Benson v. State

This is an appeal from a conviction for burglary. Punishment was assessed at nine years.

Initially appellant attacks the sufficiency of the evidence to sustain his conviction. The specific ground argued is that there is insufficient evidence of his “intentionally and knowingly entering a habitation without the effective consent of Virgie Harris, the owner, having the intent to commit the felony offense of retaliation, there being no evidence of such intent.” The State, in its brief, agrees with, and the record supports, appellant’s assessment of facts crucial to the disposition of this contention:

“The State wholeheartedly agrees with the following statement made by Appellant at the bottom of page two of his brief:

“ ‘The only evidence and the only contention of the State as to the intent of the Defendant is that he intended at the time of entry to coerce his ex-wife, Mary Benson, a private citizen, to drop assault charges against him in which she was the complainant.’ ”

The indictment in the instant case alleged that appellant “did then and there intentionally and knowingly enter a habitation without the effective consent of Virgie Harris, the owner, having intent to commit the felony offense of retaliation.” (Emphasis added.) See V.T.C.A., Penal Code Sec. 36.06(a). The jury was charged that a “person commits the 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 of another as a witness.” (Emphasis added.)

Hence the issue before us is whether one who intends “to coerce ... a private citizen to drop assault charges pending against him” possesses the required intent to commit the felony offense of retaliation. Stated more narrowly, is this “private citizen complainant,” who had not testified in any official proceeding, a “witness” as that term is used in the Retaliation statute, V.T. C.A., Penal Code Sec. 36.06?

We begin our analysis by noting that the legislature has not defined the word “witness” for our purposes even though commentators have noted the need for such a definition. See Searcy & Patterson, Practice Commentary, 4 V.T.C.A., Penal Code 22 (Vernon 1974) (term “witness” undefined but presumably means “only one who testifies before an official proceeding”). We also note that the term “witness” is used in only two offenses set out in Chapter 36, Bribery and Corrupt Influence, which is in Title 8, Offenses Against Public Administration, in the Texas Penal Code.

The first of these offenses in Title 8, Chapter 26, is V.T.C.A., Penal Code Sec. 36.05, “Tampering with Witnesses” which provides:

“(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:

“(1) to testify falsely;

“(2) to withhold any testimony, information, document, or thing;

“(3) to elude legal process summoning him to testify or supply evidence; or

“(4) to absent himself from an official proceeding to which he has been legally summoned.

“(b) A witness or prospective witness in an official proceeding commits an offense if he knowingly solicits, accepts, or agrees to accept any benefit on the representation or understanding that he will do any of the things specified in Subsection (a) of this section.

“(c) An offense under this section is a felony of the third degree.”

It is significant that Subsections (a) and (b) of this statute carefully proscribe certain conduct against “witnesses” and “prospective witnesses.” Hence the legislature has indicated that there is a difference between a “witness” and a “prospective witness.”

The other pertinent offense, Sec. 36.06, supra, set out in footnote 1, in contrast, proscribes certain conduct against “witnesses,” but not “prospective witnesses.”

In Ulmer v. State, 544 S.W.2d 414, 415, Tex.Cr.App., we held that the word “witness” applies “to one who testifies before a federal grand jury or federal official proceeding in the same manner as it would apply to one who testifies in a State court or before a State grand jury or other official State governmental agency.” (Emphasis added.) The concurring opinion reasoned that “witness” meant “one who testifies in an official proceeding.” Ulmer v. State, supra at 416. (Emphasis added.) Recently we held that “witness” indicated “one who has testified in an official proceeding.” Jones v. State, 628 S.W.2d 51 (1981).

In light of the fact that the legislature has, by statute, differentiated offenses against “witnesses” only and “witnesses and prospective witnesses,” and after a thorough consideration of our opinions in Ulmer and Jones, we hold that under Sec. 36.06(a), supra, the term “witness” means “one who has testified in an official proceeding,” and does not include a mere “prospective witness.”

Therefore, we must sustain appellant’s contention that the evidence adduced at trial was insufficient to show that he possessed the requisite intent to act “in retaliation for or on account of the services of another as a witness.” (Emphasis added.) The complainant, Mary Benson, simply was not, under the facts of this case, a witness before an official proceeding. The record clearly indicates that she was only a prospective witness against her ex-husband in a pending assault charge.

The judgment is reversed and we order the entry of a judgment of acquittal.

Before the court en banc.

. This statute, in its entirety, provides:

“(a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service of another as a public servant, witness, or informant.

“(b) For purposes of this section, ‘informant’ means a person who has communicated information to the government in connection with any governmental function.

“(c) An offense under this section is a felony of the third degree.”

. We also note that under the facts of this case, appellant possibly could have been prosecuted for burglary with intent to commit retaliation “for or on account of the service of another as a[n] ... informant.” Since an “informant” is one who “has communicated information to the government in connection with any governmental function,” see V.T.C.A., Penal Code Sec. 36.06(b) (emphasis added), one who has filed a criminal complaint and has necessarily communicated with the police and district attorney in connection with the complaint is an “informant” entitled to protection under Sec. 36.-06(a), supra. This theory, however, was not pursued in this case.