Cada v. State

In Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011), the Court held that a variance between the indictment and the proof was material, requiring an acquittal, in a prosecution for retaliation under penal code section 36.06. Id. Section 36.06 provides in pertinent part that a person commits retaliation by (1) harming or threatening to harm another (2) in retaliation for or on account of (3) the other person's service or status as a "public servant, witness, prospective witness, or informant" or as a "person who has reported or who the actor knows intends to report the occurrence of a crime." Id. (citing Tex. Penal Code Ann. 36.06(a)(1) (West, Westlaw through 2013 3d C.S.)). In that case, the indictment alleged that Cada threatened to harm Arthur Finch "in retaliation for or on account of the service of the said Arthur Finch as a witness." Id. at 768. However, there was no evidence at trial establishing that Finch provided any service as a "witness"; instead, the evidence showed that Finch was merely an informant. Id. at 774-75. The Amarillo court of appeals held that "this was an immaterial mistake or variance" because (1) the evidence was sufficient to show that Finch was a "prospective witness" and (2) the appellant "never contended that the variance at issue resulted in an inability to adequately mount a defense." Id. at 775. The court of criminal appeals disagreed. First, it found no evidence that the appellant retaliated against Finch because of his status as a "prospective witness." Id. Second, it noted: "even though there may be some overlap and considerable commonality between the various statutory categories of protected persons under the retaliation statute, they are distinct and separate statutory elements of the offense. Under Jackson, the State must prove the statutory elements that it has chosen to allege, not some other alternative statutory elements that it did not allege. The variance construct of Gollihar and Fuller simply does not override the constitutional due-process requirement that the State prove, beyond a reasonable doubt, every statutory element of the offense that it has alleged." Id. The Court also observed: "Instead of pleading the correct element of "informant," or pleading several of the statutory alternatives ("witness, prospective witness, or informant" or "person who has reported or who the actor knows intends to report the occurrence of a crime") and then including only those for which there was some evidence given to the jury for its consideration, the State alleged a single element for which there was no evidence." Id. at 775.