      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00075-CR



                                  Darrell J. Harper, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
      NO. D-1-DC-11-904087, HONORABLE CLIFFORD BROWN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Darrell J. Harper appeals from judgments convicting him of the offenses

of retaliation and terroristic threat. See Tex. Penal Code §§ 22.07(a)(6), 36.06. The jury found

appellant guilty of both offenses, and the trial court assessed sentences of six years’ confinement

to run concurrently. In two points of error, appellant challenges the legal sufficiency of the

evidence to support the jury’s verdict. Because we conclude that the evidence was legally

sufficient, we affirm the judgments of conviction.


                                        BACKGROUND

               Beginning in November 2009, appellant filed multiple claims for unemployment

benefits with the Texas Workforce Commission (TWC).              Among his claims, he sought

unemployment benefits after he was fired from his job in January 2010 for sending a letter that his

employer considered threatening. After TWC’s initial adjudications denying his claims, appellant
appealed to TWC’s appeals division, and a hearing was held on each claim before a TWC hearing

officer. In each of the appeals, the hearing officer affirmed the initial adjudication denying

appellant’s claim. Appellant then appealed each of those decisions to the commission, which also

denied his appeals and requests for rehearing.

               During the time that appellant’s appeals were pending with TWC, appellant wrote

and sent several letters to TWC. In a letter to TWC dated May 10, 2010, appellant questioned

TWC’s reasons for its decisions, raising fraud, racism, “false reports,” and “illegally withholding”

unemployment benefits from appellant. He listed payments that he was unable to make because of

TWC’s denial of benefits and, a few paragraphs later, stated:


       Claimant would hate to have to result [sic] to knocking some elderly person, whom
       [sic] may be related to board members, are [sic] board members may or may not
       know, in the head for their money on account of [TWC] accepts lies over truth, if
       provoked claimant may have to do so with an horrific outcome, and blame the entire
       ordeal on the [TWC], for theft of unemployment benefits and how racial profiling
       is acceptable in the workplace etc., in the State of Texas.


               Appellant sent another letter to TWC dated June 1, 2010. In the letter, appellant

asserted misconduct, fraud, racial profiling, and an “illegal act of corruption” by TWC employees.

He listed one of his hearing officers by name and concluded in the final paragraph of the letter:


       [TWC] cannot continue to mistreat people any way they so desire without an act of
       retaliations [sic] occurring. [TWC] has treated claimant as if he does not belong in
       the same city, state, or country with you all.


In the subject line of the letter, appellant wrote: “PREPARATION.”




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                 Appellant sent another letter to TWC by facsimile on June 22, 2010. Appellant

stated that he was appealing the hearing officer’s decision as to another one of his claims.

Appellant also stated:


       Since Respondent, [TWC], and Texas at will law has violated [Claimant’s]
       Constitutional Rights in more ways than one. The very next time the Texas at will
       law violates [Claimant’s] Constitutional Rights without claimant’s permission [sic].
       Claimant will enter State Capital [sic] where [TWC] resides, and shoot everyone
       “ass”. Claimant would not care if he had to follow employers [sic] working at
       location too and from their homes [sic]. Claimant would not care if he “shot up”
       [TWC] location in and around State of Texas. Claimant refuses to be treated as a
       doormat. This also includes any Unconstitutional Denial of Any Pending Appeals.

       ....

       Claimant . . . encourage[s] Respondent, [TWC] to call claimant’s bluff so claimant
       can make Respondent, [TWC] famous for provoking multiple acts of violent [sic]
       were performed where many innocence [sic] victims and their families be allowed
       to bring negligence lawsuits against the State of Texas at will, when the facts are on
       claimant’s side [sic].


A TWC attorney reviewed this letter and referred the matter to the Texas Department of

Public Safety.

                 Appellant eventually was indicted, he pleaded not guilty, and the matter proceeded

to a jury trial in November 2011. The State’s witnesses included employees from appellant’s

former place of employment, TWC hearing officers who conducted the hearings on his appeals, and

the attorney who reviewed the letter dated June 22, 2010. She testified that, after she reviewed the

letter, she referred the matter to the Texas Department of Public Safety because of safety concerns.

The exhibits included appellant’s letters, TWC records for each appeal, and CDs of the hearings

before the TWC hearing officers. Appellant did not testify and did not call any witnesses. His

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defensive theory at trial was that he sent letters to TWC to try to get TWC’s attention to properly

consider his claims.

               The jury returned a verdict of guilty for the offenses of retaliation and terroristic

threat. After a sentencing hearing, the trial court assessed sentences of six years’ confinement to

run concurrently. This appeal followed.


                                   STANDARD OF REVIEW

               Appellant’s points of error challenge the legal sufficiency of the evidence to support

the jury’s verdict. When reviewing the sufficiency of the evidence to support a conviction, we

consider all of the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex.

Crim. App. 2010). We review all the evidence in the light most favorable to the verdict and assume

that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable

inferences in a manner that supports the verdict. Jackson, 443 U.S. at 319; see Laster v. State,

275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The jury, as the exclusive judge of the facts, is

entitled to weigh and resolve conflicts in the evidence and draw reasonable inferences therefrom.

Clayton v. State, 235 S.W.3d 772, 778–79 (Tex. Crim. App. 2007).




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                                           DISCUSSION

        Retaliation

                In his first point of error, appellant contends that the evidence was legally

insufficient to support the jury’s guilty verdict for the offense of retaliation. Appellant argues that

the evidence shows only that he threatened “[TWC] generally, not the individuals employed therein

and not for the purpose of retaliating against the agency for conducting its statutory functions, but

instead for the purpose of complaining about his former employer’s racially motivated mis-

treatment of him as an employee.” He urges that his focus was on his former employer.

                We measure the sufficiency of the evidence by the elements of the offense as defined

in a hypothetically correct jury charge for the case. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim.

App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The record shows

that the actual charge was consistent with the hypothetically correct jury charge for the case. See

id.; see also Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Malik and

describing hypothetically correct jury charge). Tracking the relevant statutory language for the

offense of retaliation, the jury was instructed: “A person commits the offense of retaliation if he

intentionally or knowingly threatens to harm another by an unlawful act in retaliation for or on

account of the service or status of another as a public servant.”             See Tex. Penal Code

§ 36.06(a)(1)(A). The jury also was instructed that a “public servant” includes an “officer,

employee, or agent of government,” see id. § 1.07(41) (defining “public servant”), and the

application paragraph in the charge was consistent with the language from the indictment. See




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Malik, 953 S.W.2d at 240. We review the sufficiency of the evidence then by the elements of the

offense of retaliation as defined in the charge.

                The evidence at trial included testimony from TWC employees about appellant’s

actions during the time period that his appeals were pending before TWC, and the exhibits included

appellant’s letters, TWC’s records for his appeals, and the CDs from the hearings conducted by the

TWC hearing officers in which appellant testified and represented himself. The evidence showed

that appellant’s letters were sent to TWC during the time period his appeals were pending. In the

letters, appellant used words such as “an horrific outcome,” “multiple acts of violent,” and “act of

retaliations.” [sic] In the letter dated June 22, 2010, appellant challenged the denial of his

unemployment benefits and stated that the “very next time” his rights were violated that he would

enter TWC’s premises at its location on the Capitol grounds and “shoot everyone ‘ass.’” Given the

content and timing of the letters in the context of the pending appeals at TWC, a rational jury could

have inferred that appellant intended to threaten to harm TWC employees because of their

public service. See In re B.P.H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth 2002, no pet.)

(“Retaliatory intent may be inferred from an accused’s acts, words, or conduct.” (citing Dues

v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982))).

                Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational jury could have found beyond a reasonable doubt that appellant committed the offense of

retaliation. See Jackson, 443 U.S. at 319. Thus, we conclude that the evidence was legally

sufficient to support the jury’s guilty verdict as to that offense and overrule appellant’s first point

of error.



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        Terroristic Threat

                In his second point of error, appellant contends that the evidence was legally

insufficient to support the jury’s guilty verdict for the offense of terroristic threat. Appellant urges

that the evidence at trial “was distinctly different from the allegations in the indictment.” The

indictment alleged that appellant “did then and there threaten to commit an offense involving

violence to persons, to wit: shoot employees of the [TWC] and persons present inside the Texas

Capitol Building and persons present inside any building in which a division of the [TWC] is

located, with intent to influence the conduct or activities of a branch or agency of the government

of the State of Texas, to wit, the [TWC].” Appellant urges that “shooting everyone’s ass could just

as easily refer to their animals,” threats against property were not alleged in the indictment, and

there was no evidence to support an inference that his comments were intended to influence the

conduct or activities of a branch or agency of the government. Appellant also urges that his

comments were not directed against any person but against a governmental agency generally.

                As previously stated, we measure the sufficiency of the evidence by a hypothetically

correct jury charge for the case. See Cada, 334 S.W.3d at 773. The record shows that the actual

jury charge was consistent with the hypothetically correct jury charge for the case. Tracking the

applicable statutory language, the jury was instructed: “A person commits the offense of terroristic

threat if he threatens to commit any offense involving violence to any person or property with intent

to influence the conduct or activities of a branch or agency of the federal government, the state, or

a political subdivision of the state.” See Tex. Penal Code § 22.07(a)(6). The application paragraph

in the charge also was consistent with the language from the indictment. See Malik, 953 S.W.2d



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at 240 (noting that hypothetically correct jury charge must be “authorized by the indictment”); see

also Byrd, 336 S.W.3d at 246; Gollihar v. State, 46 S.W.3d 243, 254–55 (Tex. Crim. App. 2001).

The application paragraph confined the threat “to commit an offense” to an “offense involving

violence to persons.” In this context, we turn to our review of the sufficiency of the evidence

measured against the charge.

               In his letter dated June 1, 2010, appellant referenced one of his pending appeals,

listed “PREPARATION” in the subject line of the letter, and threatened an “act of retaliations” if

the TWC “continue[d] to mistreat people.” In his letter dated June 22, 2010, appellant referenced

a different appeal, threatened to “shoot everyone ‘ass’” at TWC’s location on the Capitol grounds

“the very next time” his rights were violated, stated he “would not care if he had to follow

employers working at location too and from their homes” [sic] and, a few sentences later, stated

that he “refuses to be treated like a doormat” and that “[t]his also includes any Unconstitutional

Denial of Any Pending Appeals.” Given the timing and the content of the letters in the context of

his pending appeals before TWC, the jury could have inferred that appellant’s threats were directed

at TWC employees—not just property or at animals—and that his threats to “commit an offense

involving violence to persons” were intended to influence the conduct or activities of TWC, namely

its pending rulings on his appeals.

               Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational jury could have found beyond a reasonable doubt that appellant committed the offense of

terroristic threat. See Jackson, 443 U.S. at 319. We overrule appellant’s second point of error.




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                                      CONCLUSION

              For these reasons, we affirm the judgments of conviction.




                                    __________________________________________
                                    Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: April 30, 2014

Do Not Publish




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