HULTQUIST v. STATE (2025)

OPINION

A jury convicted appellant Chad Edward Hultquist on two counts of the felony offense of retaliation. See Tex. Penal Code § 36.06(a). He appeals from his conviction in a single issue, contending that the State did not present any evidence of his “retributive intent.” Because the offense as charged in today's case does not require a showing of retributive intent, we affirm.

Background

On July 4, 2022, appellant left a phone voicemail message (the “July 2022 Voicemail”) with the Bellville Police Department (“BPD”) in which he threatened to kill two Austin County assistant district attorneys, Benjamin Nystrom and Brandy Robinson. After identifying himself, appellant made numerous bizarre accusations, including that Nystrom and “Michael Jackson” had raped him. He referred to Nystrom as a prosecutor and said he is tired of Nystrom “bothering him” day in and day out. Although appellant did not threaten to kill Robinson directly, he threatened to kill Nystrom and then stated, “The same goes for you, Brandy Nicole Robinson.” He also mentioned a judge and a person named “Travis,” which was the Austin County District Attorney's name.

A grand jury indicted appellant on two counts of obstruction or retaliation, with a prior felony conviction as a punishment enhancement. Specifically, the indictment alleged that appellant “intentionally and knowingly” threatened to kill Nystrom (count 1) and Robinson (count 2) “in retaliation for or on account of” their status as assistant district attorneys. (Emphasis added.)

At appellant's jury trial, BPD Chief Jason Smalley testified that he was familiar with appellant; he had known him since he “began with the police department in 1999.” After listening to the July 2022 Voicemail,¹ the chief immediately reported the threats to the Austin County District Attorney's Office and Sheriff's Department because appellant threatened to kill Nystrom and Robinson at the courthouse. Chief Smalley regarded appellant's threats as “serious.”

Nystrom is familiar with appellant and has spoken with him on the phone “roughly a dozen” times. According to Nystrom, appellant is aware of his position as an assistant district attorney. When appellant calls, he often refers to Nystrom by his title. Robinson was Nystrom's immediate supervisor, and Travis Koehn was the Austin County District Attorney.² When Nystrom learned of the July 2022 Voicemail, he was concerned and alarmed because appellant threatened to bring a gun to the courthouse and shoot Nystrom and Robinson. Nystrom took appellant's threat seriously and was “frightened” and “worried”: “You can hear in the phone call his demeanor and his attitude. This wasn't a joke.”

Further, about two years before the July 2022 Voicemail, appellant threatened to kill Nystrom during a another phone call that Nystrom recorded (the “Nystrom Call”).³ Although the Nystrom Call was presented to the Attorney General's office (because the Austin County District Attorney's Office was recused), no charges were filed. Nystrom testified that charges were not filed because “the Attorney General's Office did not follow through.”

Robinson is the First Assistant District Attorney of Austin County and has known appellant since September 2005 through her position. Appellant has written “many, many letters,” all addressed to her as a prosecutor and sent to her office. He has also placed “many, many, many calls” to her, again all received at her office. Appellant “definitely knows” of her position with the county and he knows that she prosecutes criminal cases in Austin County. When she learned of the July 2022 Voicemail, Robinson was concerned about the message and believed appellant's threat. She was particularly concerned because appellant had called her twice a few days before and told her he was coming back to Austin County. During these calls, appellant told a man in the background that he wanted to pick up a chainsaw on his way to the Brazos River and I-10. Robinson testified that she was very concerned when she found out about the July 2022 Voicemail:

Because on the 3rd, I find out, hey, he's — he seems to be telling somebody to bring him back here to Austin County. It was the first time in years he was planning to come back, and he's telling them he's going to get a chainsaw. And I get to work on Monday — or Tuesday and find out that over the weekend, he had also threatened to kill us.”

Also, Robinson stated that she did not live far from the area appellant described in his earlier phone calls, so she was worried that appellant might have found her home address. On cross-examination, Robinson testified, “I am afraid of Chad Hultquist being in Austin County․ I am afraid for my personal safety when he is here in Austin County. I'm afraid for everybody in our office when he is here in Austin County․ I'm scared for other counties where he's at too.”

Appellant testified in his defense. He said that Nystrom tried to kill him many times. He said he called the BPD to report a crime, specifically to report that Nystrom and Robinson were “raping [him] in his granny's house.” Also, he claimed that a judge, Daniel Leedy, was raping him and that all three stole “about three to four chainsaws” from him. He testified that, when he called the BPD, he did not intend to harm or kill Nystrom or Robinson; instead, he was scared “half to death” because they were raping him and would not stop. Also, he stated that many of his calls to the courthouse were made while he was in a mental hospital under a doctor's care. Although appellant was initially found incompetent to stand trial, he acknowledged that he was subsequently determined to be competent. During trial, he claimed to be “competent 100 percent.”

The State re-called Robinson in rebuttal. She explained that she has been interacting with people with mental health issues as a prosecutor since she joined the office in 2005. She stated that people with mental health issues could be evaluated for competency or sanity. Robinson had interacted with appellant for over 18 years, and she was aware that he had been evaluated for competency and that, though previously declared incompetent, he had been restored to competency. Robinson testified, “Based on my repeated conversations with [appellant] and letters from [appellant], I think he has an excellent understanding of competency procedures and what they are used for and what benefit they can be to him.” She referenced letters he sent to the District Attorney's office saying that he “wants to be found incompetent to avoid staying in county jail.” She stated that she believes appellant uses incompetency procedures to his advantage. She also provided the example that once, after appellant called and threatened her, he called back and apologized, telling her he was incompetent when he made the threat and there was no need for a warrant to be issued because “he would just turn himself in to a mental hospital” to avoid going to jail. She also acknowledged that she had no formal education in psychology or psychiatry and stated that appellant “has been found incompetent and competent more than once[.]”

After hearing the evidence, a jury found appellant guilty on both counts charged in the indictment. Appellant pleaded true to the enhancement paragraph, and the jury assessed his punishment at twenty years’ confinement for each count. The trial court signed a judgment in accordance with the jury's verdict, stating that the sentences would run concurrently.

Analysis

In a single issue, appellant contends the State did not present any evidence of his “retributive intent,” which he claims is a requisite element for a charge of retaliation. Appellant claims that his threats to Nystrom and Robinson were not made in retaliation for any of their “official acts” and thus, the evidence is legally insufficient to support his conviction.

We review the legal sufficiency of the evidence under the familiar Jackson v. Virginia standard. See 443 U.S. 307, 318-19 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. 2013). Under that standard, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. We presume that the jury resolved conflicting evidence and inferences in favor of the verdict. See Braughton v. State, 569 S.W.3d 592, 607-08 (Tex. Crim. App. 2018); Criff v. State, 438 S.W.3d 134, 136-37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd).

We consider both direct and circumstantial evidence, as well as any reasonable inferences from the evidence. See Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016). In reviewing the evidence, we remain mindful that we defer to the jury's determinations of the witnesses’ credibility and the weight to be given their testimony, as the jury is the sole judge of those matters. Jackson, 443 U.S. at 326; see Braughton, 569 S.W.3d at 609.

We measure the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Braughton, 569 S.W.3d at 608. A person commits the felony offense of retaliation if he intentionally or knowingly harms or 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, witness, prospective witness, or informant. Tex. Penal Code § 36.06(a)(1) (emphasis added); see also Cada v. State, 334 S.W.3d 766, 770 (Tex. Crim. App. 2011). The Court of Criminal Appeals has noted that section 36.06(a)(1)(A) has eight different elements, several of which have distinct alternatives. Cada, 334 S.W.3d at 770. Those elements and the pertinent alternatives are these:

(1) The defendant

(2) a. intentionally [or]

b. knowingly

(3) a. harms [or]

b. threatens to harm

(4) another person

(5) by an unlawful act

(6) a. in retaliation for [or]

b. on account of

(7) a. the service of another [or]

b. the status of another

(8) as a

a. public servant ․

Id. (emphasis added). Only elements (6) and (7) above are at issue here.

Appellant relies on In re M.M.R., 932 S.W.2d 112, 115 (Tex. App.—El Paso 1996, no writ), and Riley v. State, 965 S.W.2d 1, 2 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd), to urge that “merely proving a defendant knowingly or intentionally threatened someone who is a public servant is insufficient to prove the crime of retaliation.” However, the law in effect at the time the appellants committed the charged offenses in those cases required that the offense be in retaliation for or on account of the service of another; it did not include the option that the offense could be in retaliation for or on account of the status of another. See Tex. Penal Code Ann. § 36.06 (Vernon 1994); see also M.M.R., 932 S.W.2d at 115 (“[Section] 36.06(a)(1) specifically requires that the harm or threatened harm be in retaliation for or on account of the service of another as a public servant, witness, informant, or reporter of crime.”); Riley, 965 S.W.2d at 1 (“Both of appellant's first two points of error focus on the sufficiency of the evidence to prove his skirmish with Freeman was in retaliation to Freeman's services as a public servant.”). Thus, these cases do not support appellant's challenge.

In 1997, the legislature expanded the retaliation offense to include harm or threats of harm by unlawful acts in retaliation for or on account of the complainant's status, in addition to the complainant's service. See Act of May 12, 1997, 75th Leg., R.S., ch. 239, § 1, 1997 Tex. Gen. Laws 1161, 1161, eff. Sept. 1, 1997, current version at Tex. Penal Code § 36.06. Accordingly, the elements of this offense now may be established by, as relevant here, proof that the defendant intentionally or knowingly threatened to harm another person by an unlawful act in retaliation for or on account of the status of another as a public servant. See Cada, 334 S.W.3d at 770; Tex. Penal Code § 36.06(a)(1). The indictment in today's case included allegations that appellant threatened the complainants in retaliation for or on account of their status as assistant district attorneys.

Viewing the evidence in the light most favorable to the jury's verdict against the hypothetically correct jury charge, the jury reasonably could have inferred that appellant threatened to kill Nystrom and Robinson on account of their status as public servants. Specifically, appellant threatened to kill Nystrom, referring to him repeatedly as a prosecutor. He threatened, with much profanity, that he was going to bring an “AKA” to the courthouse and kill Nystrom. He also acknowledged that he previously threatened to kill Nystrom at the Austin County courthouse. He specifically referenced Nystrom's status and identified Nystrom's place of employment. He also identified other public servants, such as Judge Leedy and Travis Koehn.

Similarly, appellant threatened to kill Robinson. Although he did not reference Robinson's title or employment, considering his statement in context—particularly in conjunction with his prior threats, as well as with the calls and letters he sent to her at her office—the jury reasonably could have concluded appellant threatened to kill her on account of her status as a public servant. There is no evidence that appellant knew these individuals in any capacity whatsoever outside their positions as public servants.

In short, the record contains sufficient evidence that appellant threatened to kill two assistant district attorneys, who appellant identified by title and only knew through their status as public officials, at the place where they performed their public duties—the courthouse. We therefore conclude that a rational fact finder could have found, beyond a reasonable doubt, that appellant committed the offenses of retaliation as charged in the indictment. Cf., e.g., Garcia v. State, No. 13-22-00303-CR, 2024 WL 193724, at *4 (Tex. App.—Corpus Christi-Edinburg Jan. 19, 2024, no pet.) (mem. op., not designated for publication); McCray v. State, No. 07-19-00430-CR, 2020 WL 5032838, at *2 (Tex. App.—Amarillo Aug. 25, 2020, no pet.) (mem. op., not designated for publication) (evidence of letter sent to judge threatening to kill her coupled with admission to investigators that defendant wrote letter and had a grudge against the judge provided legally sufficient evidence of threat to kill judge on account of her status); Peters v. State, Nos. 09-15-00166-CR, 09-15-00167-CR, 2016 WL 3136114, at *6 (Tex. App.—Beaumont June 1, 2016, pet. ref'd) (mem. op., not designated for publication) (statements made on YouTube videos provided support for jury's determination that defendant intentionally threatened to harm judge by unlawful act); Nandin v. State, 402 S.W.3d 404, 408 (Tex. App.—Austin 2013, pet. ref'd); Austin v. State, No. 10-12-00066-CR, 2013 WL 490000, at *2 (Tex. App.—Waco Feb. 7, 2013, pet. ref'd) (mem. op., not designated for publication) (affirming retaliation conviction where defendant left voice messages for a police officer that included a threatening rap song that defendant was going to “come at” the officer, he was going to “catch a murder case,” and “you're gonna get done, son”); Wright v. State, 979 S.W.2d 868, 868-69 (Tex. App.—Beaumont 1998, pet. ref'd).

We overrule appellant's sole issue.

Conclusion

We affirm the trial court's judgment.

FOOTNOTES

1.   A copy of the July 2022 Voicemail was admitted into evidence and played for the jury.

2.   The record reflects that appellant mentioned the name “Travis” in phone calls and letters.

3.   A recording of the Nystrom Call was admitted into evidence and played for the jury.

Kevin Jewell, Justice