What Happens When a Witness or Victim Won’t Testify in a Texas Criminal Case?
Insights from a Galveston Criminal Lawyer
One of the most common questions I hear in my practice is:
“If the victim or witness doesn’t want to testify, will my case be dismissed?”
The short answer: Not necessarily.
While an uncooperative or missing witness can create serious challenges for the prosecution, it doesn’t automatically end a criminal case in Texas.
As a Galveston criminal lawyer who regularly defends clients in Galveston County, Harris County, and the greater Houston area, I’ve handled countless cases where the State’s key witness either refused to cooperate, disappeared, or signed an Affidavit of Non-Prosecution. Sometimes, that’s enough to get charges dismissed. Other times, prosecutors try to push forward — even without the victim’s help. Texas law has specific rules for when a witness is considered unavailable, often called ‘declarant’s unavailability,’ and this status can affect what evidence is admissible in court.
In this post, I’ll break down how Texas courts handle these situations, what legal tools the State has, and how an experienced defense attorney can use a missing witness to your advantage.
Why Witness and Victim Testimony Matters So Much
In Texas criminal cases — especially domestic violence, assault, sexual assault, and theft — the alleged victim is often the prosecution’s star witness. Their testimony can provide a direct link between the accused and the alleged crime. The court values a witness’s testimony because it is based on their personal knowledge of the events, which is generally more reliable than secondhand information.
Without it, prosecutors may be left with circumstantial or incomplete evidence.
For example:
- In a Galveston County assault case, the alleged victim claimed my client punched him during a bar fight. Without the victim’s testimony, the State had only partial surveillance footage with no clear view of the incident. The case was dismissed.
- In a Harris County domestic violence case, the victim signed an Affidavit of Non-Prosecution and refused to testify. Prosecutors still attempted to proceed using 911 call audio and police bodycam footage, but we successfully challenged its admissibility.
The Legal Definition of “To Testify” in Texas
In court, to testify means making a sworn statement under oath in front of a judge or jury. Testimony can happen in a trial, at a pretrial hearing, or during a deposition. However, only a lawful deposition—one conducted according to legal procedures and court rules—may be admissible as evidence if the witness is unavailable.
Witnesses have a legal duty to tell the truth. Failing to testify truthfully can result in perjury charges under Texas Penal Code § 37.02.
Victims, however, don’t control whether charges are filed or dismissed — prosecutors do. Even if a victim wants the case dropped, the State of Texas is technically the “complaining party” in criminal prosecutions.
Common Reasons Witnesses Refuse to Testify: Concerns About Criminal Liability
In my experience representing clients in Galveston County and Harris County, witnesses and victims may refuse to testify for many reasons:
- Personal relationships – The alleged victim may be a spouse, partner, family member, or close friend.
- Fear of retaliation – In small communities like Galveston or Friendswood, people may worry about social consequences.
- Immigration concerns – Undocumented witnesses sometimes avoid court for fear of drawing attention from federal authorities.
- Change of heart – Victims may decide the incident was a misunderstanding or not worth pursuing.
- Unavailability – Witnesses may move out of state, can’t be located, or simply ignore subpoenas.
- Then existing infirmity, physical illness, or mental illness – A witness may be unable to testify due to death, a then existing infirmity, physical illness, or mental illness.
- Privilege applies – For example, spousal or attorney-client privilege may prevent a witness from testifying.
The Power of an Affidavit of Non-Prosecution in Galveston and Harris County
An Affidavit of Non-Prosecution is a sworn statement from the alleged victim saying they do not want the case to continue.
While these affidavits are not binding on prosecutors, they can be powerful tools in plea negotiations and pretrial discussions — especially in counties without “no-drop” policies.
In Galveston County, prosecutors often take the victim’s wishes into account, particularly when there’s little other evidence.
In Harris County, certain domestic violence units have strict “no-drop” policies, meaning they may proceed regardless of the victim’s wishes.
Still, presenting a well-drafted, properly executed affidavit can help shift the case in your favor.
What Other Evidence Can the State Use?
When the victim won’t testify, prosecutors often try to build their case using alternative forms of evidence:
- Other eyewitnesses – Friends, neighbors, or bystanders may be called to testify.
- Physical evidence – DNA, fingerprints, weapons, or injury photos.
- Surveillance or bodycam video – Sometimes more compelling than live testimony.
- 911 calls – Under Texas Rule of Evidence 803(2) (“excited utterance”), these may be admissible.
- Defendant’s statements – Anything you said to police, on social media, or in texts can be used. When a witness is unavailable, the prosecution may seek to have a statement offered into evidence under specific legal exceptions, such as certain hearsay exceptions.
In one Harris County case I handled, the victim didn’t testify, but prosecutors used police bodycam footage showing visible injuries and my client’s apologetic statements at the scene. The jury acquitted after we showed the statements were taken in violation of Miranda rights.
Texas Rules of Evidence: Rule 804 and Reliable Hearsay Statements Exceptions
Texas Rule of Evidence 804 addresses situations where a witness is “unavailable” — for example, if they are deceased, cannot be found, or refuse to testify despite a court order. This rule provides exceptions to the hearsay rule, allowing certain statements to be admitted even if the declarant cannot testify in court.
Rule 804 provides several hearsay exceptions, including former testimony, dying declarations, statements against interest, and statements about personal or family history. A hearsay exception may apply when the declarant’s statement is made under circumstances such as imminent death (dying declarations), or when the statement is against the declarant’s proprietary, pecuniary, or civil or criminal liability interests. The court considers the declarant’s position, claim, and information, as well as corroborating circumstances, to determine the trustworthiness of the statement. Such statements may be admitted in a civil case or criminal case, and prior testimony may be admitted if the parties had a similar motive and opportunity to cross-examine in the current proceeding. Statements about personal or family history, or the family history of a person’s family, may be admissible even if the declarant lacks direct personal knowledge. The court must ensure that reasonable means have been used to secure the declarant’s attendance, and that a statement’s proponent has not wrongfully caused or procured the unavailability. If a privilege applies, or if the declarant is unavailable due to death, existing infirmity, or other reasons, these exceptions may be triggered.
In these cases, prosecutors may try to admit:
- Former testimony – Statements made under oath at a prior hearing.
- Statements against interest – Statements harmful to the declarant’s own legal position.
- Excited utterances – Like statements made during a 911 call.
A skilled Galveston criminal defense lawyer can challenge these hearsay exceptions — often successfully — to keep damaging evidence out.
Can the State Force a Witness to Testify?
Yes — prosecutors can issue a subpoena compelling a witness to appear. If the witness ignores it, the court may issue a writ of attachment, allowing law enforcement to detain them until they testify.
But in reality, prosecutors sometimes choose not to call a reluctant or hostile witness. A witness who contradicts the State’s version of events can be more harmful than helpful.
Preparing for Upcoming Events: What Defendants, Witnesses, and Victims Should Know
If you’re facing an upcoming court date, deposition, or legal proceeding in Galveston County, preparation is key—especially when it comes to understanding how hearsay statements and their exceptions might impact your case. Whether you’re a defendant, witness, or victim, knowing the court rules that govern what evidence can be admitted is essential for protecting your rights and navigating both civil and criminal liability issues.
On Galveston Island, with its vibrant community and iconic spots like East Beach, Stewart Beach, and Moody Gardens, legal cases often involve close-knit families and longstanding relationships. That’s why the rules around hearsay statements—out-of-court statements offered for the truth of the matter asserted—are so important. While the hearsay rule generally keeps these statements out of evidence, Texas law recognizes several important exceptions that can make reliable hearsay statements admissible in both civil and criminal cases.
Real-World Example: When a Missing Witness Sinks a Case
A few years ago, I represented a client in Galveston County accused of felony assault. The alleged victim was subpoenaed but left town and never appeared. Without their testimony, the State’s only evidence was an unclear 911 call and photos of minor bruising.
We filed a motion to dismiss, arguing that the remaining evidence couldn’t meet the “beyond a reasonable doubt” standard. The judge agreed, and the case was dismissed before trial.
How an Experienced Galveston Criminal Lawyer Can Help
If you’re facing charges in Galveston County, Harris County, or anywhere in the Houston area, and the victim or witness won’t testify, the right defense strategy can make all the difference.
At The Law Offices of Tad Nelson & Associates, we:
- Prepare and present Affidavits of Non-Prosecution effectively.
- Challenge hearsay evidence and improper use of Rule 804.
- Highlight gaps in the State’s case to create reasonable doubt.
- Negotiate with prosecutors to seek dismissal or reduced charges.
- Take cases to trial when the State’s evidence is weak.
Final Thoughts
A missing or uncooperative witness doesn’t guarantee your case will be dismissed — but it can significantly weaken the prosecution’s position. Whether the State decides to proceed will depend on the strength of its remaining evidence and the skill of your defense team.
If you’ve been charged with a crime in Galveston County, Harris County, or the Houston area and a key witness won’t cooperate, don’t leave your future to chance. Call The Law Offices of Tad Nelson & Associates today to schedule a confidential consultation.
We’ll use every tool available under Texas law to protect your rights, challenge the evidence, and fight for the best possible outcome.
For immediate help with a criminal matter, contact Tad Nelson today. We can talk more in a confidential consultation.