Marras v. State

CLINTON, Judge,

concurring.

In Boozer v. State, 717 S.W.2d 608 (Tex.Cr.App.1984, 1986), dissenting to denial of State’s motion for leave to file motion for rehearing, Presiding Judge Onion wrote an opinion in which three other Judges joined. *409At the end he opined that “the right result as reached in Benson on original submission ...Boozer, supra, at 621, n. 3. The “result” of the panel decision on original submission in Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1982): “The judgment is reversed and we order entry of a judgment of acquittal.” Id., at 711. Let us then revisit Benson.

The offense alleged is burglary with “intent to commit the felony offense of retaliation;” the jury was instructed that a person commits the offense of retaliation “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 WITNESS.” 1 On direct appeal the sole ground presented and decided by the Court panel is sufficiency of evidence to support a verdict of guilty. The parties agreed on essential facts of the matter, viz:

“The only evidence and the only contention by the State as to the intent of the Defendant is that he intended at the time of entry to coerce his ex-wife, Mary Benson, a private citizen, to drop assault charges against him in which she was the complainant.”

Writing for a unanimous panel, Judge Odom framed the problem, viz:

“Hence the issue before us is whether one who intends ‘to coerce ... a private citizen to drop assault charges pending against him’ possesses the required intent to commit the felony offense of retaliation. Stated more narrowly, is this ‘private citizen complainant,’ who has not testified in any official proceeding, a ‘witness’ as that term is used in the Retaliation statute, Y.T.C.A., Penal Code, Sec. 36.06?”

Id., at 710.

Noting that the Legislature has not defined “witness,” and upon analyzing germane related statutes and two prior decisions of the Court [Ulmer v. State, 544 S.W.2d 414 (Tex.Cr.App.1976), and Jones v. State, 628 S.W.2d 51 (Tex.Cr.App.1981) ], the Court panel held that “under Sec. 36.-06(a), supra, the term ‘witness’ means “one who has testified in an official proceeding,” and does not include a mere ‘prospective witness.’ ” Id., at 710-711 (original emphasis by Judge Odom).

Then, the Court concluded:

“Therefore, we must sustain appellant’s contention that evidence adduced at trial was insufficient to show accused possessed the requisite intent to act ‘in retaliation for or on account of the services of another as a witness.’ (Emphasis added.) The complainant, Mary Benson, simply was not, under the facts of this case a witness before an official proceeding, [footnote 2 omitted] The record clearly indicates that she was only a prospective witness against her ex-husband in a pending assault charge.”

Id., at 711.

Thus the decision on original submission turned solely on the circumstance that in its charge the court went beyond indictment allegations and instructed the jury in terms of retaliation on account of service as “a witness.” Measuring it by the charge, the Court found evidence to be insufficient.2

The ultimate result on original submission in Benson is the acquittal ordered by the Court panel, and there is no basis for ordering it other than a judicial determination that the requisite implicit finding by the jury that intent of accused was to commit retaliation against Mary Benson on account of her service as a witness was not supported by sufficient evidence. When the panel opinion noted that the alternate theory of “service as an informant” had not been “pursued,” it could only mean that the charge had not instructed the jury in that regard.

The opinion stands unerringly for the proposition that sufficiency of evidence to *410support a verdict of guilt must be measured by that authority to find guilt which is bestowed on the jury by a charge of the court. On State’s motion for rehearing by a wide majority the Court elaborated on that proposition to conclude “the disposition of this cause made on original submission was correct,” Benson, supra, at 712.3

Though he is among those Judges who joined Presiding Judge Onion in acknowledging the right result was reached in Benson on original submission, Judge Davis now dissents here, primarily invoking a enigmatic statement contained in his opinion on an unauthorized State’s second motion for rehearing in Benson, viz:

“We hold that when a charge is correct for the theory of the case presented we review the sufficiency of the evidence in a light most favorable to the verdict by comparing the evidence to the indictment as incorporated into the charge.”

661 S.W.2d, at 715 (latter emphasis by Judge Davis).4

*411With those observations I join the opinion of the Court sustaining point of error nine and otherwise join the judgment of the Court.

. All emphasis is mine throughout unless otherwise noted.

. In its note 2 the Court observed that under the facts appellant "possibly” could have been prosecuted for burglary as alleged in the indictment on the theory that service of Mary Benson was as "an informant" rather than "a witness," but that theory "was not pursued in this case.”

. After noting that the State failed to lodge any objection to the court’s charge or to request the critical part of the charge be amended to embrace the theory of "retaliation" that party now contends was “the only one supported by the evidence,” and thus "acquiesced at trial to the court’s unnecessary limitation of the legal theory in issue, to one which was not established by that party’s evidence,” and holding that the State "may not avoid the consequences of its lapse under the circumstances presented,” the Court restated the rule applied by the Court panel on original submission, viz:

“Because a verdict of 'guilty’ necessarily means the jury has found evidence of that on which it was authorized to convict, the evidence is measured by the charge which perforce comprehends the indictment allegations, [footnote omitted]. It follows that if it does not conform to the charge, it is insufficient as a matter of law to support the only verdict authorized.”

Ibid. (Original emphasis by the Court). We also found that given the court’s charge, “the only verdict authorized in view of the evidence was ‘not guilty,’” and that, nevertheless, the State was now seeking "an opportunity to correct the omission in the trial court’s charge upon a retrial.” We concluded, however, that "the State may not do on motion for rehearing what the Constitution and laws of this State prohibit it from doing upon the return of a ‘not guilty1 verdict." Ibid.

. Recently in Fain v. State, 725 S.W.2d 200 (Tex. Cr.App.1986), I confessed to an uncertainty as to intendment of the above language relied on by the majority in Fain, id., at 203. It has not been clarified by Judge Davis in his dissent today.

How may "theory of the case presented” be identified? Issues in a criminal prosecution, as in any litigation in a court of law, are those tendered by pleadings and raised by evidence. In Benson, the indictment is mute as to any “service of another as a public servant, witness, or informant;” because the statute requires a kind of such service, inferentially it may be said that allegations in the indictment tendered an issue of whether Mary Benson rendered service in one or the other capacity. However, the evidence did not raise an issue that her capacity was that of "one who has testified in an official proceeding;” rather, under the facts accused “possibly" could have been prosecuted on the theory that Mary Benson rendered service as an informant, but was not.

So what theory of the case was presented? On original submission it was decided, and also on rehearing we held as a matter of law, the evidence did not present the theory upon which the trial court instructed the jury. It follows, therefore, contrary to the opinion on second motion for rehearing, that the charge was not correct for the theory of the case insofar as it authorized the jury to find Mary Benson was a witness, and on that basis to convict her exhus-band.

Judge Davis stated, "The charge together with the proof and the indictment reflects the State’s theory of the offense.” Benson, supra, at 715. But then he opined, "It appeared to all intents and purposes that the State’s theory of retaliation involved a 'witness’." However, any such appearance flies in the face of the evidence and law that should have been taken into account by the trial court in drafting its charge. Indeed, on original submission the Court panel suggested that "possibly” the only "correct” theory was that she was an informant.

In its first motion for rehearing the State seized on that suggestion and sought to make that the theory, contending evidence was adequate to support the indictment allegation of intent to commit the offense of retaliation, so long as the general term is narrowed to the alternative theory that the intended victim is an "informant” rather than a "witness;” thus, it argued the charge was erroneous and therefore constituted only "trial error.” We ultimately concluded there was “no ‘trial error’ of which the State may at this point in the process avail itself to the end of a more desirable result ...,” Benson, at 712.

The State’s “fundamental premise” basing identical contentions in its second motion for rehearing was rejected by the Court, Benson, at 714, albeit from a perspective that the charge was "correct,” id., at 715. However, as demonstrated above, in law and fact it was not. Moreover, as pointed out in my opinion in Fain, supra, "[Tjhe Court appears to have since aban*411doned that particular prerequisite to measuring sufficiency of the evidence according to the charge,” id., at 204.