      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00413-CR



                                     David Nandin, Appellant

                                                   v.

                                   The State of Texas, Appellee


 FROM THE DISTRICT COURT OF MCCULLOCH COUNTY, 198TH JUDICIAL DISTRICT
      NO. 5344, HONORABLE MELVIN REX EMERSON, JR., JUDGE PRESIDING



                                            OPINION


                Appellant David Nandin was convicted by a jury of the third-degree felony of

retaliation. See Tex. Penal Code § 36.06(a)(1)(A). After finding that Nandin had previously been

convicted of another felony, the jury assessed punishment at twenty years’ imprisonment and a

$10,000.00 fine. See id. §§ 36.06 (c), 12.33, 12.42(a). On appeal, Nandin claims (1) the trial court

erred in denying his motion to quash the indictment, (2) the evidence is insufficient to support the

jury’s verdict, and (3) the trial court erred in denying his requested jury instruction. We affirm the

judgment of the trial court.


                                          BACKGROUND

                The jury heard evidence that, on May 19, 2009, Ty Tully, a McCulloch County deputy

sheriff, was at the sheriff’s office adjacent to the McCulloch County jail, when a jailer called him for

help with an inmate who was in the jail recreation yard, throwing shoes and a weight. Deputy Tully
went out to the jail yard and saw Nandin extremely agitated, pacing back and forth in his boxer

shorts, his orange jail jumpsuit lying on the ground. Nandin told the deputy that he was upset with

the jail administrator for not getting the time credit that he claimed the administrator had promised

him. Deputy Tully ordered all the inmates in the jail yard “to go and have the jailer put them away”;

all but Nandin complied. The deputy then walked towards Nandin, who was still pacing back and

forth, to try to diffuse the situation and calm him down. However, according to Deputy Tully,

Nandin took an aggressive posture, put his fists up, stated “let’s go,” and started towards the deputy.

At that, Deputy Tully pepper-sprayed Nandin in the face. Again Nandin charged Deputy Tully and

swung at his head. The deputy, however, blocked Nandin’s closed fist and stepped back. Nandin

was subsequently indicted for retaliation for or on account of the service of a public servant. See

Tex. Penal Code § 36.06(a)(1)(A).


                                           DISCUSSION


Motion to quash indictment

               In his first issue, Nandin alleges the trial court abused its discretion in denying his

two motions to quash the indictment for failure to allege an offense. Originally, the indictment, in

pertinent part, read as follows:


               [Nandin did] intentionally and knowingly threaten to harm another to
               wit: Ty Tully, by an unlawful act, to-wit: trying to strike him, in
               retaliation for and on account of the service of the said Ty Tully as
               a public servant.




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Nandin argues an “unlawful act” is an essential element of retaliation. Citing Texas Penal Code

§ 22.01(a)(2) (“Assault”), he contends that “trying to strike” someone is not an offense unless the

State alleges and proves the requisite intent, that is, with the intent to cause bodily injury or threaten

imminent bodily harm. See Tex. Penal Code § 22.01(a)(2). Nandin thus asserts the indictment is

fatally defective because it failed to allege the requisite intent.

                At the pretrial hearing on Nandin’s first motion to quash, his counsel argued the

indictment failed to allege an offense “because there is no unlawful act in the Penal Code of trying

to strike someone.” Yet, he also stated, “I think in order for it to be an offense or an unlawful act,

maybe that’s a jury issue.” The court then followed with this statement, “we’ll leave that to the

jury,” to which Nandin’s counsel agreed.

                In addition to arguing the indictment failed to allege an offense, Nandin’s second

motion to quash asserted the indictment failed to allege a mental state on the “unlawful act.” Nandin

contended the indictment should read as follows: “intentionally or knowingly trying to strike”

Deputy Tully. At the hearing on that motion, the State agreed to include such language. The court

accepted the parties’ agreement, and thus the indictment reads as follows:


                [Nandin did] intentionally and knowingly threaten to harm another to
                wit: Ty Tully, by an unlawful act, to-wit: intentionally and knowingly
                trying to strike him, in retaliation for and on account of the service of
                the said Ty Tully as a public servant.


                Arguably, Nandin waived his first issue. In an abundance of caution, however, we

will address the issue.



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               In pertinent part, Texas Penal Code § 36.06(a)(1)(A), “Obstruction or Retaliation,”

reads as follows:


               (a)     A person commits an offense if he intentionally or knowingly
                       harms or threatens to harm another by an unlawful act:
                       (1)    in retaliation for or on account of the service
                              or status of another as a:
                              (A)      public servant . . . .


See Tex. Penal Code § 36.06(a)(1)(A). The Court of Criminal Appeals has pointed out that

section 36.06(a)(1)(A) has eight different elements, several of which have distinct alternatives that

may or may not be included in an indictment. Cada v. State, 334 S.W.3d 766, 770 (Tex. Crim. App.

2011); see also Tex. Penal Code § 36.06(a)(1)(A). Those elements and pertinent alternatives are the

following:


               (1)     The defendant
               (2)     a.     intentionally [or]
                       b.     knowingly
               (3)     a.     harms [or]
                       b.     threatens to harm
               (4)     another person
               (5)     by an unlawful act
               (6)     a.     in retaliation for [or]
                       b.     on account of
               (7)     a.     the service of another [or]
                       b.     the status of another
               (8)     as a
                       a.     public servant . . . .

Cada, 334 S.W.3d at 770. An indictment for retaliation must contain at least one item from each

element, although it may contain more than one alternative. Id. at 770-71.




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                In this case, Nandin was charged under section 36.06 of the Penal Code, not

under section 22.01 as he urges. The indictment alleged that Nandin intentionally and knowingly

threatened to harm Deputy Tully by an unlawful act, that is, by intentionally and knowingly trying

to strike him, in retaliation for and on account of Deputy Tully’s service as a public servant.

Trying to strike Deputy Tully, a peace officer, in retaliation for his service as a public servant, is

the unlawful act. As such, the indictment satisfied the requirements of section 36.06(a)(1)(A) by

containing at least one required item from the eight different elements of the statute. See Tex. Penal

Code § 36.06(a)(1)(A); Cada, 334 S.W.3d at 770. Having specified each of the elements of the

offense of retaliation, the indictment was facially correct and the trial court properly denied Nandin’s

motions to quash. Nandin’s first issue is overruled.


Sufficiency of the evidence

                Nandin asserts the evidence is legally insufficient to support his conviction for

the offense of retaliation. The standard of review for determining whether the evidence is legally

sufficient to support a conviction is “whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original);

see Johnson v. State, 364 S.W.3d 292, 293-94 (Tex. Crim. App. 2012).

                Deputy Tully testified he went out to the jail yard and saw Nandin extremely agitated,

pacing back and forth in his boxer shorts, his orange jail jumpsuit lying on the ground. The deputy

testified he ordered all the inmates in the jail yard “to go and have the jailer put them away,” and all

except Nandin complied. Deputy Tully stated he then walked towards Nandin, who was still pacing

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back and forth, to try to diffuse the situation and calm Nandin down. However, Deputy Tully

testified, Nandin took an aggressive posture, put his fists up, stated “let’s go,” and started towards

him. The deputy stated he then pepper-sprayed Nandin in the face. Deputy Tully testified that

Nandin again charged him and swung at his head; however, he blocked Nandin’s closed fist and

stepped back. The deputy stated that, if he had not moved, he would have been hit in the head by

Nandin’s fist.

                 Ranger Dewayne Goll testified he later interviewed Nandin who told him it was not

personal when he charged Deputy Tully. A video of Goll’s interview of Nandin, admitted as Exhibit

Nos. 1 and 2, was played for the jury. In the transcript of that video, admitted as Exhibit No. 3, Nandin

told Goll that “whenever that officer came towards me that’s when I started defending myself.”

                 Nandin contends an essential element of proving retaliation is showing that the harm

caused or threatened to a public servant is a retributive act for duties the public servant had already

performed. Nandin relies on the following two cases. The El Paso Court of Appeals reversed the

retaliation conviction of a juvenile who assaulted a supervisor who was trying to break up a fight

involving the defendant and another juvenile. See In re M.M.R., 932 S.W.2d 112 (Tex. App.—El

Paso 1996, no pet.). The court held that the juvenile only assaulted the officer in order to continue

the fight, not because the officer was a public servant. Id. at 115. Similarly, the First Court of Appeals

reversed the retaliation conviction of an inmate who assaulted a prison guard who was trying to stop

him from walking down the hall and to force him to return to a guard seated at a control desk.

Riley v. State, 965 S.W.2d 1 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (adopting reasoning




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of M.M.R.). The court held the evidence was insufficient to support the conviction because the State

failed to prove that the assault was in retaliation for duties already performed. Id. at 2.

               Because, Nandin asserts, no evidence indicates that his actions were intended as acts

in retaliation for or on account of Deputy Tully’s past duties as a public servant, the evidence is

insufficient to support his conviction for retaliation on account of the deputy’s service as a public

servant. We disagree. We find nothing in section 36.06(a)(1)(A) that requires that a defendant’s action

be in response to duties “already performed” by a public servant. See Penal Code § 36.06(a)(1)(A);

Cada, 334 S.W.3d at 770.

               Deputy Tully ordered Nandin to put his clothes back on and to go back inside the jail.

Rather than comply with the deputy’s orders, instead, when Nandin saw Deputy Tully coming

towards him with the purpose of diffusing the situation and “calming him down,” Nandin began

“defending himself” by taking an aggressive posture, putting up his fists, and advancing towards

the deputy who then pepper-sprayed him in the face. After being pepper-sprayed, Nandin again

charged Deputy Tully and swung at his head. Based on this evidence, we find that any rational trier

of fact could have found, beyond a reasonable doubt, that Nandin threatened to harm Deputy Tully

on account of his service as a public servant, that is, because Deputy Tully was discharging his duty

as a peace officer by attempting to calm down and then subdue Nandin with pepper spray to get him

back inside the jail. Having concluded the evidence is legally sufficient to support his conviction

for the offense of retaliation, Nandin’s second issue is overruled.


Denied jury instruction

               In his third issue, Nandin complains the trial court abused its discretion in denying

his requested jury instruction. In pertinent part, the jury charge read as follows:

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               Now, if you find from the evidence beyond a reasonable doubt that
               on or about the 19th of May, 2009, in McCulloch County, Texas,
               the defendant, DAVID NANDIN, did intentionally or knowingly
               threaten to harm another, to-wit: Ty Tully, by an unlawful act, to-wit:
               intentionally and knowingly trying to strike him, in retaliation for or
               on account of the service of the said Ty Tully as a public servant, then
               you will find the defendant guilty of the offense of retaliation as
               charged in the indictment.


Nandin requested that the jury charge contain language pursuant to the holdings in the M.M.R.

and Riley cases, that is, that the State had to prove beyond a reasonable doubt that the harm

resulted from a retributive attack for duties already performed. The trial court denied his request.

               The purpose of the charge is to instruct the jury on the law applicable to the case.

Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012); Abnor v. State, 871 S.W.2d 726,

731 (Tex. Crim. App. 1994); see Tex. Code Crim. Proc. art. 36.14. “Because the charge is the

instrument by which the jury convicts, [it] must contain an accurate statement of the law and must

set out all the essential elements of the offense.” Vasquez, 389 S.W.3d at 366, quoting Dinkins v.

State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1994). “It is not enough for the charge to merely

incorporate the allegation in the charging instrument. Instead, it must also apply the law to the facts

adduced at trial.” Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004). Jury charges that

fail to apply the law to the facts adduced at trial are erroneous. Id. at 128.

               In this case, Deputy Tully was discharging his duty and serving as a peace officer and

public servant when he ordered all the inmates in the jail yard, including Nandin, “to go and have

the jailer put them away.” He was further serving as a public servant when he attempted to calm

down the inmate Nandin who was pacing back and forth in his boxer shorts after earlier having



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thrown shoes and a weight. Deputy Tully also was serving as a peace officer and public servant

when, after the inmate Nandin took an aggressive posture, put up his fists, and advanced towards

him, he subdued the inmate with pepper spray.

               The jury charge having applied the elements of the offense of retaliation to the facts

adduced at trial, the trial court did not abuse its discretion in denying Nandin’s requested jury

instruction. Nandin’s third issue is overruled.


                                         CONCLUSION

               Having overruled all of Nandin’s issues on appeal, we affirm the judgment of

conviction.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Pemberton, and Rose

Affirmed

Filed: June 5, 2013

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