Background
In October 2022, Tony Len Nichols arrived at a La Quinta hotel in Amarillo in an agitated, intoxicated state, revealing a firearm to a hotel housekeeper and claiming a car dealer had wronged him. He retreated to his hotel room, took his girlfriend and a dog hostage, and refused police commands to open the door. Amarillo police treated the situation as a hostage incident and called in the SWAT unit.
Over the next several hours, Nichols made repeated verbal threats to shoot police officers. He communicated these threats by telephone directly to Amarillo P.D. crisis negotiators — stating, among other things, “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.” Negotiators relayed these specific threats by radio to officers on the scene, including Officer Bryan Gaitan. Nichols watched the officers from his hotel window. He was aware they were uniformed law enforcement. After police broke the window and deployed tear gas and chemical rounds, Nichols fired his weapon out the window in the direction of the officers before surrendering to less-lethal projectiles.
Nichols was charged with aggravated assault on a public servant — specifically naming Officer Gaitan in the indictment. The indictment alleged that Nichols “did threaten Bryan Gaitan with imminent bodily injury” and “did use or exhibit a deadly weapon, namely a firearm, during the commission of the assault.” At trial, Nichols requested (1) a jury charge definition of “threat” and (2) a lesser-included-offense instruction for felony deadly conduct (discharging a firearm). Both were denied. The jury convicted Nichols, and the trial court sentenced him to fifteen years. The judgment listed $1,500 in court-appointed attorney’s fees despite Nichols having been found indigent throughout the proceeding.
The Court’s Holding
The Seventh Court of Appeals affirmed the conviction but modified the judgment to delete the attorney’s fees provision, in an opinion by Chief Justice Parker.
On evidence sufficiency, the court held that Nichols’s general threats to shoot police — communicated to negotiators, relayed via radio, and received by Officer Gaitan — were sufficient to establish that Nichols threatened Gaitan with imminent bodily injury. Under Texas law, a threat need not be verbal and need not be personally delivered or directed to a specific named victim. See Olivas v. State, 203 S.W.3d 341 (Tex. Crim. App. 2006). Officer Gaitan was aware of Nichols’s specific threats, was within Nichols’s line of sight, and testified that he believed he was among Nichols’s intended targets when Nichols fired his weapon. That evidence was more than sufficient for a rational trier of fact to find the elements of aggravated assault on a public servant beyond a reasonable doubt.
On the jury charge, the court held that the trial court did not err by declining to define “threat” for the jury. “Threat” is not a statutorily defined term in the Texas Penal Code and carries no special technical or legal meaning. Under Green v. State, 476 S.W.3d 440 (Tex. Crim. App. 2015), courts may not define terms in the jury charge that are not statutorily defined, and jurors may assign such undefined terms any meaning acceptable in common parlance.
On the lesser-included-offense issue, the court applied the cognate-pleadings approach from Crawford v. State, 710 S.W.3d 774 (Tex. Crim. App. 2025). As charged in the indictment, the State was required to prove only that Nichols exhibited a deadly weapon — not that he discharged one. But discharging a firearm is an element of felony deadly conduct under Texas Penal Code § 22.05(b). Because discharge was not an element required to be proved under the charged offense, felony deadly conduct could not be deduced from the elements and charging language of the indictment, and it was not a lesser-included offense. The trial court therefore correctly denied the lesser-included-offense instruction.
Finally, the court modified the judgment to delete the attorney’s fees provision. Under Texas Code of Criminal Procedure Article 26.05(g), a trial court may only order an indigent defendant to reimburse court-appointed attorney’s fees upon a finding of financial resources sufficient to offset those costs. The record contained no such finding, and the State agreed the provision should be removed.
Key Takeaways
- A defendant’s threats to “shoot police officers,” communicated through telephone negotiators and relayed to uniformed officers on scene, are legally sufficient to establish a threat of imminent bodily injury for purposes of aggravated assault on a public servant — even if the defendant never named the specific officer or communicated threats directly to that officer.
- “Threat” under the Texas Penal Code has no statutory definition and carries its common meaning. Trial courts are not required — and are generally prohibited — from defining non-statutory terms in the jury charge.
- Under the cognate-pleadings approach, felony deadly conduct (discharging a firearm, § 22.05(b)) is not a lesser-included offense of aggravated assault by threat where the indictment charges only exhibiting a deadly weapon. The discharge element required for deadly conduct is additional, not lesser. Defense counsel who want a deadly conduct instruction must ensure the indictment expressly alleges discharge or that the State’s proof of discharge is uncontested.
- An indigent defendant’s judgment may not include a provision for attorney’s fees — even one that notes “fees not collected until defendant is able to pay” — without a specific judicial finding of the defendant’s financial resources under Article 26.05(g).
Why It Matters
Texas criminal practitioners who handle barricaded-individual cases, hostage situations, and law enforcement standoffs will find the evidence-sufficiency holding directly useful. Nichols confirms that the State need not prove the defendant named or personally confronted the specific officer listed in the indictment; threats communicated to negotiators and relayed to officers on scene satisfy the statute. The relay chain does not break the causal and communicative connection between the defendant’s threats and the officer’s reasonable apprehension of imminent bodily injury.
The lesser-included-offense analysis is equally significant for criminal defense practice. Nichols re-emphasizes the exhibit/discharge distinction: an indictment charging a defendant with exhibiting a deadly weapon during aggravated assault does not automatically open the door to a felony deadly conduct instruction. Defense counsel seeking that lesser instruction must ensure the charging instrument alleges — or the evidence uncontestedly establishes — actual discharge. The attorney’s fees holding is a straightforward reminder that Article 26.05(g) requires an affirmative finding of financial resources before a court may impose attorney’s fees on an indigent defendant; any judgment entry that includes such a provision without that finding should be challenged on appeal or by motion for modification.