Cada v. State

Decision Date09 February 2011
Docket NumberNo. PD–0754–10.,PD–0754–10.
Citation334 S.W.3d 766
PartiesFrankie Lee CADA, Appellant,v.The STATE of Texas.
CourtTexas Court of Criminal Appeals

OPINION TEXT STARTS HERE

James B. Johnston, Hereford, for Appellant.Tifanee Baker, Asst. D.A., Plainview, Jeffrey L. Van Horn, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the unanimous Court.

We granted review of this retaliation case to determine whether a variance between the indictment allegation of one statutory element—the description of the complainant as “a witness”—is material when the proof shows that the complainant was either a “prospective witness” or “an informant”—two different statutory elements.1 The court of appeals decided that this variance was immaterial and the evidence therefore legally sufficient to support appellant's conviction of retaliation.2 We hold that a variance between the pleading of one statutory element (“a witness”) and proof of a different statutory element (“a prospective witness” or “an informant”) is material under Gollihar.3 Therefore, the evidence was legally insufficient to support appellant's conviction for retaliation as the offense was pled.

I.

Appellant was charged with the third-degree felony of retaliation for “intentionally and knowingly threaten[ing] to harm another, to-wit: Arthur Finch, by an unlawful act, to-wit, assault, in retaliation for or on account of the service of the said Arthur Finch as a witness.”

At trial, Arthur Finch testified that he works full-time as a jailer at the Hale County Sheriff's Office, but he also works part time at the local Allsup's convenience store. He was on the graveyard shift at Allsup's when, close to 2:00 a.m., he got worried because a car had been parked near the store for about ten to fifteen minutes, but no one had come inside. Mr. Finch said that he walked outside to check and saw somebody moving around inside the car, “so I got a little bit nervous and everything, so I called the police thinking, hopefully, these guys aren't going to try to rob me.”

The police arrived, and Mr. Finch saw them talk to the people in the car. Then everyone left. He couldn't see the people in the car and didn't recognize anyone.

About twenty minutes later, the phone at Allsup's rang. When Mr. Finch picked it up, he heard a voice saying, [H]ey, you know man, you f___ed up. You know my wife—you got my wife arrested and you didn't need to call the cops.” Then the caller said that he was Frank Lee Cada and told Mr. Finch, [Y]ou're going to pay.” Mr. Finch explained that he had nothing to do with Mrs. Cada's arrest, he had just called the police for his own safety. But Mr. Finch was concerned enough about the caller that he phoned the police again to report the incident.

Ten minutes later, Mr. Finch got another phone call. The caller did not identify himself, but Mr. Finch recognized the voice as being that of the person who had made the earlier call. Appellant said, [H]ey, I am behind the store and I am going to get you.” Mr. Finch asked appellant to come to the front and talk with him, but appellant responded, [Y]ou know you're going to pay.” Appellant then said that he was going to get back at Mr. Finch's family since appellant's wife went to jail because Mr. Finch had called the cops.

Mr. Finch then pushed the Allsup's “panic button” to summon the police. Officers arrived, searched around the store, but did not find anyone. They also went to Mr. Finch's home to check on his family's safety. Mr. Finch felt threatened by appellant's phone calls and was worried that “if he is going to come in, if he has a weapon I was—I am stuck right here in this one spot.”

Officer Ward, a Plainview policeman, testified that he and two other officers were dispatched to Allsup's that night at about 1:45 a.m. to check on a “suspicious vehicle.” He arrived and found a blue Honda Accord parked near the store. There were five people in the car—appellant, his wife, Adam Cisneros, and two children, ages seven and twelve. After Officer Ward identified them all, he “ran them through dispatch to check for any possible warrants.” Appellant's wife, Josie, had an outstanding warrant, so she was placed under arrest. Appellant, sitting in the passenger's seat, became angry and “began removing his jacket, popping his knuckles and his neck and stating to the driver, ‘Adam, there's only three of them. We can take them.’ He wanted to know why the officers were called and why we were messing with him.” Officer Ward explained that the Allsup's clerk had called because he was concerned about the late hour and where the car was parked because of recent robberies. When the clerk came outside, appellant began yelling and pointing his finger at him. Another officer was so concerned about appellant's anger that he took out his Taser, but it was not necessary to use it.

Officer Ward received two further calls from Allsup's that night—the first at 2:12 a.m. and the second, a panic alarm, at 2:24. Officer Ward again responded, found Mr. Finch “extremely shaken and emotionally upset,” so he searched for appellant, but did not find him. After the State rested, appellant moved for a directed verdict because there was no evidence that appellant threatened to harm Mr. Finch because of his service as a witness. After some discussion, the trial judge denied that motion.

Appellant then testified. He said that he had previously been convicted of burglary, terroristic threat, and resisting arrest. He testified that he and his family picked up his cousin, Adam Cisneros, that night, and then they all went to Allsup's where they sat in the car rolling pennies to buy some snacks. When the police arrived, the officers asked for everyone's names and then arrested his wife on a motion-to-revoke-probation warrant stemming from a misdemeanor hot-check case. Appellant admitted that he was mad when he phoned Mr. Finch and called him “a punk m____ f___” and told him he was “a sorry person,” but he did not know that Mr. Finch had been a witness to anything. He said that he was sorry for what happened that night, but he did not think it was suspicious for him to park his car at Allsup's and sit in it for fifteen minutes.

In both opening and closing argument, defense counsel contended that appellant was guilty of telephone harassment and disorderly conduct, but that he did not commit retaliation because Mr. Finch had not been a witness to anything. The State argued that appellant was guilty of retaliation: He threatened him because Arthur Finch called the police. That's why he threatened him. Because Arthur Finch called the police.”

The jury charge tracked the indictment, requiring the jury to find that appellant threatened to harm Mr. Finch because of his service as a witness before it could convict for retaliation. During their deliberations, the jury sent out a note, asking for the definition of the word “witness,” but the judge said that there is no statutory definition of that term, so he told the jury to consider only the instructions that had already been given. The jury found appellant guilty of retaliation and assessed his punishment at three years in prison.

On appeal, appellant argued, inter alia, that the evidence was legally insufficient to support his conviction for retaliation against a witness because Mr. Finch never testified or provided any “service” in any proceeding as a “witness.” He relied on Jones v. State,4 in which this Court held that the statutory term “witness” in the retaliation statute means “one who has testified in an official proceeding.” 5 The court of appeals noted Jones, but held that use of the word “witness” was an immaterial variance because it was “not a variance in the manner and means of committing the crime of retaliation.” 6 This variance concerned the statutory status of the protected person, and the court of appeals had previously held that “the variance between the allegation of one classification of protected person for the victim and the proof of a different classification of protected person was simply irrelevant.” 7 The court of appeals concluded that Mr. Finch was “a prospective witness,” the evidence was sufficient to prove that status, and therefore the evidence was legally sufficient to support his conviction for retaliation.8

II.
A. Persons Protected Under the Retaliation Statute.

A person commits the felony offense of retaliation if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for the service or status of another as a public servant, witness, prospective witness, or informant.9 The “service” or “status” of the complainant as a “public servant,” “witness,” “prospective witness” or “informant” are all differing elements of the underlying offense.10 Indeed, the retaliation statute is a good example of the “Chinese Menu” style of setting out the elements of a penal offense. Section 36.06(a)(1)(A) of the retaliation statute contains eight different elements, but several of those elements include distinct alternatives, which may or may not be included in a particular indictment and jury charge. Those elements and alternative elements are:

(1) The Defendant

(2) a. intentionally [or]b. knowingly

(3) a. harms [or]b. threatens to harm

(4) another person

(5) by an unlawful act

(6) a. in retaliation for [or]b. on account of

(7) a. the service of another [or]b. the status of another

(8) as aa. public servantb. witnessc. prospective witness [or]d. informant.11

The indictment and jury charge must contain at least one item from each numbered element, but it may contain more than one alternative element (e.g., the indictment might list “a public servant, witness, prospective witness, or informant” 12). It is well established that the State may plead in the conjunctive and charge in the disjunctive.13 Thus an indictment might contain allegations that the defendant retaliated against the complainant because he was “a public servant, witness,...

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