Niles v. State, PD–0234–17 & PD–0235–17

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation555 S.W.3d 562
Docket NumberNO. PD–0234–17 & PD–0235–17,PD–0234–17 & PD–0235–17
Parties Scott NILES, Appellant v. The STATE of Texas
Decision Date13 June 2018

555 S.W.3d 562

Scott NILES, Appellant
The STATE of Texas

NO. PD–0234–17 & PD–0235–17

Court of Criminal Appeals of Texas.

Delivered: June 13, 2018
Rehearing Denied September 12, 2018

Jonathan D. Landers, Houston, TX, for Scott Niles.

John R. Messinger, Assistant State Prosecuting Attorney, Stacey Soule, State’s Attorney, Austin, TX, for State of Texas.

Newell, J., delivered the opinion of the Court in which Keller, P.J., and Keasler, Hervey, Alcala, Richardson, Keel and Walker, JJ., joined. Yeary, J., filed a dissenting opinion.

Terroristic Threat is usually a Class B misdemeanor, but the offense is Class A misdemeanor "if the offense is committed against a public servant." Scott Niles, a firefighter, was charged by information with two counts of the Class A version for threatening his fellow firefighters. He was arraigned, tried, convicted, and sentenced on the two Class A counts. But the jury charges had tracked the Class B misdemeanor version of the crime; the jury was not asked if the terroristic threats were against public servants. Niles raised an "illegal sentence" claim on direct appeal. The State conceded that the jury charges only authorized convictions for Class B Terroristic Threat. The court of appeals reformed the judgments to convictions for Class B misdemeanors and remanded for re-sentencing in the Class B range.1 The question here is whether the court of appeals erred in doing so. We hold that it did. The failure to include a jury instruction on an element of an offense included within the charging instrument amounts to jury charge error subject to a harm analysis. We remand the case to the court of appeals to determine whether Appellant suffered any harm.


Appellant was a Houston firefighter assigned to Fire Station 64. The firefighters were required to have an unexpired driver's license–a regular one to drive the ambulance, or "a class B CDL" to drive the "heavy apparatus, the ladder trucks and the pumpers." They were assigned to drive an ambulance on a rotating basis, an assignment that paid extra. On April 29, 2014, Appellant was assigned to drive. But a fellow firefighter overheard him say that he did not have a driver's license and reported that to Captain Bradley Maddin. Appellant was summoned to meet with Maddin and Senior Captain Andrew Haygood. They asked for his license, and Appellant showed them his concealed handgun license, something that looks "very similar to a Texas driver's license" and "said that the concealed handgun license was enough." But it wasn't, and Haygood ordered Appellant to assume the role of patient care for the day; he would not be driving the ambulance. He was ordered to get the appropriate driver's license before his next shift. Appellant did not take it well. Later that morning, firefighters Robert Gordon and Mark Keelen approached Appellant. Gordon said that Appellant was "mumbling something inaudible and Firefighter Keelen asked him what's the matter. To that he responded, I'm going to start shooting people, I just need to figure out who I'm going to take out first."2 Keelen elaborated.

555 S.W.3d 565
Q And what exactly did he say?

A I am going to shoot everyone.

Q How did you respond to that?

A I said, including me. And it wasn't in a joke that I said that. I said, including me.

Q And what did he say?

A He didn't say anything. Just stone cold face, just sat there, didn't respond at all.

Q So once he says this and you ask him including me, then what happens?

A It brought an uneasy feeling in my stomach immediately.

Q And then what happened?

A We concluded the conversation and in that time Robert Gordon who was with me at that time, you know, he and I went over to–we have a chain of command. I'm sure you've heard about it through the other guys here. My chain of command as I'm a firefighter would be an engineer operator, otherwise known as an EO. And Robert Gordon and myself went to go speak with him about this issue and tell him what was said so he can pass it on.

Q I'm sorry. I thought you were done. You said you had an uneasy feeling in your stomach. What does that mean?

A I was in fear, you know, immediately I was in fear. Fear for my life.

Like many of the other firefighters, Keelen knew Appellant owned several guns. Appellant would bring his guns to the station, leave them in the back of his Subaru, and take firefighters down to show them off or try to sell them. "One that I remember, I would call it an UZI MAC–10 kind of looking gun that was black in color."3

Firefighter Robert Sadler and Appellant made an emergency run together that same day. Sadler testified that Appellant appeared to be "distant" and "upset" when he got in the ambulance.

A He got in, slammed the door, leaned against the window. He was wearing a ball cap at the time, had the ball cap down and was leaning against the window and looking straight ahead, and just kind of off in his own–in a zone, I guess you could say.

Q Did you make an effort to talk to him?

A Yes, ma'am.

Q And what did you say to him?

A I asked him if everything was okay.

Q What was his response?

A And he said that–he said that if he was going to kill everybody in the fire station, and then he told me the order in which he was going to do it.

Q And what order was that?
555 S.W.3d 566
A It started off with Captain Haygood, Robert Gordon, myself were the top three. And as soon as he said the first three, I asked him why.

Q And what was his response?

A His response was because you guys are gun owners. And then he said he would follow with the officers and then the rest of it, everybody else.

Sadler said that back at the station, and in front of another firefighter, Michael Lucas, Appellant said "if y'all piss me off, I will just come out and kill everyone."

This was not an isolated occurrence. Appellant's next shift was on May 5, 2014. Once again, he talked about shooting up the station–this time to firefighter Samuel Feris.

Q All right. And you were sitting there, you were reading you said, and what happened next?

A Scott came up and he was talking, but I was kind of trying to ignore him. I get really into my books when I'm reading. So I was trying to ignore him, but then at some point he made a statement that, I mean, I thought it was off, so it caught my attention.

Q What did he actually say to you?

A I don't remember exactly the words that he used, but in my statement I had it. But it's been about a year.

Q I understand.

A It was something to the effect of if I was going to kill everybody at the station, I would kill you last because you–it would take you longer to get away.

Captains Maddin and Haygood became aware of the threats that same day. Haygood was concerned about his personal safety, as well as that of his firefighters.

Q And why is that?

A Because I know that–I know what type of firearms Firefighter Niles has. I know that he has military experience. And I know that he is–I believe he is definitely irritated with me. So I was definitely–I was definitely concerned for myself, also my other–my crew members. I was concerned for everybody.

Q What specifically were you afraid he would do?

A Shoot me.

Q And what specifically were you afraid he would do to the other crew members?

A Shoot them.

The next day Haygood called Chief Robert Gutierrez for advice, and two days later, on May 7, 2014, Haygood called Chief Casey. "Chief Casey told me over the phone to tell Firefighter Niles to report [immediately] to his office." Appellant was also ordered to see Dr. Sam J. Buser, the clinical staff psychologist for the Houston Fire Department. While Appellant was absent from the station, investigators took statements from the firefighters regarding Appellant's comments. Appellant was later told not to come back to the station.


Appellant was charged by information with two offenses of terroristic threat–one against firefighter Mark Keelen, and one against Capt. Haygood. The informations alleged that both were public servants, Houston Fire Department Firefighters, which made the offenses Class A misdemeanors. During voir dire, both the trial judge and the State discussed the "public servant" element. The prosecutor stated,

I have to prove that the threat was against our complainants who are public servants. Now public servants can be firefighters, police officers, judges, etc. And you've already heard in this case our complainants are Houston Fire Department
555 S.W.3d 567
firefighters. So I have to prove that they're firefighters.

During the trial, it was never an issue that Keelen and Haygood were "public servants." Instead, Appellant's defense was that this was "not a crime but a human relations issue." There was no imminent threat; "When you go up the chain of command, you're talking about H.R. When you are scared for your life, you call the police." In response to Appellant's motion for directed verdict on the cases, the trial judge said of the "public servant" element, "The Houston Department firefighter, they got that." The judge ultimately denied the motion for directed verdict on the cases.

Unfortunately, the jury charges did not ask the jury to determine whether Keelen and Haygood were public servants. Though there were separate written charges...

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