Retaliation Against a Witness In Texas
The offense of retaliation occurs when:
(a) a person . . . 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 . . . .Tex. Penal Code Ann. 36.06(a)(1) (West Supp. 2000).
The term "witness" is not defined by statute.
Jones v. State, 628 S.W.2d 51, 55 (Tex. Crim. App. 1980) held that "witness" meant one who had testified in an official proceeding. See Jones, 628 S.W.2d at 55.
The version of the statute in effect at the time protected only three categories of victims: a "public servant," a "witness," and an "informant." See Jones, 628 S.W.2d at 54.
The victim in Jones had been involved in an altercation with an estranged spouse who threatened her for reporting him to the police. She had not testified against him in any judicial proceeding before the threat. See id. at 53.
The indictment simply referred to her as a witness. See id. at 55.
Section 36.06 was amended after Jones to add categories for "prospective witness" and "person who has reported the occurrence of a crime."
In Morrow v. State, 862 S.W.2d 612, 615 (Tex. Crim. App. 1993), the court, while trying to define "prospective witness," discussed the policy behind the retaliation statute as being to encourage a certain class of citizens to perform vital public duties without fear of retribution. See id. at 615.
Among those duties are reporting criminal activities, testifying in official proceedings, or cooperating with the government in a criminal investigation. See id.
The court noted that the statute created several distinct categories of persons protected, even though there was some overlap.
The court said that, after reviewing the distinct categories of persons protected, it concluded that the legislature attempted to account for every category of person who might possess information regarding criminal activity which may lead to the apprehension of a criminal offender. See id.
The court then said: "We can conceive of no existing gap in the persons protected under section 36.06." Id.
"Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words." See Tex. Code Crim. Proc. Ann. art 21.17 (West 1989).