Threatening a Witness in a Criminal Trial

If you are accused of a criminal offense in Texas, the last thing you should ever do is try and influence any of the potential witnesses against you. Acts such as bribery, coercion, and making threats against a witness or potential witness are all serious felonies under Texas law. This means that even if you are acquitted of the original allegation, you could still be tried, convicted, and sent to prison for interfering with the government’s witnesses.

Houston Court Tosses Retaliation Conviction Because State Failed to Prove Its Case

At the same time, the government has the same burden of proof when accusing someone of interfering with a witness as it does any other crime. The state must prove every element of its case beyond a reasonable doubt. And the evidence presented must match the offense alleged in the indictment.

A recent decision from the Texas 14th District Court of Appeals here in Houston, Lewis v. State, is a case in point. Here, the state tried a defendant on allegations of threatening to kill a witness. While the jury found the defendant guilty, the Court of Appeals reversed and entered an acquittal.

Here is what happened. In April 2019, a grand jury indicted the defendant on a charge of criminal harassment. This is a misdemeanor offense. Specifically, the indictment alleged that the defendant harassed his mother by sending her a series of text messages.

The defendant was released on bond pending trial but later re-arrested and placed in the Harris County Jail. According to prosecutors, while the defendant was in jail he called his ex-wife. Keep in mind, unless an inmate is speaking to their attorney, their outside calls are subject to recording by law enforcement. Here, jail officials recorded the call, during which the defendant allegedly said that when he got out of jail, he was “gonna kill that b—-h,” referring to his mother. The defendant went on to acknowledge he knew the call was being recorded but that he didn’t “give a f–k what these prosecutors think about that.”

Shortly after this phone call took place, a Harris County grand jury issued a second indictment against the defendant for violating Section 36.06 of the Texas Penal Code. This section defines the crime of “obstruction or retaliation.” A person violates this section if they “intentionally or knowingly harm[] or threaten[] to harm another by an unlawful act…in retaliation for or on account of the service of a status or another as a…witness.” Section 36.06 also makes it an offense to harm or threaten a “potential witness.” But the defendant’s indictment alleged that he threatened to kill a “witness,” i.e., his mother.

At the defendant’s retaliation trial, the defendant’s mother testified that she never testified against her son in any official proceeding on the original harassment charge. But after learning of the defendant’s threat, it did “make her think twice” about offering such testimony.

After the state rested its case, the defendant moved for an acquittal. The defense argued the evidence only proved the defendant’s mother was a “potential witness” against him in the harassment case. Yet the indictment specified she was a “witness.” The state acknowledged the discrepancy but then asked the court for permission to reopen its case. The judge allowed it. The prosecution then recalled the defendant’s mother to the stand. She testified that while she never testified against the defendant in any criminal trial regarding the alleged harassment, she did appear in court to apply for a protective order against her son’s alleged family (domestic) violence.

The jury found the defendant guilty of felony retaliation. The judge sentenced the defendant to eight years in prison. On appeal, the defendant renewed his argument that the evidence was insufficient to prove he committed retaliation against a “witness.”

The 14th District agreed. The appellate court noted the jailhouse phone call occurred several months after his mother sought the protective order. So it was unlikely he made the threat in response to her serving as a “witness” against him in that proceeding. Rather, the evidence showed the defendant was angry because his bond had been revoked and he was sitting in jail awaiting trial on the harassment charge, where his mother was a “potential” witness. The state therefore did not prove–beyond a reasonable doubt–that the defendant had committed retaliation against a witness against him in the harassment case.

Contact Galveston Criminal Defense Lawyer Tad Nelson Today

Obviously, you should never threaten to kill anyone, especially when you know that the police are listening. If you are facing charges that you believe are meritless, your best course of action is to keep your mouth shut and call an experienced League City criminal defense attorney who can advise you of your rights and defend your interests in court. Contact the Law Offices of Tad Nelson & Associates today to schedule a free consultation.