense of aggravated assault by threat as charged in this case, and the trial court

correctly denied its inclusion in the charge. Knight v. State, 504 S.W.3d 524, 530 (Tex.

App.—Fort Worth 2016, pet. ref’d); see also Ex parte Watson, 306 S.W.3d 259, 273 (Tex.

Crim. App. 2009) (op. on reh’g) (per curiam).

Therefore, we conclude that the trial court did not err in declining to make either of

Appellant’s requested changes to the jury charge. Finding no error, we need not conduct

a harm analysis. Kirsch, 357 S.W.3d at 649. We overrule Appellant’s second issue.

Attorney’s Fees

In his final issue, Appellant seeks modification of the judgment to delete any

provision for attorney’s fees. Appellant was determined by the trial court to be indigent

and the record does not reflect that Appellant’s indigency status changed. The Bill of

Cost attached to the judgment in this case reflects a charge of $1,500 in attorney’s fees,

albeit with a balance owing of $0. The Bill of Cost also includes the following two

provisions:

Please Note – other fees may be applied at a later date: Upon this office
reviewing the Judgment, . . . Order to Pay court appointed attorney.

Attorney fees are not collected until the court finds the defendant able to
pay, pursuant to TXCCP Art. 26.05 section (g).

Appellant requests that the judgment and Bill of Cost be modified to avoid the potential

assessment of attorney’s fees. The State agrees that such a modification is appropriate

in this case.

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A trial court errs if it orders the reimbursement of court-appointed attorney’s fees

in the absence of record evidence demonstrating a defendant’s financial resources to

offset the costs of legal services. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App.

2010). Here, nothing in the record shows that the trial court found Appellant had the

financial resources to pay as required by article 26.05(g) of the Code of Criminal

Procedure. Accordingly, the reference to an assessment of attorney’s fees should be

deleted. See Fugett v. State, 721 S.W.3d 120, 123 (Tex. App.—Amarillo 2025, no pet.)

(reforming judgment under similar circumstances for accuracy).

CONCLUSION

We overrule Appellant’s first two issues. We sustain Appellant’s third issue

regarding the provision for attorney’s fees and modify the judgment to delete the

reference to the assessment of attorney’s fees. We affirm the trial court’s judgment as

modified.

Judy C. Parker
Chief Justice

Do not publish.

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