William Solomon Lewis v. the State of Texas ( 2023 )

Reversed and Rendered and Majority and Dissenting Opinions filed May 18,
2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00372-CR
WILLIAM SOLOMON LEWIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1652421
DISSENTING OPINION
The jury was instructed to return a verdict of guilty if it found beyond a
reasonable doubt that appellant had threatened to harm his mother “in retaliation for
or on account of the service or status of [her] as a witness.” The jury made that
finding, but according to the majority, the evidence is legally insufficient to support
it. The majority explains that even though there was ample evidence that the mother
had testified as a witness in the protective-order case, there was no similar evidence
that she had testified as a witness in the harassment case, and such evidence was
necessary because the evidence plainly established that appellant’s threat of harm
was motivated by events in the harassment case, rather than by events in the
protective-order case.
I take no issue with the majority’s analysis of the protective-order case and
how the mother’s testimony in that case fails to make the causal link to the threat of
harm in this case. However, I disagree with the majority’s other conclusion that the
conviction in this case required some evidence that the mother had already
testified—in the past tense—in the harassment case.
The majority based that conclusion on Jones v. State, 628 S.W.2d 51 (Tex.
Crim. App. 1980), which held that the word “witness” in the retaliation statute meant
“one who has testified in an official proceeding.” Id. at 55. This definition is also
focused on the past tense, but the retaliation statute has changed since Jones, and the
changes have been significant.
At the time of Jones, the statute 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, or informant.” Act effective Jan. 1, 1974, 63d Leg., R.S., ch. 399,
§ 1, 1963 Tex. Gen. Laws 883, 945. Notably, the statute authorized a conviction only
if the retaliation was in response to another person’s “service” as a witness.
In response to Jones, the statute was amended to include a “prospective
witness” among the category of protected persons: “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.” Act effective Sept. 1, 1983, 68th Leg., R.S., ch.
558, § 4, 1983 Tex. Gen. Laws 3237, 3238.
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Later, the statute was amended again to provide “status” as an alternative to
service: “A person commits an offense if he intentionally or knowingly harms or
threatens to harm another by an unlawful act in retaliation for on or account of the
service or status of another as a public servant, witness, prospective witness, or
informant . . . .” Act effective Sept. 1, 1997, 75th Leg., R.S., ch. 239, § 1, 1997 Tex.
Gen. Laws 1161, 1161.
That amendment is significant for two reasons. First, by broadening the
retaliation statute to include “status,” the amendment left “no existing gap in the
persons protected under” the statute. See Cada v. State, 334 S.W.3d 766, 772 (Tex.
Crim. App. 2011) (tracing the legislative history of the statute). Second, as explained
in Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002), the amendment created
“redundancies” in the statute, which actually enforced the broader protections. Id. at
92.
Ortiz involved a complaint of charge error. Id. at 91. The charge authorized a
conviction if the defendant had retaliated against the complainant on account of the
complainant’s “service or status” as a prospective witness, even though at the time
of the alleged offense, the retaliation statute had not yet been amended to include the
word “status.” Id. The Court of Criminal Appeals concluded that the charge was
erroneous insofar as it relied on the wrong version of the statute, but that the
defendant was not egregiously harmed. Id. at 91–92. The Court reasoned that there
are “some redundancies” in the statute, both with the phrase “prospective witness,”
and with the words “status” and “service.” Id. at 92. The Court continued:
With the other options in the statute—public servant, witness, and
informant—there is a clear difference between that person’s status
versus his service. But with a “prospective witness,” the line is blurred,
since the word “prospective” denotes a future event. There is little
difference between a prospective witness’s status and his service.
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Id.Similarly, and taking into account the Legislature’s clear intent to broaden the
retaliation statute and leave “no gaps,” there is little difference between a person
having the “status of a witness” and a “prospective witness.” In other words, a person
can have the status of a witness, even if the person has not already testified in an
official proceeding as required by Jones.
In my view, there was ample evidence to support the jury’s finding that
appellant’s mother had the status of a witness. The officer testified that the mother
is the complaining witness in the case. Indeed, the mother’s complaint was what led
to the district attorney’s office filing for the protective order. It also led to the
mother’s appearance at the protective-order hearing and to the charging instrument
in the harassment case.
While the mother had not yet served as a witness in the harassment case, she
still held the status of a witness in that case. Appellant threatened to kill his mother
because she is the complaining witness in that case. Appellant was being held in
custody pending the harassment case. His belief that he would go back to federal
confinement was not because of the protective-order case. Instead, it was because of
the harassment case. At one point during his jail call, appellant even claims that he
will plead guilty in the harassment case and then kill his mother. This was more than
sufficient to show that appellant threatened to harm his mother in retaliation for or
on account of her status as a witness.
For all of these reasons, I would conclude that the evidence was legally
sufficient to support the conviction and affirm the trial court’s judgment. Because
the majority does not, I respectfully dissent.
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/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
Publish — Tex. R. App. P. 47.2(b)
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