David Nandin v. State
2013 Tex. App. LEXIS 6806
| Tex. App. | 2013Background
- Nandin was convicted by a jury of the third-degree felony of retaliation and sentenced to 20 years’ imprisonment plus a $10,000 fine.
- The charged offense arose from an May 19, 2009 incident in which Deputy Ty Tully attempted to diffuse an inmate disturbance at the McCulloch County jail yard and used pepper spray when Nandin advanced toward him.
- The indictment charged Nandin with intentionally and knowingly threatening to harm Deputy Tully by an unlawful act (intentionally and knowingly trying to strike him) in retaliation for Deputy Tully’s service as a public servant.
- Nandin moved to quash the indictment for failure to allege an offense and to allege a requisite mental state; the court allowed language clarifying intent in the indictment.
- Nandin challenged the trial court’s denial of a jury instruction, seeking a retributive-duty based application of the law to the facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the indictment properly states an offense | Nandin: unlawful act not defined; missing required intent | State: indictment satisfies 36.06 elements | Indictment facially correct; overruled |
| Whether the evidence is legally sufficient to prove retaliation | Nandin: no proof of retributive intent for deputy duties | State: proof shows retaliation for deputy’s service | Evidence sufficient beyond a reasonable doubt |
| Whether the trial court erred by denying the requested jury instruction | Nandin: jury should be instructed to require retributive duty-based causation | State: correct application of law to facts; no error | No abuse of discretion; instruction properly denied |
Key Cases Cited
- Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011) (retaliation elements; indictment may contain multiple alternatives from eight elements)
- In re M.M.R., 932 S.W.2d 112 (Tex. App.—El Paso 1996) (reversal where assault not shown as retaliatory for duties performed)
- Riley v. State, 965 S.W.2d 1 (Tex. App.—Houston [1st Dist.] 1997) (retrial reversed for lack of retributive intent in retaliation context)