Lucas v. State

• Decision Date: 09 November 2021
• Docket Number: 03-20-00068-CR
• Parties: Nathan Wade Lucas, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Nathan Wade Lucas, Appellant
v.
The State of Texas, Appellee

No. 03-20-00068-CR

Court of Appeals of Texas, Third District, Austin

November 9, 2021

Do Not Publish

FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 18-2439-K368, THE HONORABLE RICK J. KENNON, JUDGE PRESIDING

Before Justices Goodwin, Triana, and Kelly.

MEMORANDUM OPINION

Chari L. Kelly, Justice.

After a bench trial, the court found Nathan Wade Lucas guilty of aggravated assault with a deadly weapon, see Tex. Penal Code § 22.02(a)(2), and sentenced him to eight years in prison. In four appellate issues, he contends that (1) the evidence was insufficient to support findings that he used or exhibited a deadly weapon during the commission of an assault, (2) the court should have found in his favor on his defenses of mistake of fact and defense of a third person, see id. §§ 8.02(a), 9.33; (3) his sentence is unconstitutionally grossly disproportionate to his offense; and (4) trial counsel gave him constitutionally ineffective assistance by declining any more work by a forensic psychologist. We affirm.

BACKGROUND

Lucas lived with his girlfriend, Jennifer Hood, on property owned by Hood's mother. The property was divided in half by a creek, with Lucas and Hood living on one side and Hood's mother's brother and his wife, Johnny and Lisa Leverett, living on the other. After Lucas

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threatened to kill them during a dispute, the Leveretts moved away but continued to pay for their half of the property and receive mail there.

In fall 2018, Lisa Leverett picked her son up and drove to the property to check the mail. When she pulled up, she saw the gate to her half of the property unexpectedly opened and headlights near her trailer and suspected Lucas and Hood. She parked her truck so that it blocked an exit from that half of the property, told her son to call the police, and recorded all that followed with her phone camera. Lucas approached her truck; told her that she does not live there anymore, to "get the f- off the property," and that she had better leave or "he's going to kill [her]"; and banged on her rolled-up window. He then disappeared in the direction of the other half of the property, and his car's lights turned on over there. Soon after, Hood inched her car towards Leverett's parked truck. Hood's car bumped Leverett's truck twice.

After a few minutes, Lucas returned with what Leverett's son thought was a gun. It was in reality a golf club-a driver. Lucas believed that Leverett had rammed Hood's car because Hood told him so, and he swung the club into Leverett's windshield. He was standing near the front passenger side of the truck, and the club left a large crack in the windshield. Leverett did not see anything in his hands until after this first strike. Lucas then walked to the front-passenger window, next to where Leverett's son was sitting, and shattered the window with the club and yelled at Leverett to get out of the truck and again to leave the property. At some point the driver head of the club broke off. The club struck Leverett's son's arm, which started bleeding, either from the club or the broken glass or both. Lucas's strikes to the windshield and to the passenger window "scared [Leverett] badly," and she thought that he would make good on his statement that he would hurt her. She was afraid that he would hit her with the club and kill her or her son, who feared for his life himself. In response to all this, Leverett pulled her husband's

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gun out of the truck's center console and briefly pointed it at Lucas, but she quickly put it back in the console as she did not know how to use it.

Lucas continued by approaching Leverett's driver's-side window, next to where she was sitting, and shattered it as well. She did not see the club in his hand anymore, but she thought that he shattered the window with the club or with another blunt object "because" on Lucas's second swing "it hit me in my head." Some of the broken glass gave her minor cuts.

The police arrived shortly after. One of the sheriff's deputies who responded saw the headless golf club. Based on his training and experience with dangerous situations, the deputy said that wielding a headless club while acting threateningly and aggressively less than two feet away is considered deadly force. The deputy also said that the club, with or without the head, was capable of causing serious bodily injury.

The State indicted Lucas for aggravated assault with a deadly weapon, and both guilt-innocence and punishment were tried to the bench. The court found Lucas guilty and sentenced him to eight years in prison. Lucas moved for a new trial, arguing that evidence tending to show his innocence was not adduced at trial and that the evidence was insufficient to support his guilt. After an evidentiary hearing, the court denied the motion. Lucas now appeals.

DISCUSSION

I. The evidence allowed the court to find beyond a reasonable doubt that Lucas committed aggravated assault and that his defenses were unavailing.

The standards for reviewing Lucas's first two appellate issues are intertwined. In his first issue, he attacks the sufficiency of the evidence to support the deadly-weapon element of aggravated assault, see Tex. Penal Code § 22.02(a)(2), contending both that there was no evidence that he was holding the golf club when he smashed the driver's-side window and that the club

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could not have been a deadly weapon either once it lost its head or while Leverett was in the car with the windows rolled up. In his second issue, he contends that he made a mistake of fact, see id. § 8.02(a), by believing that Leverett had rammed Hood's car, which he says supported his defense of defense of a third person, see id. § 9.33.

When assessing the sufficiency of the evidence to support a conviction, we apply the standards announced in Jackson v. Virginia, 443 U.S. 307 (1979): "we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021) (citing Jackson, 443 U.S. at 318-19). We must defer to the factfinder's credibility and weight determinations because it is the sole judge of witnesses' credibility and the weight to be given testimony. See id. In our review we may consider "events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Id. (internal quotations omitted) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Id. "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Id. at 914-15. "On appeal, the same standard of review is used for both circumstantial and direct evidence cases." Id. at 915.

Similarly for defenses that the State must disprove beyond a reasonable doubt, if such a defense is raised by the evidence, we review both the factfinder's rejection of the defense and whether there was sufficient evidence to prove the offense under the Jackson standard.

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See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Smith v. State, 355 S.W.3d 138, 144-45 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd). In a case involving such a defense, the factfinder's finding of guilt implies a finding against the defendant on the defensive theory. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Smith, 355 S.W.3d at 144. Both mistake of fact and defense of a third person are defenses that if raised by the evidence the State must disprove beyond a reasonable doubt. See Tex. Penal Code §§ 2.03, 8.02(a), 9.02, 9.33; Young v. State, 542 S.W.3d 830, 836 (Tex. App.-Amarillo 2018, pet. ref'd); Winkley v. State, 123 S.W.3d 707, 712 (Tex. App.-Austin 2003, no pet.). The factfinder, like when deciding whether the elements of an offense have been proven beyond a reasonable doubt, "is free to accept or reject defensive evidence" when deciding whether the State has proven its case beyond a reasonable doubt despite the defensive theory. See Winkley, 123 S.W.3d at 712. If the factfinder could rationally have found against the defendant beyond a reasonable doubt on the defensive theory given all the evidence, we uphold the conviction. See Saxton, 804 S.W.2d at 914; Smith, 355 S.W.3d at 145-47; Winkley, 123 S.W.3d at 712.

The elements of the aggravated assault charged here are intentionally or knowingly threatening another with imminent bodily injury, which is an assault, and using or exhibiting a deadly weapon during the commission of the assault. See Tex. Penal Code §§ 22.01(a)(2), 22.02(a)(2); Philmon v. State, 609 S.W.3d 532, 536, 539 (Tex. Crim. App. 2020).^[1] The indictment

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specified that the threat was accomplished "by smashing a window or windshield, or striking the vehicle [Leverett] was occupying" and that the deadly weapon was "a golf club, or blunt other instrument." Lucas's first issue focuses on the deadly-weapon element.

The evidence was sufficient to...