May 26, 2023

Texas Courts of Appeals

Lewis v. State

No. 14-21-00372-CR


Is an indictment for a retaliation offense ineffective because the complainant was listed as a “witness” despite not testifying, instead of being listed as a “prospective witness”?   


Yes. The service or status of the complainant as a “witness” or “prospective witness” has different statutory elements for the offense of retaliation under Penal Code §36.06. The term “witness” as used in the retaliation statute means that the complainant “has already testified in an official proceeding.” The State’s indictment listed the complainant as a witness with no evidence that the witness had been threatened because of prior testimony in another case. Read opinion.

Dissent (Christopher, J):

“I disagree with the majority’s conclusion that the conviction in this case required some evidence that the mother had already testified—in the past tense—in this harassment case. The majority explains that even though there was ample evidence that the mother had testified as a witness in the prior protective-order case, there was no similar evidence that she had testified as a witness in this harassment case, and such evidence was necessary because the evidence plainly established that he defendants threat of harm were motivated by events in this harassment case, rather than by events in the prior protective-order case”. Read Dissent.


The majority and dissenting opinions argue over whether a person can have the present “status” of a witness even if the person has not previously testified in an official proceeding. The dissent makes a compelling argument that legislative changes have created deliberate statutory redundancies, such that there is no functional or meaningful distinction between a person with the status of a witness and a person designated as a prospective witness. The State will likely file a petition for discretionary review with Court of Criminal Appeals, and the CCA may very well be interested in resolving this debate.

Regardless, though, a very important takeaway from this case is that the State should not unnecessarily restrict the way it alleges an offense in the charging instrument when it doesn’t have to. The prosecution is bound by what is alleged, so if a pleading is so narrow or specific that it does not encompass the evidence developed at trial, you will have a variance/legal sufficiency problem on appeal that may result in an acquittal, like here. For instance, since Penal Code §36.06 allows for prosecution of retaliation against a person on account of the person’s service or status as “a public servant, witness, prospective witness, or informant[,]” plead as many of these descriptors as might plausibly fit the evidence you intend to present at the trial of a retaliation case.