In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00167-CR
CHRISTIAN HONEYCUTT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 198th District Court
Kerr County, Texas
Trial Court No. B22430
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
On March 1, 2023, a Kerr County jury1 convicted Christian Honeycutt of aggravated
assault with a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2) (Supp.). After
Honeycutt pled true to the State’s punishment-enhancement allegation, the jury assessed a
sentence of twenty-five years’ imprisonment. On appeal, Honeycutt raises two bases for
reversal: (1) that the trial court erred by refusing to instruct the jury on the lesser-included
offense of deadly conduct and (2) that his trial counsel was ineffective for failing to investigate
his relationship with the victim. Because we find both points are without merit, we affirm the
trial court’s judgment.
I. Honeycutt Was Not Entitled to a Lesser-Included-Offense Instruction
The State alleged that Honeycutt intentionally or knowingly threatened Michael Dean
Sheppard with a knife. Honeycutt argues that he was entitled to an instruction on the lesser-
included offense of deadly conduct because the evidence showed that he was merely “reckless”
in his conduct towards Sheppard. We find Honeycutt was not entitled to this instruction.
A. Factual Background
Honeycutt did not testify in his defense, but Sheppard testified that, on May 13, 2022, he
was in the bathroom at a Stripes convenience store attempting to use the restroom when
Honeycutt attacked him. Sheppard testified that he entered the bathroom and that there were “a
pair of legs walking back and forth in the stall.” According to Sheppard, Honeycutt “opened the
1
Originally appealed to the Fourth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We are unaware of
any conflict between precedent of the Fourth Court of Appeals and that of this Court on any relevant issue. See
TEX. R. APP. P. 41.3.
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stall door and . . . had a knife in his hand.” Sheppard said that the knife was “open” and was
“pointed” at him. Sheppard testified that he said, “Oh,” and backed up, exiting the bathroom.
Sheppard testified that he notified the store clerk of a man in the bathroom with a knife.
Honeycutt then opened the door to the bathroom with the knife, and Sheppard detained
Honeycutt until the police arrived and arrested him.
On cross-examination, Honeycutt attempted to establish that he simply held a knife and
may or may not have been threatening Sheppard with the knife. Sheppard, however, reiterated
that Honeycutt was pointing the knife at him and threatening him. For example, on cross-
examination, the exchange between Honeycutt’s counsel and Sheppard was as follows:
Q [Y]ou never previously indicated that he pointed a knife at you at
that first instance.
A I specifically said that he pulled a knife out on me. That’s
indicating that he pointed it at me.
....
Q . . . So it’s your testimony here today that you -- during your
interviews with Officer Virdell, you did allege that he pointed a knife at you when
you first went into that rest room. Is that what your testimony is today?
A Yes. He had a knife out on me.
Sheppard also was insistent that, although Honeycutt made no verbal threats against him,
Honeycutt’s conduct was still threatening and not merely reckless. During cross-examination,
the exchange between Sheppard and Honeycutt’s counsel was as follows:
Q . . . One last question. At any time during your investigation did
you determine if Mr. Honeycutt had made a verbal threat to anyone?
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A I don’t recall exactly. I don’t know that there is an actual verbal
threat, sir.
....
Q . . . Then there you say that as soon as you saw that knife -- since
you’re a combat vet, as soon as you saw that knife and he is walking towards you
without any verbal threats, you just snapped and you choked him out, right?
A Correct, because he was a threat, dangerous to myself and other
people and himself at that time.
Q Despite him making no verbal threats and just walking towards
you?
A You don’t need to make a verbal threat.
B. Standard of Review
The determination of whether to submit a lesser-included-offense issue to the jury is
subject to a two-part test. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993);
see also Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. [Panel Op.] 1981). Under the
first prong, “the lesser-included offense must be [contained] within the proof necessary to
establish the offense charged.” Rousseau, 855 S.W.2d at 672. Under the second prong, there
must be some evidence in the record that would permit a jury to rationally find “that if the
[accused] is guilty, he is guilty only of the lesser[-included] offense.” Id.
For the first prong, there is no dispute, and the State concedes, that “deadly conduct” is a
lesser-included offense of aggravated assault when it is alleged that the defendant used a deadly
weapon. See Bell v. State, 693 S.W.2d 434, 438–39 (Tex. Crim. App. 1985); Guzman v. State,
188 S.W.3d 185, 191 n.11 (Tex. Crim. App. 2006).
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Because the first prong is met, the Court will focus on the second prong of the analysis,
“whether the evidence admitted at trial ‘would permit a jury rationally to find that if the
defendant is guilty, he is guilty only of the lesser offense.’” George v. State, 634 S.W.3d 929,
937 (Tex. Crim. App. 2021) (quoting Solomon v. State, 49 S.W.3d 356, 369 (Tex. Crim. App.
2001)). The question presented in this second step of the analysis is whether there is some
evidence that Honeycutt, if guilty, is guilty of only the lesser-included offense of deadly conduct.
There are two ways to demonstrate that Honeycutt could be guilty of only the lesser-
included offense and not the offense of aggravated assault: (1) evidence was “raised that refutes
or negates other evidence establishing the greater offense” of aggravated assault and (2) “the
evidence presented regarding [Honeycutt’s] awareness of the risk may be subject to . . . different
interpretations.” Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012). In both such
instances, the jury should be instructed as to the lesser-included offense of “deadly conduct.”
See id. The evidence produced, however, must be sufficient to establish “a valid, rational
alternative to the charged offense” of aggravated assault. Hall v. State, 225 S.W.3d 524, 536
(Tex. Crim. App. 2007) (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999)).
“A person commits an offense [of deadly conduct] if he recklessly engages in conduct
that places another in imminent danger of serious bodily injury.” TEX. PENAL CODE ANN.
§ 22.05(a). For a deadly conduct instruction, there must be some evidence germane to
recklessness and not just intentional conduct. See, e.g., Cavazos, 382 S.W.3d at 385
(recognizing that “pulling out a loaded gun in a room full of people” and “shooting directly at a
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person” is not just “reckless” even when the defendant later told someone he did not intend to
shoot anyone).
C. Analysis
We find that Honeycutt supplied no evidence germane to recklessness or demonstrating
that his conduct merited the lesser-included deadly conduct instruction. Analogous to these facts
is Guzman v. State, 188 S.W.3d 185 (Tex. Crim. App. 2006). The defendant in Guzman raised a
similar issue to that raised in this case, whether the lesser-included offense of deadly conduct
should have been provided as an instruction when the defendant was charged with attempted
murder.
In Guzman, the defendant “put a loaded semi-automatic gun to his ex-girlfriend’s head
and pulled the trigger.” Id. at 186. The Texas Court of Criminal Appeals held that, although
Guzman’s conduct could be characterized as both reckless and intentional, he was not entitled to
an instruction on a “reckless state of mind” or “deadly conduct.” Id. at 193. The court held the
following:
While the statute setting out the elements of aggravated assault does not include a
special subsection describing the presumption that recklessness may be inferred
from the act of pointing a gun at a person’s head, it would defy logic—and the
canons of statutory construction—to assume that the legislature intended such a
statutory presumption to apply to the lesser, but not the greater, offense when both
require exactly the same “reckless” mental state.
Id.
Based on Guzman, simply because Honeycutt’s behavior could be characterized as both
reckless and intentional does not mandate that a deadly conduct instruction be given. Indeed,
after considering Sheppard’s testimony that Honeycutt opened his stall door and came towards
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him with a knife, we find no evidence to support Honeycutt’s claim that his conduct was merely
reckless such that he was entitled to a “deadly conduct” instruction. Accordingly, the trial court
was not required to instruct the jury on the lesser-included deadly conduct charge, and we find
no basis for reversal on this issue.
II. Honeycutt Cannot Show Ineffective Assistance of Counsel
As a second basis for relief, Honeycutt claims that his trial counsel was ineffective for
failing to investigate the relationship between Honeycutt and Sheppard.2 Honeycutt claims that,
had that relationship been fully investigated, it would have changed the outcome of his case
because Sheppard was associated with known drug dealers.
Pursuant to the Sixth Amendment, an accused is guaranteed the right to effective
assistance of counsel. U.S. CONST. amend. VI. The standard for assessing an ineffective
assistance of counsel claim is Strickland v. Washington, 466 U.S. 668 (1984), and the same
standard applies to ineffective assistance of counsel claims in Texas. See Hernandez v. State,
726 S.W.2d 53, 55 (Tex. Crim. App. 1986). Under Strickland, to prove his counsel was
ineffective, Honeycutt must make two showings: (1) that his trial counsel’s performance was
deficient and (2) that he was prejudiced as a result of his counsel’s performance. See McFarland
v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) (per curiam), overruled on other grounds
by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). To show deficient performance, he
must prove his counsel’s actions fell “below the professional norm for reasonableness.” Id. To
2
The reporter’s record shows that Honeycutt had five different attorneys at the trial court level.
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show prejudice, he must show that “there is a reasonable probability that, but for counsel’s
errors,” the result of the trial would have been different. Id.
Honeycutt specifically claims that his counsel was ineffective because he failed to
investigate the relationship between Sheppard and Honeycutt. In his motion for new trial,
Honeycutt notified the trial court that, after his conviction, an anonymous person provided a tip
to Crime Stoppers regarding Honeycutt’s encounter with Sheppard at Stripes. According to this
anonymous person, Honeycutt was “homeless at the time,” and Honeycutt went “over to a
residence at which he had previously stayed.” “At the residence [Honeycutt] busted out several
windows over a dispute and then fled on foot.” Two of the residents then chased Honeycutt to
the Stripes bathroom. The anonymous person then stated that Sheppard, who was associated
with drug dealers, was contacted to handle the situation with Honeycutt and to restrain him.
Sheppard was chosen because “he is a veteran,” which “makes his testimony seemingly
irrefutable.” Sheppard then incapacitated Honeycutt until the police arrived.
As recognized above, there are two prongs to Strickland: (1) deficiency and
(2) prejudice. In the present action, we cannot find that the first prong has been met. To assess
the reasonableness of an attorney’s investigation into a case, “a [reviewing] court must consider
not only the quantum of evidence already known to counsel, but also whether the known
evidence would lead a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S.
510, 527 (2003). In the present action, Sheppard testified at trial that he had never seen
Honeycutt before. The exchange between Sheppard and Honeycutt’s attorney was as follows:
Q . . . Had you ever seen [Honeycutt] before in your entire life, as far
as you know?
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A Nope.
The facts and information Honeycutt presented failed to contradict Sheppard’s testimony
that there was no relationship, and no evidence was presented that gave notice to Honeycutt’s
counsel of a potential relationship. Honeycutt himself may have informed counsel that there was
no relationship, and his counsel may have relied upon that representation. There is simply
nothing to dispute Sheppard’s testimony that there was no relationship between the two men.
Also, Honeycutt failed to demonstrate that his attorneys delayed in acting on information
available to them. Honeycutt did not establish that he disclosed any relationship or put his trial
counsel on any notice that he may have had a relationship with Sheppard. Indeed, under the
Wiggins standard, this information was not “known” to Honeycutt’s counsel at the time of his
conviction. The Crime Stoppers anonymous tip was reported on March 22, 2023. That was after
Honeycutt’s conviction on March 1, 2023. Notably, to advocate for Honeycutt and in response
to that tip, his counsel filed a motion for new trial on May 19, 2023, and his counsel attempted to
gain a new trial based upon that information. Considering these facts, we cannot find that
Honeycutt’s trial counsel was deficient. As a result, we overrule this ineffective assistance of
counsel claim.
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III. Conclusion
We affirm the trial court’s judgment.
Charles van Cleef
Justice
Date Submitted: December 8, 2023
Date Decided: January 12, 2024
Do Not Publish
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