Brock v. State (495 S.W.3d 1, 2016)

OPINION

AL SCOGGINS, Justice

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 attempt to qualify his earlier statement did not change Judge Lee’s belief that the original statement was a threat.

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.”

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. Moff 154 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.”).

297 S.W.3d 260, 267 (Tex.Crim.App.2009).

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, 658 S.W.2d 818, 819 (Tex.App. — Fort Worth 1983, no pet.); see Callins v. State, 780 S.W.2d 176, 183 n. 12 (Tex.Crim.App. 1986). “But since .each ‘count’ alleges a single offense, an indictment cannot authorize more convictions than there are counts.” Martinez v. State, 225 S.W.3d 550, 554 (Tex.Crim.App.2007) (“Permitting more convictions than authorized by the indictment implicates a defendant’s due-process right to notice.”).

■ That said, an indictment may allege different methods of committing the same’ offense. See Martin v. State, 95 Tex.Crim. 401, 402-03, 254 S.W. 971 (Tex. Crim.App.1923); Renfro v. State, 827 S.W.2d 532, 535 (Tex.App. — Houston [1st Dist.] 1992, pet. ref'd); see also Phillip v. State, No. 14-94-00370-CR, 1998 WL 148098, at *3, 1998 Tex.App. LEXIS 1984, at *8 (Tex.App. — Houston [14th Dist.] Apr. 2, 1998, no pet.) (not designated for publication). Furthermore, alternate pleadings of different methods of committing an offense may be charged in a single indictment. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991).

“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, 890 S.W.2d 849, 872 (Tex.App. — Austin 1994, pet. ref'd); Gahl v. State, 721 S.W.2d 888, 895 (Tex.App. — Dallas 1986, pet. ref'd). The rule against duplicitous indictments is based on the proposition that a defendant must receive fair notice of the charge against which he must defend. Galvan v. State, 699 S.W.2d 663, 666 (Tex.App.— Austin 1985, pet. ref'd).

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, 2011 WL 2739454, 2011 Tex.App. LEXIS 5388 (Tex. App. — Corpus Christi July 14, 2011; no pet.) (mem. op.-, not designated for publication). In affirming a retaliation conviction, the Lindsey Court stated that:

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 definition of 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.” Garfias v. State, 424 S.W.3d 54, 58-59 (Tex. Crim.App.2014) (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Bigon v. State, 252 S.W.3d 360, 369 (Tex.Crim.App.2008)). However, the Court of Criminal Appeals has stated that “the Bloekburger test is only a starting point” for construing a statute. Id. at 59. More specifically,

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, 991 S.W.2d 804, 814 (Tex. Crim.App.1999).

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 Legislature intended to create more than one offense for jury-unanimity purposes. Observing that double jeopardy and jury-unanimity issues constitute “closely intertwined strands of our jurisprudence!],]” we surveyed a number of our previous decisions from both strands, including Vick, and concluded:

The common thread in all of these cases seems to be “focus.” We use grammar and we look to other factors bearing on whether different legal theories constitute the