Morrow v. State

• Decision Date: 23 June 1993
• Docket Number: No. 1180-90,1180-90
• Citation: Morrow v. State, 862 S.W.2d 612 (Tex. Crim. App. 1993)
• Parties: Edward MORROW, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 612

862 S.W.2d 612

Edward MORROW, Appellant, v. The STATE of Texas, Appellee.

No. 1180-90.

Court of Criminal Appeals of Texas En Banc.

June 23, 1993.

Rehearing Denied Sept. 29, 1993.

G. Timothy Boswell, Mineola, John W. Alexander, Winnsboro, for appellant.

Marcus D. Taylor, Dist. Atty., and Henry G. Whitley, Asst. Dist. Atty., Quitman, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellant was convicted of retaliation against a prospective witness. TEX.PENAL CODE ANN. § 36.06. Appellant's conviction was enhanced and the jury assessed punishment at fifteen years confinement in the Texas Department of Corrections and a fine of five thousand dollars. The court of appeals affirmed the judgment of the trial court. Morrow v. State, 862 S.W.2d 616 (Tex.App.--Tyler 1990). We granted appellant's petition for discretionary review to determine "whether the court of appeals erred in holding that the trial court properly entered a judgment of guilt[ ] despite the absence of probative evidence adduced at trial showing that the alleged victim was a prospective witness."

During an investigation of a broken skylight at the Wood County jail where appellant was incarcerated, inmate Johnny Glasscock informed authorities that appellant was responsible for the damage. Glasscock and appellant were thereafter placed in separation cells in the same area of the jail. Later that day, appellant was given hot water for coffee in the hallway outside of his cell. Appellant carried the hot water to Glasscock's cell and threw it into Glasscock's face, allegedly telling Glasscock, "that will teach you to snitch". Glasscock suffered third degree burns. Although no charges were pursued against appellant in connection with the broken skylight, the instant retaliation case arose as a consequence of appellant's conduct toward Glasscock.

At the time of the alleged offense, Penal Code section 36.06 provided as follows:

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, prospective witness, or informant.

TEX.PENAL CODE ANN. § 36.06. Pursuant to this section, the indictment alleged that appellant:

did then and there intentionally and knowingly harm JOHNNY GLASSCOCK by an unlawful act, to wit: by throwing a cup of hot water into the face of JOHNNY GLASSCOCK in retaliation for and on account of the service of said JOHNNY GLASSCOCK as a prospective witness[.]

The trial court's charge instructed the jury that a prospective witness is "a person who may testify in an official proceeding." The court of appeals held that the evidence was sufficient to support the jury's finding that Glasscock was a "prospective witness" as defined by the trial court's charge. The court of appeals reasoned that one who communicates information to the government may logically also have to testify in an official proceeding in connection with that information.

Appellant argues that a "prospective witness" must bear some relationship to an official proceeding that has actually been initiated; therefore, because charges were never filed against appellant for his alleged destruction of property, Glasscock was not a "prospective witness." Appellant argues that had the legislature intended "informant" and "prospective witness" to mean the same thing, they would not be listed separately in the retaliation provision. The State asserts that appellant is impermissibly asking this Court to substitute our definition of "prospective witness" in place of the definition given in the charge when appellant did not object to the charge at trial. Citing Benson v. State, 661 S.W.2d 708 (Tex.Crim.App.1982), the State points out that sufficiency of the evidence is measured by the charge and according to the definition of "prospective witness" as set forth in the charge, the evidence was sufficient to support the jury's verdict.

We agree with the State that appellant's claim is not so much a sufficiency problem as it is one of charge error. The charge defined "prospective witness" as "a person who may testify in an official proceeding". The definition did not require that an official proceeding be initiated. Under this definition, the evidence was sufficient to find that Glasscock was a prospective witness. Clearly, as the person who reported appellant as responsible for the destruction of property, Glasscock placed himself in the position of "a person who may testify in an official proceeding" regarding that offense. The evidence was sufficient under the charge given. The ultimate issue presented, then, is whether the court of appeals erred in failing to add to the definition of "prospective witness", as given in the charge, the requirement that an official proceeding be initiated. ¹

Neither this Court nor the legislature has defined "prospective witness" for purposes of the Penal Code's retaliation provision. Where statutory terms are not defined by the legislature, we ascribe to those terms their ordinary meaning. Vernon v. State, 841 S.W.2d 407 (Tex.Crim.App.1992). The term "prospective" is defined by Webster's Dictionary as "looking toward the future". WEBSTER'S NEW WORLD DICTIONARY 1141 (1986 ed.). Black's Law Dictionary defines "prospective" as "looking forward; contemplating the future." BLACK'S LAW DICTIONARY 1386 (4th ed.). This Court has defined the term "witness" as "one who has testified in an official proceeding." Jones v. State, 628 S.W.2d 51 (Tex.Crim.App.1980) (emphasis added). The trial court's definition of prospective witness as "a person who may testify in an official proceeding" constitutes a merging of the ordinary meaning of these two terms.

Appellant contends this interpretation does not square with the remainder of the retaliation provision or the subsequent amendment to the provision. The provision at the time of appellant's trial included in its list of victims "public servant, witness, prospective witness, or informant." This provision was amended in 1989 to add to that list "a person who has reported the occurrence of a crime." Appellant argues that "[b]y canceling the requirement that the State prove (at a minimum) that there was some actual "official proceeding" in which the "prospective witness" could have testified, the Court of Appeals makes a prospective witness indistinguishable from an informant or a person who reports the occurrence of a crime." We disagree. While there may be some overlap among the categories of persons listed, each category is nevertheless distinct. Moreover, to require the initiation of official proceedings in order for one to be...