Benson v. State

Decision Date10 March 1982
Docket NumberNo. 60130,60130
Citation661 S.W.2d 708
PartiesSerlee BENSON, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

W.V. Dunnam, Jr., Waco, for appellant.

Felipe Reyna, Dist. Atty., and Randall L. Rogers, Asst. Dist. Atty., Waco, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P.J., and ROBERTS and ODOM, JJ.


ODOM, Judge.

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? 1

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. 2 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.



On original submission a unanimous panel of the Court held the evidence was insufficient to support the jury's verdict that appellant committed the offense of burglary of a habitation with intent to commit the "felony offense of retaliation," which was in turn authorized by the court's abstract charge upon a finding that such intended retaliation was "for or on account of the service of another as a witness." 1 The State conceded the evidence adduced did not support such a finding of fact by the jury.

On motion for rehearing, however, the State's Attorney contends the evidence was adequate to support the indictment allegation that appellant intended to commit the offense of "retaliation"--so long as the general term, "retaliation," is specifically narrowed to the alternative theory in which the intended victim is an "informant " as opposed to "witness." 2 Therefore, goes the argument, the error in the case is merely a matter of an erroneous charge which was drafted on a theory not supported by the evidence and, as such, presents only "trial error" which does not necessitate the entry of a judgment of acquittal.

A review of the record and the transcription of the court reporter's notes reveals that all of appellant's specially requested charges were denied, and all of his objections to the charge given were overruled. Thus, there is no indication that the instructions ultimately given to the jury were done so at the instance of appellant. Furthermore, the record reflects no objection was lodged by the State to the portion of the court's charge now complained of on rehearing; neither did the State request that portion of the charge be limited only to (or expanded to include) the theory of "retaliation" that party contends was the only one supported by the evidence. And finally, neither does the State argue the court's charge was fundamentally erroneous--and clearly, it was not. See Robinson v. State, 596 S.W.2d 130 (Tex.Cr.App.1980), and cf. Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977).

While the State today advances a provocative argument, it is apparent that the State also acquiesced at trial to the court's unnecessary limitation of the legal theory in issue, to one which was not established by that party's evidence. Thus, as a procedural matter, we believe the State's complaint is behindhand: the trial is over, the verdict in, the proverbial damage done.

We therefore hold that, as a matter of procedure, the State may not avoid the consequences of its lapse under the circumstances presented.

Because a verdict of "guilty" necessarily means the jury found evidence of that on which it was authorized to convict, the evidence is measured by the charge which perforce comprehends the indictment allegations. 3 It follows that if it does not conform to the charge, it is insufficient as a matter of law to support the only verdict authorized. 4 Even if we agreed with the State that the court's instruction constituted reversible error in a vacuum, it is now settled that, though finding reversible "trial error," the Federal Constitution compels us nevertheless to review the sufficiency of the evidence, if raised by the appellant. Thompson v. State, 621 S.W.2d 624 (Tex.Cr.App.1981); Penagraph v. State, 623 S.W.2d 341 (Tex.Cr.App.1981); Hooker v. State, 621 S.W.2d 597 (Tex.Cr.App.1981); Rains v. State, 604 S.W.2d 118 (Tex.Cr.App.1980); Swabado v. State, 597 S.W.2d 361 (Tex.Cr.App.1980). Ironic indeed is the observation that the State's Attorney by necessity has reviewed the evidence and found it deficient, in order to raise his contention that the charge contained error at all; yet we are nevertheless asked to ignore that established deficiency!

Under the court's charge, the only verdict authorized in view of the evidence was "not guilty." Upon scrutiny the State's contention on rehearing is tantamount to an argument that, had the jury returned the...

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