### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00413- CR

David Nand in, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F MCCULLO CH COUNTY , 198 TH JUDICI AL DISTRICT NO. 534 4, H ONO RAB LE MELVI N REX EMERSO N, JR., J UDGE P RESIDING

O P I N I O N
Ap p el l ant David Nandin was convicted by a jury of the third-deg ree felony o f
reta liation. See Tex. Pena l Code § 36.06(a) (1)( A). After finding that Nandin had previously been convicted of another felony , the ju ry assessed punishment at twenty y ear s’ imprisonment and a $10,000.00 fine. See id. §§ 36.06 (c) , 12.33, 12.42(a)

. On appea l, Nandin claims (1) the trial court

err ed in deny

ing his motion to quash the indictment, (2) the evidenc e is insufficient to support the jury ’s verdic t, a

nd (3) the trial court err ed in deny ing his reque sted jury instruction. We a ffirm the judgme nt of the trial cour t.

BACK GR OUND The jury hear d evidenc e that, on May 19, 2009, T y T u lly , a McCulloch County deputy sheriff , was at the sheriff

’s office adjac ent to the McCulloch County jail, when a jailer called him for help with an inmate who was in the jail rec rea tion y ard, throwing shoes and a weig ht. Deputy Tullywent out to the jail y ard and saw Nandin extremely ag itated, pacing back and fort h i n his box er

shorts, his orang e jail jumpsuit ly ing on the g round. Nandin told the deputy that he was upset with the jail administrator for not g etting the time cre dit that he claimed the administrator had promised him. Deputy Tully order ed all the inmates in the jail y ard “to g o and have the jailer put them awa y ”; all but N andin complied. The deputy then walked towards Nandin, who was still pacing back a nd forth, to try to diffuse the situation and calm him d o wn . Ho we v er , acc ording to Deputy Tully , Nandin took an ag g ressive posture, put his fists up, stated “let’s g o,” and started towards the deputy

. At that, Deputy Tully pepper -spra y ed Nandin in the fac e. Ag ain Nandin char g ed Deputy Tully and
swung at his head. The deputy , howeve r, blocke d Nandin’s c losed fist and stepped ba ck. Na ndin

was subsequently indicted for reta liation for or on acc ount of the service of a public serva nt. See Tex. P enal Code § 36.06( a)( 1)(A)

.

DISCUSSIO N
Motion to quash ind ictm ent

I n his first issue, Nandin alleg es the trial court abused its discretion in deny ing his
two motions to quash the indictment for failure to alleg e an offe nse. Orig inally , the indictment, in pertinent pa

rt, rea d as follows:
[Nandin did] intentionally and knowing ly threa ten to harm another to wit: Ty Tully , by an unlawful act, to-wit: try ing to strike him, in reta liation for and on acc ount of the service of the s ai d Ty Tully as a public ser

vant.

2Nandin arg ues an “unlawf ul act” is an essential element of reta li at ion. Citi ng Texas Penal Code § 22.01(a) (2) (“Assault”) , he contends that “try ing to strike” someone is not an offense unless the State alleg es and proves the requisite intent, that is, with the intent to cause bodily injury or threa ten imminent bodil y

harm. See Tex. Penal C ode § 22.01(a) (2). Nandin thus asser ts the i ndictment is fata lly defe ctive bec ause it fa iled to alleg e the r equisite intent. At the pretri al hear ing on Nandin’s first motion to quash, his counsel arg ued the indictment failed to alleg e an offe nse “bec ause there is no unlawful act in the Penal Code of try ing to strike someone.” Yet, he a lso state d, “I think in orde r for it to be an offe nse or a

n unlawful a ct,
may be that’s a jury issue.” The court then followed with thi s s t at ement, “we ’ll leave that to the jury ,” to which Na

ndin’s counsel a g ree d. I n addition t o arg uing the indictment failed to alleg e an offe nse, Nandin’s second motion to quash asser

ted the indictment failed to alleg e a mental state on the “unlawf ul act.” Nandin contende d the indictment should rea d as follows: “intentionall y or knowing ly try ing to strike” Deputy Tully

. At the hear ing on that motion, the State ag ree d to include such lang uag e. The court

acc epted the pa

rties’ a g ree ment, and thus the indictment rea ds as follows:
[Nandin did] intentionally and knowing ly threa ten to harm another to w it : T y T u ll y , b y a

n u n la w f u l a c t, to

- w it : in

te n ti o n a ll y a

n d k n o w in g ly try ing to strike him, in reta liation for and on acc ount of the service of the said Ty

Tully as a public se rvant.
Arg uably , Nandin wa ived his first issue. I n an abundance of caution, howeve r, we will address the issue.

3I n pertinent part, Texas Penal Code § 36.06(a) (1)( A), “Obstruc tion or Retaliation,”

rea ds as follows:

(a) A person commits an offe nse if he intentionally or knowing ly harms or thre atens to har

m another by

an unlawf

ul act: (1) in reta liation fo r or on acc ount of the service or status of anothe r as a : (A) public serva

nt . . . .

See Tex. Penal C o d e § 36.06(a) (1)( A). The Court of Criminal Appea ls has pointed out that section 36.06(a) (1)( A) has eig ht differ ent elements, sever al of which have distinct alterna tives 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 alterna tives are the following :
(1) The de fenda nt (2) a. intentionally [or] b. knowing ly (3) a. harms [or] b. threa tens to harm (4) another

person (5) by an unlawf

ul act (6) a. in retaliation for [or] b. on acc ount of (7) a. the servic e of a nother [or] b. the status of anothe r (8) as a a. public serva

nt . . . . Cada , 334 S.W .3d at 770. An i ndictment for retaliat i o n must contain at least one item from each element, a lthough it may

contain more than one a lternative. Id. at 770-71.

4I n this case , Nandin wa s char g ed under section 36.06 of the Penal Code, not

under section 22.01 as he urg es. The indi ctment allege d that Nandin int entionally and knowing ly threa tened to ha

rm Deputy Tully by an unlawf ul act, that is, by intentionally and knowing ly try ing
to strike him, in reta liation for and on acc ount of Deputy Tull y ’s s er v i ce as a public serva nt. Try ing to strike Deputy Tully , a peac e offic er , i n re taliation for his service as a public serva nt, is the unlawful act. As such, the indictment satisfied the require ments of secti o n 3 6 .06(a) (1)( A) by containing at least one require d item from the eig ht differ ent elements of the statute. See Tex. Penal Code § 36.06(a) (1)( A); Cada , 334 S.W .3d at 770. Having specifie d eac h of the elements of the offe nse of reta liation, the indictment was fac ially corr ect and the trial court proper ly denied Nandin’s motions t o quash. Na

ndin’s first issue is overrule d.

Suf fi ciency of the evidence

Nandin asser

ts the evidenc e is leg ally insufficient to support his conviction for the offense of reta liation. The standa rd o f review for deter mining whether the evidenc e is leg ally sufficie nt to support a conviction is “whe ther, afte r viewing the evidenc e in the light most favor able
to the prosec uti o n, any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979) (empha sis in orig inal); see J ohnson v. State , 364 S.W .3d 292, 293-94 (Te x . Crim. App. 2012).

Deputy Tully testified he went out to the jail y ard and saw Nandin extremely ag itated, pacing back and forth in his box er shorts, his orang e jail jumpsuit ly ing on the g round. The deputy testified he order ed all the inmates in the jail y ard “to g o and have the jailer put them awa y ,” and all except Nandin complied. Deputy Tully stated he then walked towards Nandin, who was still pacing

5back and forth, to try to diffuse the situation and calm Nandin d o wn . Howeve r, Deputy Tully

testified, Nandin took a

n ag g ressive posture, put his fists up, s tated “le t’s g o,” and sta rted towa rds him. The deputy s t at ed h e t hen pepper -spra y ed Nandin in the fac e. Deputy Tully testified that Nandin ag ain char g ed him and swung at h i s head; howeve r, he blocked Nandin’s closed fist and stepped back. The de puty stated that, if he had not moved, he would have been hit in the head by Nandin’s f

ist. Rang er Dewa

y ne Goll testified he later interviewe d Nandin who told him it was not
persona l when he char g ed Deputy Tully

. A video of Goll’s interview of Nandin, admitted as Ex hibit N o s . 1 a n d 2 , w a s p la

y e d f o r th e ju r y . I n th e tr a n s c r ip t o f th a

t v id e o , a d mi tt e d a s E xh ib it N o . 3 , N a n d in told Goll that “wheneve r that off icer came towards me tha t’s when I started de fending my self.” Nandin contends an essential element of proving reta liation is showing that the harm

cause d or threa tened to a public serva nt is a retributive act for duties the public servant had already performed . Nandin re lies on the following two case s. The El Paso Court of Appe als reve rsed the
reta l iation conviction of a juvenile who assaulted a supervisor who was try ing to brea k up a fig ht involving the de fenda

nt and another

juvenile. See I

n 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 office r in or der to continue th e f ig h t, n o t b e c a

u s e th e o f f ic e r w a s a p u

b li c s e r v a n t. I d

. a t 1 1 5

. Si mi la

r ly , th e F ir s t Co u

r t o f A p p e a ls

reve rsed the reta liation conviction of an inmate who assaulted a prison g uard who was try ing to stop him from walking down the hall and to forc e him to ret u rn to a g uard seate d at a control desk. Riley v. State , 965 S.W .2d 1 (Tex. App.—Houston [1st Dist.] 1997, pet. ref ’d) (adopting rea soning

6of M.M.R. ). The court held the evidenc e was insufficient to support the conviction beca use the State failed to prove that the assault wa s in retaliation for duties a lrea dy perf ormed. Id. at 2. Be cause , Nandin asser

ts, no evidenc e indicates that his actions wer e intended as acts in reta liation for or on acc ount of Deputy Tully ’s past duties as a public serva nt, t h e ev i d en ce i s insufficient to support his conviction for reta liation on acc ount of t he depu t y ’s s ervic e as a publi c

s e r v a n t. We d is a g r e e . We f

in d n o th in g in s e c ti o n 3 6

. 0 6 ( a ) ( 1 ) ( A ) th a t r e q u ir e s th a t a d e f e n d a n t’ s a c ti o n be in response to duties “alr eady perf ormed” by a public serva

nt. See Penal Code § 36.06(a) (1)( A); Cada , 334 S.W .3d at 770.

Deputy Tully order ed Nandin to put his clothes back on and to g o back inside the jail. Rather t h an comply with the deputy ’s order s, instead, when Nandin saw Deputy Tully coming towards him with the purpose of dif fu s i n g t he situation and “ca lming him down,” Nandin beg an “def ending hims el f” b y t aking an ag g ressive posture, putting up his fists, and advanc ing towards th e d ep u t y wh o then pepper -spra y ed him in the fac e. After being pepper -spra y ed, Nandin ag ain char g ed Deputy Tully and swung at his head. Ba sed on this evidenc e, we find that any rational trier of fac t could have found, bey ond a rea sonable doubt, that Nandin threa tened to harm Deputy Tully

on acc ount of his service as a public serva nt, that is, beca

use Deputy Tully was discharg ing his duty

as a peac e office r by attempting to calm down and then subdue Nandin with pepper spray to g et him back inside the j ail. Having conclude d the evidence is leg ally sufficie nt to support his conviction for the of fense of re taliation, Nandin’s sec ond issue is overrule d.
Denied jury instruction

I n his third issue, Nandin complains the t rial court abused its discretion in deny ing his requeste d jury

instruction. I n pertinent pa rt, the jury

char g e re ad as f

ollows: 7Now, if y ou fin d fr o m the evidenc e bey ond a rea sonable doubt that o n or about the 19th of May , 2009, in McCulloch County , T ex as , the defe ndant, DAVI D NANDI N, did intentionally or knowing ly threa ten to harm another , to-wit: Ty Tully , by an unlawful act, to-wit: intentionally and knowing ly try ing to strike him, in reta liation for or on acc ount of the service of the said Ty Tully as a public serva nt, then y ou wi l l find the defe ndant g uilty of the offe nse of reta liation as char g ed in the indictment.

Nandin reque sted that t h e j u ry charg e contain lang uag e pursuant to the holdings in the M.M.R. and Riley case s, that is, that the State had to prove bey ond a rea sonabl e d o u bt that the harm resulted f rom a re tributive attack f

or duties alre ady

perf ormed. The trial court de nied his reque st. The purpose of the char g e is to instruct the jury on the l aw ap p l i ca b l e to the case . Vasquez v. State , 389 S.W .3d 361, 3 6 6 (T ex . Crim. App. 2012); Abnor v. Stat e , 871 S.W .2d 726, 7 3 1 (T ex . Crim. App. 1994); see Tex. Code Crim. Proc. art. 36.14. “B eca use the char ge i s t h e instrument by which the jury convicts, [i t] must c ontain an acc urate statement of the law and must set out all the essential e lements of the of fense .” Vasquez , 389 S.W .3d at 366, quoting Dinkins v. S t a t e , 8 9 4 S

. W .2d 330, 339 (Tex. Crim. App. 1994). “I t is not enoug h for the char g e to mere ly incorpora te the alleg ation in the char g ing instrument. I nstead, it must also apply the law to the fac ts adduce d at t rial.” Gray v. State , 152 S.W .3d 125, 127 (Tex. Crim. App. 2004). J ury char g es t hat fail to apply

the law to the f

acts a dduced at trial are err oneous. Id. at 128. I n this case , Deputy Tully was discharg ing his duty and serving as a peac e office r and public serva

nt when he order ed all the i nmates i n the j ail y ard, inc luding Na ndin, “to g o and have the jailer put them awa

y .” He was further serving as a public serva nt whe n h e attempted to calm down the inmate Nandin who wa s p acing back and forth in his box er shorts afte r ear lier having

8thrown shoes and a we i ght. Deputy Tully also was serving as a peac e office r and public serva nt when, afte r the inmate Nandin took an ag g ressive posture, put up his fists, and advanc ed towards him, he subdued the inmate w ith pepper spr ay .

The jury char g e having applied the elements of the offe nse of reta liation to the fac ts adduce d at trial, the trial court did not abuse its discretion i n d eny ing Nandin’s reque sted jury instruction. Nandin’s third issue is overr uled.

CONCLUSION Having overr

uled all of Nandin’s issues on appea l, we aff irm the judgme nt of conviction.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton, and Rose Affir med Filed: June 5, 2013 Publis h

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