PD-0564-23 11/22/2023
1. “The Fourteenth Court misapplied the standard of review for legal sufficiency when it held that a rational jury could not infer that the appellant wished to murder his own mother based upon her past testimony in a protective order case.”
2. “The Fourteenth Court further misapplied the standard of review for legal sufficiency when it held that a person does not have a ‘status’ as a witness when that person is expected to give testimony in a then-pending proceeding. This contradicts long-standing legal usage of the term ‘witness.’”
Lewis got into an argument with his mother shortly after his release from prison. He threatened to kill her if she got him sent back. As a result of these initial threats, he was charged with harassment, and his mother obtained an emergency protective order, which included her testifying in the form of an affidavit. Seven months after the protective order was issued and before the harassment case went to trial, Lewis (on a recorded jail call) again threatened to kill his mother. He was angry at his mother about a variety of things and reiterated his belief that she was trying to send him back to prison. He was told his mother wasn’t going to “drop the charges” and would show up to testify against him at his trial. He complained about her having him “locked up” and that “she is going to go to testify against me and have me go to prison. A man can only take so much, dude, and I have just had it.” He said he had posted a bond, was ready to die, and would “handle business.” The State then charged him with retaliation, specifically by threatening to harm his mom on account of her service or status as a “witness”—as opposed to a “prospective witness.” Tex. Penal Code § 36.06. He was convicted by a jury.
On appeal, Lewis argued that the evidence was legally insufficient to support a conviction for retaliation against a “witness” because case law required that person to have already testified in an official proceeding and the harassment case had not yet gone to trial. See Jones v. State, 628 S.W.2d 51 (Tex. Crim. App. 1980). It rejected the argument that his threat was retaliation for his mom’s past testimony during the protective order proceeding because he never mentioned that testimony or the protective order and the temporal proximity of the case was not close enough to infer that it had formed part of his basis for the threat.
The State argues that the evidence is sufficient because juries are not restricted to a defendant’s explicit statements of why he does anything. It points out that Lewis filed a pro se motion two months before his recorded threat, trying to get the protective order quashed. This motion was closer in time and showed he was aware of her testimony in the protective order case. It contends seven months is far too short of a deadline for retaliatory conduct, explaining that retaliation sometimes occurs years after a witness has testified. It argues the protective-order basis for retaliation only appears insufficient because of how overwhelming the harassment-case basis is. It also argues that the caselaw interpreting “witness” to only mean past testimony has since been superseded by amendments to the retaliation statute. It notes that “witness” has long included those who are expected to offer testimony in a future proceeding. It was only limited in Jones because, at that time, the statute required retaliation be “on account of the service of another as a public servant, witness, or informant.” It reasoned that, in this context, “service… as a witness” (as opposed to being a witness) meant that the testimony had already occurred. But the statute was later amended to include “status” as well as “service” for witnesses. Because the State also alleged Lewis’s mother’s “status” as a “witness” in its indictment, the court of appeals should not have followed Jones.
