Mark Mercer v. State, 02-16-00438-CR

Background

On Jan. 29, 2015, Tarrant County deputies in uniform executed outstanding arrest warrants at Mark Mercer’s third-floor apartment; after loud knocks and announcements, deputies forced entry with a battering ram.
Upon entry, deputies encountered Mercer (in a dark apartment) pointing a firearm at them; officers retreated and Mercer barricaded himself, leading to a multi-hour standoff resolved by SWAT.
Mercer was indicted on three consolidated counts of aggravated assault on public servants for pointing a gun at Deputies Mouton, Brown, and Hernandez; juries convicted and assessed concurrent 12-year sentences.
Mercer testified he suffered PTSD and had taken Hydrocodone and Ambien, believed intruders had entered, and that he did not know the entrants were police officers.
On appeal he raised jury-charge errors (placement of mistake-of-fact instruction, omission of self-defense and defense-of-property instructions as to the aggravated-assault-on-a-public-servant counts, and a statutory presumption instruction) and claimed improper State jury argument on voluntary intoxication and intent.

Issues

Issue	Plaintiff's Argument (Mercer)	Defendant's Argument (State)	Held
1. Placement of mistake-of-fact instruction	Placement after application paragraphs caused jurors to find guilt without considering mistake of fact	Charge must be read as a whole; instruction substance was correct and court read whole charge to jury	No error; charge viewed as whole, placement alone not reversible
2. Self-defense instruction for aggravated-assault-on-public-servant counts	Mercer requested self-defense as to those counts because he believed entrants were intruders	Self-defense requires defendant to admit all elements of the charged offense; Mercer denied knowing victims were public servants	No error; Mercer did not admit the element that victims were public servants, so no entitlement to that instruction
3. Defense-of-property instruction for aggravated-assault-on-public-servant counts	Same as (2): requested instruction applied to public-servant counts	Defense-of-property is justification requiring admission of offense elements; Mercer denied knowledge that they were public servants	No error; same rationale as (2) — not entitled to instruction as to public-servant counts
4. State's jury argument on voluntary intoxication and intent	Argued prosecutor misstated law and improperly suggested State need not prove intent beyond reasonable doubt	Prosecutor correctly argued Texas law: voluntary intoxication is not a defense and cannot negate culpable mental state	No error; prosecutor’s statement was a correct statement of Texas law and did not relieve State of burden
5. Statutory presumption that uniform indicates public-servant knowledge	Presumption unconstitutional as applied because Mercer might not have been able to see officers in a dark apartment	Presumption is a permissive statutory inference with proper jury instructions and does not shift burden	No error; permissive presumption lawful and a rational factfinder could apply it given the evidence

Key Cases Cited

Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012) (standard: review charge for error and view charge as whole)
Renteria v. State, 977 S.W.2d 606 (Tex. Crim. App. 1998) (correct legal argument by prosecutor is not error, even if not in charge)
Willis v. State, 790 S.W.2d 307 (Tex. Crim. App. 1990) (permissive statutory presumption with proper instruction does not violate due process)
Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007) (self-defense is a justification requiring admission of offense elements)
Ekern v. State, 200 S.W.2d 412 (Tex. Crim. App. 1947) (jury charge must be read as a whole)
Sakil v. State, 287 S.W.3d 23 (Tex. Crim. App. 2009) (voluntary intoxication law referenced in charges is correct)
County Court of Ulster v. Allen, 442 U.S. 140 (U.S. 1979) (permissive inferences upheld when rational trier of fact could draw connection)