Lead Opinion
OPINION
In four issues, appellant, Terry Ben Brock, challenges his conviction for the offense of retaliation against a public servant. See Tex. Penal Code Ann. § 36.06 (West 2011). Specifically, Brock contends that: (1) the evidence supporting his conviction is insufficient; (2) the trial court erred in failing to grant his motion to quash the indictment; (3) the trial court erred in instructing the jury to find him guilty on an element of the offense; and (4) the trial court erred in admitting extraneous-offense evidence. Because we reject all of Brock’s issues on appeal, we affirm.
I. Background
The incident in question transpired when Brock appeared before Coryell County Court at Law Judge John Lee after being charged with driving while intoxicated. Judge Lee testified that he denied Brock a personal-recognizance bond and that the denial upset Brock greatly. Judge Lee recalled that Brock was disruptive when the DWI case was being tried before a jury. Brock glared at Judge Lee during the trial, and Judge Lee described Brock’s demeanor as follows: “His body posture ... shaking his head ... mumbling under his breath. From the very start, he was out to disrupt the process.” Brock continued his disruptive behavior until Judge Lee directly admonished him. Judge Lee testified to the following: “It had been going on for hours, I had had plenty of his childish behavior. I told him, ‘You’re getting on my last nerve. I don’t want to see you sitting there shaking your head anymore.’ ” Judge Lee told Brock to sit up so that they could finish the trial. In response to Judge Lee’s admonishments, Brock gave a “mean look” and said, “Oh, I’ve got something for you, just wait.” Based on his glare, demeanor, and posture, Judge Lee interpreted Brock’s statement as “not a friendly — a friendly statement at all. I perceived it to be a threat.”
Judge Lee later testified that:
Well, it took me aback for a couple of seconds because I had to kind of process what I thought I had just heard. You know, it’s — it took me just a second to really think through, and I said, “Whoa, whoa, whoa. Stop. Just wait a minute.” So — because everybody — the attorneys were still talking and kind of — I think it was a little bit chaotic there. So I stopped him and I said, “Say again what you just said.”
Brock then responded that he had testimony to show the judge. However, Brock’s
Subsequently, the State rested its case in the other matter. When the defense called Brock to testify, Judge Lee attempted to swear in Brock. Judge Lee remembered the interaction as follows:
Well, the jury was in the box, just as these folks are now, and I had him stand and swore him, and I asked him, “Do you swear to tell the truth, the whole truth, and nothing but the truth,” and he said, “I find that” — or, “That’s a hypocritical question coming from you,” or “coming from this Court” or — “coming from this place,” I think he might have said. “That’s a hypocritical question coming from this place.”
[[Image here]]
I just said, “Mr. Brock, I’m going to ask you one more time. You want to testify. We’re trying to get you to testify. So do you swear to tell the truth?” And he still had his hand up, and he said, “You won’t let me tell the truth.”
Judge Lee excused the jury from the courtroom and spoke with Brock and the attorneys for the parties. At this time, Brock’s attornéy moved for a mistrial, which was granted.
In the instant case, Brock was charged by indictment with the offense of retaliátion against Coryell County Court at Law Judge John Lee, a public servant. See id. The case was tried in the 52nd District Court of Coryell County, Texas. In addition to Judge Lee’s testimony, Amberly Mathews of the Coryell County Sheriffs Department testified that she escorted Brock from the vehicle to the courthouse on the day in question. When he exited the vehicle, Brock told Deputy Mathews that “[h]e may get mouthy, but he wasn’t going to fight me.” Later, Jason Bobo of the Texas Rangers testified that Brock stated the following:
There’s several things. You know, the things I remember off the top of my head are his — his intent on the 21st in Judge Lee’s courtroom was to cause embarrassment, to delay the trial, to cost the taxpayers as much money as possible, and to — that’s really the gist of it.
Ranger Bobo also noted that:
Part of it was, I think he [Brock] had written — he told me he had written his family saying don’t come to the trial, why they couldn’t be in the courtroom. He talked about wanting to cause a mistrial, he thought maybe he would be charged with a misdemeanor or things along those lines.
At the conclusion of the evidence, the jury found Brock guilty of the charged offense. The trial'court assessed punishment at fifty years in the Institutional Division of the Texas Department of Criminal Justice. The trial court also certified Brock’s right of appeal, and this appeal followed.
II. Brock’s Motion to Quash the Indictment
In his second issue, Brock contends that the indictment in this case is duplicitous. Specifically, Brock asserts that the indictment improperly presented two separate crimes — retaliation and obstruction — in a single paragraph. And because the indictment is duplicitous, the jury could have found Brock guilty on a count without having to reach a unanimous verdict on the commission of any particular offense.
A. Standard of Review
In Smith v. State, the Court of Criminal Appeals articulated the standard of review for a motion to quash an' indictment as follows:
The sufficiency of an' indictment is a question of law and is reviewed de novo. State v. Moff, 154 S.W.3d 599 , 601 (Tex. Crim.App.2004) (citing Guzman v. State,955 S.W.2d 85 , 89 (Tex.Crim.App.1997)). The right to notice is set forth in both the United States and Texas Constitutions. See U.S. Const, amend. VI; Tex. Const, art. 1, § 10. In addition, the Texas Code of Criminal Procedure provides guidelines relating to the sufficiency of an indictment. See, e.g,, Articles 21.03, 21.04, and 21.11. Thus, the indictment must be specific enough to inform the defendant of the nature of the accusations against him so that he may prepare a defense. Moff154 S.W.3d at 601 . However, the due-proeess requirement may be. satisfied by means other than the language in the charging instrument. Kellar v. State,108 S.W.3d 311 , 313 (Tex. Crim.App.2003). When a .motion to quash is overruled, a defendant suffers no harm unless, he did not, in fact, receive notice of the State’s theory against which he would have to defend. Id.; see also Art. 21.19 (“An indictment shall not be held insufficient, nor.shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant.”).
B. The Indictment
The State may charge multiple offenses in a single indictment. See Tex. Code Crim. Proo. Ann, art. 21.24(a) (West 2009). However, “no paragraph may charge more than one offense.” Id. art. 21.24(b). “A ‘count’ is used to charge an offense and a ‘paragraph’ is a portion or subset of a count charging a method of committing that offense.” Riley v. State,
■ That said, an indictment may allege different methods of committing the same’ offense. See Martin v. State,
“Duplicity” is the technical fault of uniting two or more distinct and separate offenses in the same count of an indictment. See Tex.Code Crim. Proc. Ann. art. 21.24(b); see also Skillern v. State,
C. Discussion
Here, Brock was charged with committing an offense under section 36.06 of the Penal Code. More specifically, the indictment alleged that:
Terry Ben Brock, hereinafter styled Defendant, on or about the 21st day of October 2013, and' before the presentment of this indictment, in the County and State aforesaid, did-then, and there intentionally or knowingly threaten-to harm another, to-wit: Judge John Lee, by an unlawful act, to-wit: stating, in a threatening tone of voice and demeanor “I got something for you just waiting,” in retaliation for, on account of, or to prevent or delay the service of John Lee as a public servant, to- wit: Judge of the County Court at Law of Coryell County.
"Section 36.06, which is entitled, “Obstruction or Retaliation,” provides the following, in relevant párt:
[Sec. 36.06]
(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, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or
(2) to prevent or delay the service of another as a:
(A) public servant," witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime.
Tex. Penal Code ANN. § 36.06(a).
On appeal, Brock argues that the trial court erred in denying his motion to quash the indictment because subsections (a)(1) and (a)(2) of section 36.06 of the Penal Code constitute two separate and distinct offenses, and because the indictment alleges in one count that he violated both of the subsections. We disagree.
Central to our analysis is whether subsections (a)(1) and (a)(2) of section 36.06 of the Penal Code constitute two separate and distinct offenses. In support of his argument that they do, Brock relies on the Lindsey decision from the Thirteenth Court of Appeals. See generally Lindsey v, State, No. 13-09-00181-CR,
Second, we note that a close examination of the statute supports the conclusion that' retaliation does not require a showing of intent to inhibit the behavior of the target of the threat. Section 36.06(a) of the penal code defines two crimes: retaliation and obstruction. See Tex. Penal Code Ann. § 36.06(a)(1), (2). Both crimes require a showing that the defendant “intentionally or knowingly harm[ed] or threatened] to harm another by an unlawful act.” Id. Obstruction, described in subsection (a)(2), additionally requires a showing that the defendant intended “to prevent or delay the service of another” as a public servant, witness, informant, or reporter of a crime. Id. § 36.06(a)(2). Retaliation, on the other hand, contains no such element. See id. § 36.06(a)(1). Instead, the retaliation statute merely requires a showing that the defendant acted “in retaliation for or on account of the service or status of another” as a public servant, witness, informant, or reporter of a crime. Id. The Legislature, could have easily included, an “intent to inhibit” element in the definitionof retaliation — as it did in the definition of obstruction — but it chose not to, and it is not our province to add that element. See Tex. Gov’t Code Ann. § 312.005 (requiring us to give effect to the Legislature’s intent as expressed in the statute’s language).
Id.at *4, at **12-13 (Emphasis added).
For a number of reasons, we are not persuaded by Brock’s reliance on the Lindsey decision. First, we state the obvious: an unpublished opinion from a sister court does not have precedential value and is not binding on this Court. Furthermore, we believe that the analysis in Lindsey is incomplete with respect to construing section 36.06 of the Penal Code. It appears that, in analyzing section 36.06, the Lindsey Court engaged in a Blockburger analysis, which is an “elements” analysis that is “used to determine whether each of the offenses requires proof of an element that the other does not.”
The Bloekburger test is a useful tool for ascertaining legislative intent, but it is not the only tool. Other (nonexclusive) considerations relevant to determining whether the Legislature intended multiple punishments are: whether the offenses provisions are contained within the same statutory section, whether the offenses are phrased in the alternative, whether the offenses are named similarly, whether the offenses have common punishment ranges, whether the offenses have a common focus (i.e. whether the “gravamen” of the offense is the same) and whether that common focus tends to indicate a single instance of conduct, whether the elements that differ between the offenses can be considered the “same” under an imputed theory of liability which would result in the offenses being considered the same under Bloekburger (i.e. a liberalized Block-burger standard utilizing imputed elements), and whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different ....
Ervin v. State,
More recently, we have signaled that the “focus” or “gravamen” of a penal provision should be regarded as the “best” indicator when it comes to determining whether the Legislature intended to define more than one offense. The question in Huffman v. State, was whether
The common thread in all of these cases seems to be “focus.” We use grammar and we look to other factors bearing on whether1 different legal theories constitute the <same’ offense or ‘different’ offenses, but those tools seem useful mainly as an aid to determining focus. The focus or ‘gravamen’ of the offense seems to be one of the best indicators of the allowable unit of prosecution prescribed by the legislature. If the focus of the offense is the result — that is, the offense is a ‘result of conduct’ crime — then'different types of results are considered to be separate offensés, but different types of conduct are not. On the other hand, if the fochs of the offense is the conduct — that is, the offense is a ‘nature of conduct’ crime — then different types of conduct are considered to be different offenses.
Gonzales v. State,
Like Lindsey, this case requires us to construe section 36.06. Our primary objective when construing a statute is to give effect to the Legislature’s intent as expressed in the statute’s language. See Tex. Gov’t Code Ann. § 312.005 (West 2013); see also First Am. Title Ins. Co. v. Combs,
We first note that subsections (a)(1) and (a)(2) are both contained within the same section — section 36.06 of the Penal Code — rather than in different statutory sections., This is important because the Court of Criminal Appeals has noted in Garfias that the “elements” analysis is appropriate when the offenses in question come from different statutory sections, which is not.the .case here. See Garfias,
In addition, we believe that a plain reading of section 36.06 yields a conclusion that subsections (a)(1) and (a)(2) are merely alternative means of “intentionally or knowingly harm[ing] or threatening] to harm another by an unlawful act .... ” Tex. Penal Code Ann. § 36.06(a).
We also recognize that subsections (a)(1) and (a)(2) have common punishment ranges, and Texas courts have recognized “[ojbstruction or retaliation is a result-oriented offense.” Christmas v. State,
.Arid perhaps' most importantly, because a section 36.06 offense is a “result-oriented offense,” different types of conduct, which subsections (a)(1) and (a)(2) are, do'not constitute separate offenses. See Gonzales, 304 S.W.3d- at 848 (“ ‘If the focus of the offense is the result — that is, the offense is a ‘result of conduct’ crime — then different types of results are considered to be separate offenses, but different types of conduct are not.’ ” (quoting Huffman,
Based on the foregoing, we hold that subsections (a)(1) and (a)(2) of section 36.06 of the Penal. Code are alternative means of committing a section 36.06 offense. Therefore, the State was authorized to allege in a single count different means — namely, subsections (a)(1) and (a)(2) — for committing an offense under section 36.06. See Tex. Penal Code Ann. § 36.06; Cada v. State,
III. ExtRAneous-Offense Evidence
In his fourth issue, Brock asserts that the trial court abused its discretion in admitting evidence of extraneous offenses that was used to demonstrate Brock’s intent to commit the charged offense in this case. Brock contends that the admission of the extraneous-offense evidence violated Texas Rule of Evidence 403. See Tex.R. Evid. 403.
A. Facts
The record reflects that the State filed a notice of its intent to introduce evidence of Brock’s prior convictions for retaliation and stalking, as well as other extraneous acts that constitute retaliation and/or assault on a public servant. In response, Brock filed a motion in limine, seeking to prevent the State from introducing evidence concerning extraneous offenses and any of his prior convictions or violations of the law. The trial court ultimately ruled that the State could only offer evidence concerning a threat Brock made against Paul Franks.
During the questioning of Coryell County Sheriff Johnny Burks, the State sought to introduce a copy of a Facebook communication between Brock and Sheriff Burks. Brock objected based on the lack of authentication. The trial court overruled Brock’s objection. When the State again offered the Facebook message for admission into evidence, Brock requested a running objection. The trial court overruled Brock’s objection once again and admitted the exhibit. Brock excepted. ■
Thereafter, Sheriff Burks testified about the contents of the message he received firan Brock, which is as follows:
Maybe I’m wrong, but that sounds like just a bunch of bullshit. What the hell do you mean, not around anymore? Williams is all over the place. I’ve heard that I could find Franks if I wanted to, but I don’t want to, though, cuz [sic] if anybody was, he’d be the first to pay with his life. What damn difference should it make if . they still work for you or not? I’m sorry to bother you. I really don’t ever want to hear from you again. Shalom and blessings.
It is this evidence that forms the basis of Brock’s complaint in this issue.
B. Discussion
To preserve • error for appellate review, a complaining party must make a timely and specific objection. See Tex. R.App. P. 33.1(a)(1); Wilson v. State, 71 S,W.3d 346, 349 (Tex.Crim.App.2002). Texas courts have held that points of error on appeal must correspond or comport with objections and arguments, made at trial. Dixon v. State,
Despite the fact that his trial-court objection does not comport with his complaint on appeal, Brock argues that this issue is preserved because he raised a Rule 403 objection at a May 7, 2014 hearing conducted on his motion in limine. A review of the record shows that Brock did indeed raise a Rule 403 objection at the hearing. However, a “pretrial motion in limine certainly preserved no error. ‘For error to be preserved with regard to the subject matter of [a] motion in limine, it is absolutely necessary that an objection be made at the time when the subject is raised during the trial.’” Wilkerson v. State,
IV. The Teial CoüRt’s JURY INSTRUCTION
In his third issue, Brock contends that the trial court impermissibly granted the State a directed verdict on an element of the offense by instructing the jury that Judge Lee was a “public servant” under Texas law. Brock admits that he did not object to the trial court’s instruction at trial; however, he argues that the error is structural and that reversal is mandatory.
A. Facts
Here, the abstract portion of the jury charge stated the following, in pertinent part:
I.
A person commits the offense of retaliation if he intentionally or knowingly harms or threatens to harm another by an unlawful act either (1) in retaliation for or on account of the service or status of another as a public servant or (2) to prevent or delay the service of another as a public servant
II.
“Public servant” means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if he has not yet qualified for office or assumed his duties:
(A) an officer, employee, or agent of government;
(B) an- arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy; or
(C) an attorney at law or notary public when participating in the performance of a government function ...
You are instructed that a judge of a County Court at Law is a public servant.
The charge also provided instructions to the jury that: (1) “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offehse is proved beyond a reasonable doubt”; and (2) “The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.” See Olivas v. State,
B. Applicable Law
In reviewing a jury-charge issue, an appellate court’s'first duty is to determine whether error exists in the jury charge. Hutch v. State,
Article 36.14 of the Code of Criminal Procedure requires that the trial court deliver to the jury a “written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.” Tex.Code Grim. PROC. Ann. art. 36.14 (West 2007). “A charge that assumes the truth of a controverted issue is a comment on the weight of the evidence and is erroneous.” Whaley v.
C. Discussion
The application portion of the jury charge instructed that the jury could find Brock guilty of the charged offense if they found, beyond a reasonable doubt, that Brock “intentionally or knowingly threaten[ed] to harm another, to-wit: Judge John Lee, by an unlawful act, to-wit: stating in a threatening tone of voice: and demeanor “I got something for you just waiting,” in retaliation for, on account of, or to prevent or delay the service of John Lee as a public servant, to-wit: Judge of the County Court at Law of Coryell County _■” The trial court’s charge did not instruct the jury to presume'that John Lee was a public servant. Rather, the jury was free to decide whether the State had proven beyond a reasonable doubt, that John Lee was a County Court at Law judge for Coryell County. Furthermore, section -1.07(a)(41) of the Penal Code provides that an elected judge is a “[pjublic servant.” See Tex. Penal Code Ann. §. 1.07(a)(41) (West Supp.2014).
And to the extent that it can be argued that the complained-of instruction was erroneously included in the charge, we cannot say that Brock was egregiously harmed. This is true because Judge Lee’s status as a public servant was not contested at trial. In fact, Judge Lee testified
Moreover, because the purported error involves the jury charge and the trial process itself, we reject Brock’s contention that the purported error is structural and requires reversal without a consideration of harm. See Johnson, v. United States,
V. Sufficiency of the Evidence
In his first issue, Brock argues that the evidence supporting his conviction is insufficient because no actionable speech occurred in this matter, and because the evidence does not show that Judge Lee was prohibited or delayed from exercising his judicial function.
D. Applicable Law
■In Lucio v. State,
In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,443 U.S. 307 , 318-19,99 S.Ct. 2781 ,61 L.Ed.2d 560 (1979); Hooper v. State,214 S.W.3d 9 ,13 (Tex.Crim.App.2007). This “familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson,443 U.S. at 319 ,99 S.Ct. 2781 . “Each fact need notpoint directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13 .
Id.
Our review of “all of the evidence” includes evidence that was properly and improperly admitted. Conner v. State,
The sufficiency of the evidence is measured by reference to the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State,
E. Discussion
Brock was charged by indictment with committing an offense under section 36.06 of the Penal Code. Accordingly, the State was required to prove that Brock intentionally or knowingly harmed or threatened to harm Judge Lee by an unlawful act either: (1) in retaliation for, or on account of, his services as a public servant; ór (2) to prevent or delay the service of Judge Lee as a public servant. See Tex. Penal Code Ann. § 36.06; Lebleu v. State,
The central purpose of the statute is to encourage public servants to perform vital public duties without fear of retribution.’ Doyle v. State,
On appeal, Brock contends that his statement to Judge Lee cannot'be interpreted as an expression of an intent to harm or assault. As such, Brock alleges that his statement was not a “true threat” and, thus, was protected free speech under
Comments can be evaluated as threats based, not just on the language used, , but also the context -within which they are uttered, even veiled threats. Manemann v. State,
Whether a particular statement may properly be considered to be a threat is governed by an objective standard— whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates .the statement as a serious expression of intent to harm or assault. United States v. Orozco-Santillan,903 F.2d 1262 , 1265 (9th Cir.1990); United States v. Mitchell,812 F.2d 1250 , 1255-56 (9th Cir.1987). The test is whether a threat would justify apprehension by an ordinary hearer, not whether the threat communicated over the telephone caused a particular recipient to actually become apprehensive. State v. Weippert,183 Minn. 339 ,237 N.W. 1 (1975). Threats of physical harm need not be directly expressed, but may be contained in veiled statements nonetheless implying injury to the recipient when viewed' in all the circumstances. State v. McGinnis,243 N.W.2d 583 (Iowa 1976).
Id. at 337; see Orozco-Santillan,
In evaluating Brock’s statement, we focus on the precise threat required to support his conviction under section 36.06 of the Penal Code. See Tex Penal Code Ann. §■ 36.06. All the threat that is needed to support this conviction is for Brock to have threatened harm by an unlawful act. See id.; see also Meyer v. State,
The record reflects that Brock was upset with Judge Lee for not granting him a personal-recognizance bond in another matter. Judge Lee recalled that Brock was disruptive when that case was being tried before a jury. Brock glared at Judge Lee during the trial, and Judge Lee described Brock’s demeanor as follows: “His body posture ... shaking his head ... mumbling under his breath. From the very start, he was out to disrupt the process.” Brock continued his disruptive behavior until Judge Lee directly admonished him. Judge Lee testified to the following: “It had been going on for hours, I had had plenty of his childish behavior. I told him, You’re getting on my last nerve. I don’t want to see you sitting there shaking your head anymore.’ ” Judge Lee told Brock to sit up so that they could finish the trial. In response to Judge Lee’s admonishments, Brock gave a “mean look” and said, “Oh, I’ve got something for. you, just wait.” Based on his glare, demeanor, and posture, several courtroom observers, including Judge, Lee, perceived Brock’s statement as a threat. See Lebleu,
Based on the combined and cumulative force of all the evidence and testimony, we conclude that a reasonable person could interpret' the statemen Brock' made to Judge Lee as a threat to harm Judge Lee by an unlawful act, thoqgh it was more of an implied or veiled threat. See Manemann,
Viewing the evidence in the light most favorable to the verdict, we hold that a rational factfinder could have concluded that Brock threatened to harm Judge Lee by an unlawful act in retaliation for his actions as a public servant.
VI. Conclusion
Having overruled all of Brock’s issues on appeal, we affirm the judgment of the trial court.
Notes
. The Bloekburger test is usually used in the multiple-punishments or Double-Jeopardy context. See Garfias v, State,
The starting point of an "elements” analysis in the multiple-punishments context is the Bloekburger test, used to determine whether each of the offenses requires proof of an element that the other does not. In doing so, courts must focus on the elements alleged in the charging instrument — not on the offense as defined in the Penal Code. Under this so-called cognate-pleadings approach, double-jeopardy challenges can be made even against offenses that have different statutory elements, if the same facts required to convict are alleged in the indictment.
But as we indicated in our prior opinion, the Bloekburger test is only a starting point — it is a rule of statutory construction, not the exclusive indicator of a double-jeopardy violation. The Bloekburger test cannot allow two punishments for a single course of conduct when the Legislature intended to authorize only one.
Id. at 58-59.
. See Todd v. State,
, This is further conveyed by the title of the section — "Obstruction or Retaliation." At least one intermediate court has referred to án offense under section 36.06 as the singular offense of "[o]bstruction or retaliation,” suggesting subsections (a)(1) and (a)(2) are simply different ways to commit the same section 36,06 offense. See, e.g., Christmas v. State, 464 S.W,3d 832, 839,
. Section 1.07(a)(41) of the Penal Code del-fines a "[p]ublic servant” as:
[A]person elected, selected, appointed,, employed, or otherwise designated as one of the following, even if he has hot yet qualified for office or assumed his duties: ’
, (A) An officer, employee, or agent of government;
(B) A juror or grand juror; or(B) A juror or grand juror; or
(C) An arbitrator, referee, or other person who is authorized by law or private written agreement- to hear or determine a cause or controversy; or ,
(D) An attorney at law or notary public when participating in the performance of a governmental function; or
(E) A candidate for nomination or election to public office; or
(F) A person who is performing a governmental function under a claim of right although he is not legally qualified to do so.
Tex. Penal Code Ann. § 1.07(a)(41) (West Supp. 2014).
. Specifically, during final argument, Brock’s trial counsel stated:
First of all — let’s start with the witness, Judge Lee. We’re going to go through the road map bit by bit. Judge Lee — and I have the utmost respect for Judge Lee. He is a judge, and he deserves respect. He is a public servant, as that has been proven.
. As noted earlier, Brock's trial counsel did not dispute the fact that Judge Lee is a public servant,
Concurrence Opinion
concurring
I write separately only to address the complexity of the statute as it relates to whether the indictment was duplicitous; Issue Two.
Texas Penal Code section 36.06(a) uses the word “or” 12 times in the body of that
When the statute. is examined in the abstract, it seems to describe two discrete offenses: Retaliation in subsection (a)(1), and Obstruction in subsection (a)(2). When we then turn to the facts of the case as presented, there also seems to have been two theories of why the defendant said what he did to the Judge that most everyone present seemed to have viewed as a threat. But a threat to do what was never clarified. Some of the evidence supported the theory that the defendant was retaliating because the judge had failed to give him a bond without a no-driving restriction. Some of the evidence supported the theory that the defendant intended to cause a mistrial, under the State’s theory, obstruct the performance of a public servant. The problem with the “mistrial” theory is that the evidence showed the defendant only wanted to delay the resolution of his trial, not the service of any public servant in the performance of their job. And it does not appear that an effort to lengthen the time necessary to dispose of your own criminal proceeding is a violation of the statute under this theory because the “public servant” (the judge and all the other court participants) is already there doing his job and, thus,- is not “prevented or delayed” from doing so. In fact, .the defendant wants the public servant to do his job immediately and declare a mistrial, something that did happen in the driving under the influence trial, but not based upon the alleged threat. The judge was simply continuing to do that for which his public, services were required. This is somewhat like shooting at a. house.. The Court of Criminal Appeals has told us that you cannot do it from within the house. Reed v. State,
The question is whether the different possible reasons for making the alleged threat make them, different manner and means of committing the same crime, or whether retaliation is a different crime than obstruction. The problem, and confusion, is exacerbated in this proceeding. The jury was confused by the charge and the “or” that separated the finding of criminal liability for retaliation from criminal liability for obstruction. When confronted by a jury note to this effect, defense counsel was not surprised; but by then, it was beyond the ability of anyone to address the issue that some still did not see.
Moreover, this is not only a result-of-conduct crime. This crime, as arguably committed on the facts of this case, did not depend on whether the judge felt threatened or was actually harmed. The crime, if committed, was that the defendant threatened to harm a person by an unlawful act because of what they had done in their capacity as a public servant. Thus the crime, if committed, was a result-of-conduct, that is, did the conduct result in a threat of harm by an unlawful act, and eircumstanees-surrounding-conduct crime, that is, the threatened person’s status as a public servant and the threat made in retaliation for something done in that capacity, because there was no • suggestion (or evidence) that any public servant was actually harmed.
Because there was only one overt act alleged as a threat against one purported victim, and based on the entire statute as written, even though there must be about a thousand different ways to violate it, see Cada v. State,
For these reasons, I concur in the Court’s judgment.