Joshua Michael Sykes v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00045-CR
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JOSHUA MICHAEL SYKES, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 163rd District Court
Orange County, Texas
Trial Cause No. B220020-R
________________________________________________________________________

MEMORANDUM OPINION

Appellant Joshua Michael Sykes was indicted for the offense of attempted

capital murder, a first-degree felony. Tex. Penal Code Ann. §§ 19.03(a)(1), 15.01(a),

(d). He was convicted of the lesser-included offense of aggravated assault against a

public servant, also a first-degree felony, and sentenced to 50 years in the

Institutional Division of the Texas Department of Criminal Justice. Tex. Penal Code

Ann. § 22.02(b)(2)(B). Sykes appeals his conviction, contending that the trial court

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erred in failing to submit a jury charge regarding the lesser-included offense of

deadly conduct. Tex. Penal Code Ann. § 22.05(b)(2).

Because the trial court did not abuse its discretion in denying the requested

charge, we affirm.

Background

On the afternoon of April 1, 2020, on Highway 12 near Vidor, Mr. Sykes was

moving about outside his trailer house carrying a rifle in the trailer park located on

that road. At one point, he blocked the roadway and, when asked to move, told the

driver of the vehicle that if the driver honked his horn at him one more time, he

(Sykes) was going to shoot him. The driver, out of concern for people who lived at

the trailer park, contacted 911 to report the man with the gun. Orange County

Sheriff’s Deputy John Ware responded to a report of a “suspicious person.” 1 When

Ware arrived at the location, an RV park in Vidor, Ware saw Sykes’ trailer with the

door partially open and a window open. As Ware proceeded past the trailer he

noticed the door open wider. Ware reversed and pulled to a stop at an angle with his

vehicle dash cam pointing directly at Sykes’ trailer to wait for back-up. In the video

shown to the jury, without objection, the door to the trailer suddenly closed and

seconds later shots were fired through the wall of the trailer into Ware’s vehicle.

Sykes shot at Ware’s marked patrol vehicle from inside his trailer, striking the front

1
By the time of trial, Ware had been promoted to the rank of detective.
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of the vehicle. Ware immediately left the scene, and summoned assistance to a

location across the street.

We summarize below the evidence relevant to Sykes’ sole appellate argument.

A. Officers’ Testimony

Multiple officers joined Ware in a parking lot near the RV park where Sykes

fired on Ware’s vehicle. They described the steps leading to Sykes’ arrest, recalling

that Ware and crisis negotiators initially contacted Sykes with a remote-controlled

robot with video and audio capability. During that interaction, Sykes expressed

frustration with the government, and did not surrender. When efforts to de-escalate

the situation proved unsuccessful, officers called in the tactical team, which

negotiated with Sykes. After a period of time, Sykes exited his trailer and was taken

into custody.

B. Joshua Sykes’ Testimony

Appellant Sykes testified that on the day of the offense, he intended to shoot

himself because of what he perceived as “military sound waves” in his ear, but

instead he shot through the wall of his trailer. He denied that he would ever hurt

anyone except in self-defense, and further denied that he knew Ware was outside the

trailer at the time he fired the weapon. Sykes denied that he shot at Ware’s marked

patrol vehicle. Sykes did, however, concede that he was reckless in firing the weapon

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inside his trailer. According to Sykes, his social media references to killing people

meant putting them on the right path, rather than ending their lives.

Sykes also testified that, among other things, he was the treasurer of the

United States, that the Bush family stole his family’s mineral interests, and that he

was affiliated with both the F.B.I. and Seal Team Six.

C. Requested Jury Instruction

At the close of evidence, Appellant requested his own lesser-included

instruction under 22.05(b)(2) of the Penal Code in addition to the state’s requested

lesser-included instruction under 22.02(b)(2)(B) of the Penal Code:

[DEFENSE COUNSEL]: Judge, I have a requested submission. We
talked about it back in chambers. I felt like there was evidence; and
after having been read back from Dianna, the court reporter, I felt that
there was enough evidence elicited from Josh that -- that there should
be an additional charge of reckless conduct.

THE COURT: All right. And the court --

[DEFENSE COUNSEL]: And, judge, just -- just to reiterate that, it
states that a person knowingly discharges a firearm in the direction --
habitation, building, or vehicle and is reckless to whether the habitation
or the veh -- veh -- building or vehicle is occupied. And I think that
there -- there was enough testimony from Josh to follow those criteria
for that to be included as a lesser included charge. And that’s
22.05(b)(2) of the Texas Penal Code.

The requested submission was denied by the court.

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Standard of Review

We review a trial court’s decision whether to incorporate a lesser-included

offense in the jury charge under a two-step analysis. See State v. Meru, 414 S.W.3d

159, 162 (Tex. Crim. App. 2013); see also Bullock v. State, 509 S.W.3d 921, 924

(Tex. Crim. App. 2016) (citations omitted). In conducting this analysis, we ask

whether the elements of the lesser offense are encompassed within the proof

necessary to establish the elements of the charged offense and whether there is

evidence in the record that could allow a jury to find that, if the defendant is guilty,

he is guilty of only the lesser offense. See Meru, 414 S.W.3d at 162-63; Safian v.

State, 543 S.W.3d 216, 218-19 (Tex. Crim. App. 2018). “An offense is a lesser

included offense if [] it differs from the offense charged only in the respect that a

less culpable mental state suffices to establish its commission[.]” Tex. Code Crim.

Proc. Ann. art. 37.09(3). “Both statutory elements and any descriptive averments

[i.e., manner and means] alleged in the indictment for the greater-inclusive offense

should be compared to the statutory elements of the lesser offense.” Ex parte Watson,

306 S.W.3d 259, 273 (Tex. Crim. App. 2009). Determining whether a defendant is

entitled to have the jury instructed on a lesser-included offense requires the trial court

to engage in a two-step process. See Hatton v. State, No. 09-17-00202-CR, 2019

Tex. App. LEXIS 800, *9 (Tex. App.—Beaumont Feb. 6, 2019, pet. ref’d) (mem.

op., not designated for publication); and see Safian, 543 S.W.3d at 219-20. This first

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step in our analysis does not depend on the evidence to be produced at trial. See

Safian, 543 S.W.3d at 220. Because the first step in the analysis is a question of law,

we conduct a de novo review. See Palmer v. State, 471 S.W.3d 569, 570 (Tex.

App.—Houston [1st Dist.] 2015, no pet.) (citing Hall v. State, 225 S.W.3d 524, 535

(Tex. Crim. App. 2007)).

In the second step of the analysis, the evidence relevant to the lesser-included

offense “must rise to a level that a rational jury could find that if [defendant] is guilty,

he is guilty only of the lesser-included offense[]” and that “[m]eeting this threshold

requires more than mere speculation—it requires affirmative evidence that both

raises the lesser-included offense and rebuts or negates an element of the greater

offense.” Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012). “The

evidence must establish that the lesser-included offense is a valid, rational alternative

to the charged offense.” Bullock, 509 S.W.3d at 925 (citing Rice v. State, 333 S.W.3d

140, 145 (Tex. Crim. App. 2011)). In the second step of the analysis, we review the

trial court’s decision for an abuse of discretion. Palmer, 471 S.W.3d at 570 (citation

omitted). We may not consider whether the evidence is credible, controverted, or in

conflict with other evidence. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.

1998). “Any evidence that the defendant is guilty only of the lesser included offense

is sufficient to entitle the defendant to a jury charge on the lesser included offense.”

Id. (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). The Court of

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Criminal Appeals has said that the guilty-only requirement is met if there is

affirmative evidence of a factual dispute that raises the lesser offense and rebuts or

negates other evidence establishing the greater offense. Chavez v. State, 666 S.W.3d

772, 776 (Tex. Crim. App. 2023) (citing Roy v. State, 509 S.W.3d 315, 319 (Tex.

Crim. App. 2017)).

Analysis

As the State has acknowledged in its brief, deadly conduct may be a lesser-

included offense of attempted capital murder. We therefore focus on the second step

of the analysis.

The offense of deadly conduct may be committed in two ways: by “recklessly

engag[ing] in conduct that places another in imminent danger of serious bodily

injury[,]” or by “knowingly discharg[ing] 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.” Tex. Penal Code Ann. §

22.05(a), (b)(2) (emphasis added). An offense under § 22.05(a) is a Class A

misdemeanor, while an offense under § 22.05(b)(2) is a third-degree felony. Tex.

Penal Code Ann. § 22.05(e).

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At trial, Sykes requested a jury charge on deadly conduct as defined in §

22.05(b)(2).2 In support of his request, he quoted the relevant statutory language and

contended that Sykes’ testimony adequately showed that he was guilty of only

deadly conduct as described in § 22.05(b)(2). Tex. Penal Code Ann. § 22.05(b)(2).

The trial court disagreed and denied the request.

To commit deadly conduct under § 22.05(b)(2), Sykes needed to knowingly

discharge a firearm in the direction of Ware’s vehicle, while being reckless as to

whether that vehicle was occupied. Tex. Penal Code Ann. § 22.05(b)(2).

“Knowingly” is defined as awareness of the nature of his conduct, while “recklessly”

is defined as awareness, but conscious disregard of, a substantial and unjustifiable

risk that the circumstances exist or the result will occur. Tex. Penal Code Ann. §

6.03(b), (c). To constitute recklessness, “[t]he risk must be of such a nature and

degree that its disregard constitutes a gross deviation from the standard of care that

an ordinary person would exercise under all the circumstances as viewed from the

actor’s standpoint.” Tex. Penal Code Ann. § 6.03(c). Sykes testified that, at the time

he shot his gun from inside the trailer, “I actually had intentions on shooting myself,

but instead I shot the wall twice. . . . I knew there was nobody there.”

2
We agree with the State’s assertion that Sykes did not request a lesser-
included instruction under § 22.05(a) or (b)(1) and thereby waived any error as to
those two provisions of the statute.
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However, the jury heard evidence that Sykes was moving about outside his

trailer house carrying a rifle in the trailer park on the date of the offense. At one

point, he blocked the roadway and, when asked to move, told the driver of the vehicle

that if the driver honked his horn at him one more time, he (Sykes) was going to

shoot him. The driver contacted 911 to report the man with the gun. Orange County

Sheriff’s Deputy John Ware responded to a report of a “suspicious person.” When

Ware arrived at the location, he saw Sykes’ trailer with the door partially open and

a window open. As Ware proceeded past the trailer he noticed the door open wider.

Ware reversed and pulled to a stop at an angle with his vehicle dash cam pointing

directly at Sykes’ trailer to wait for back-up. Then the door to the trailer suddenly

closed and seconds later shots were fired through the wall of the trailer into Ware’s

vehicle. In addition to requiring the defensive evidence to show that Sykes was guilty

of the lesser offense, and only the lesser offense, the evidence presented at trial must

also have rebutted or negated the other evidence establishing the greater offense in

order to require the lesser included offense requested. See Chavez, 666 S.W.3d at

776. In this case, the evidence of the greater offense of Aggravated Assault was not

rebutted or negated. In fact, the evidence, including that provided by Sykes, showed

that Sykes (1) threatened another with imminent bodily injury; (2) intentionally or

knowingly fired his weapon toward the front of his trailer only after the officer pulled

his vehicle in front of the trailer; (3) Sykes knew the person he threatened was a

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peace officer because a marked patrol car was in front of his trailer; (4) who was

lawfully discharging an official duty at that time; and (5) Sykes admitted using a

firearm to shoot through the front of the trailer. It was established that Sykes’ trailer

was in the back left corner of the trailer park and his door was opened as the vehicle

pulled up and parked in front of his trailer—before shutting quickly. No other

persons were located in the trailer who could have shut the door with the patrol car

sitting right outside the door except Sykes. This evidence does not rebut or negate

other evidence establishing guilt of the greater offense. We conclude that the

evidence presented to this jury did not raise a fact issue that would have allowed the

jury to conclude that Sykes was guilty only of the lesser included offense of reckless

conduct, if they concluded he was not guilty of attempted capital murder or

aggravated assault. See Chavez, 666 S.W.3d at 776.

Accordingly, we hold that the trial court did not abuse its discretion when it

denied Sykes’ request that the jury be charged on the offense of deadly conduct

under Tex. Penal Code Ann. § 22.05(b)(2).

We overrule Sykes’ sole appellate argument.

Conclusion

Because Appellant Sykes failed to show that he was entitled to the requested

jury instruction on deadly conduct, we affirm the trial court’s judgment.

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AFFIRMED.

JAY WRIGHT
Justice

Submitted on March 14, 2024
Opinion Delivered April 3, 2024
Do Not Publish

Before Golemon, C.J., Horton and Wright, JJ.

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