Jones v. State

¶1OPINION

¶2This is an appeal from a conviction for retaliation, denounced by V.T.C.A. Penal Code, § 36.06. The trial court assessed punishment at five years.

¶3The evidence reflects that pursuant to a telephone call from appellant in Dallas on June 16, 1977, appellant’s estranged wife, Glenda Jones, left Fort Worth and the two met at the Continental bus station in Dallas at approximately 1:30 p.m. They walked into the station cafeteria and sat down. The restaurant manager, Catherine Bonds, testified that appellant was speaking loudly, using profane language, so she asked him to “watch his language,” whereupon appellant jumped out of his chair and slapped her, knocking her glasses off her face.

¶4Glenda Jones arose to leave and appellant grabbed her, hit her across the face, knocking her under a large booth and proceeded to exit the restaurant.1 Mrs. Jones testified that she at this point heard “someone say *53something” about the police having been called.2 Catherine Bonds testified that she enlisted the company of a man and followed appellant down the street. Appellant, apparently recognizing Bonds, turned around and approached her whereupon she told him not to come back to her restaurant. Appellant turned back around, crossed the street and walked down the street away from the bus station.

¶5Harold Henley, a traffic control police officer had just returned to his beat from having a patrol officer drive him and a prisoner to the jail, when a call came over the patrol car radio, reporting a “robbery in progress” at the Continental bus station. Henley started on foot toward the bus station, two and one half blocks away, but immediately saw a boy waiving his arms, pointing to appellant and saying that appellant “robbed the Continental bus station.”3 Henley stopped appellant who agreed to return to the bus station to check into the matter. Henley and appellant entered the back seat of the patrol car and were driven back to the bus station.

¶6The stage was thus set for the commission of the alleged retaliation offense by appellant against Glenda Jones. From this point, the testimony clearly established that upon appellant’s return to the bus station, Mrs. Jones and Catherine Bonds were talking to two other policemen, inside the building.

¶7Appellant was yelling and cursing at the transporting officers and the women, whom he could see through glass doors. Officer Henley testified that appellant yelled:

“It was either that crazy bitch or that goofy bitch called the law or called the police on me and I’ll kill her.”4

¶8Henley testified that he exited the patrol car and appellant leaned out the window, pointing at his wife,5 stating, “Yeah, you goofy bitch, you’re the one that did it.” At this point, Henley and another officer stepped to the patrol car and rolled up the windows, then went inside to find out what happened. ■

¶9Glenda Jones testified that she could see and hear appellant yelling outside. According to Mrs. Jones, “he made a few threats but exactly what he said I don’t know. I guess I was kind of stunned but I know after they put him in the car he kept waiving his hands and pointing his finger. . . at myself, ... then the officers rolled up the window....”6

¶10After the women had spoken with the officers, appellant was taken to the police station where he was charged with retaliation.7

¶11The State stipulated that Glenda Jones had never before testified against appellant in any judicial proceeding, that she was not the party who instigated the instant proceeding against him, and that she had been subpoenaed by the State to testify. It was also agreed that Officer Henley told Mrs. *54Jones that appellant had threatened to kill her, otherwise, she would not have known.

¶12The salient portion of V.T.C.A. Penal Code, § 36.06, under which appellant was prosecuted reads:

“(a) A person commits an offense if he intentionally or knowingly ... 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.”8

¶13The threshold question before us is one of statutory construction: within the context of the statute, what is the intent in proscribing retaliatory conduct against one who has served as a “witness?”9

¶14V.T.C.A. Penal Code, § 1.05, instructs that our penal statutes are not to be strictly construed, but rather, “shall be construed according to the fair import of their terms, to promote justice and effect the objectives of this code.” 10 We are further guided by Subsection (b) which directs:

“Unless a different construction is required by the context, Sections 2.01,11 2.02, 2.04, 2.05, and 3.01 through 3.12 of the Code of Construction Act (Article 5429b-2, Vernon’s Texas Civil Statutes) apply to the construction of this Code.”

¶15The State, without analysis or citation of authority, argues that the phrase contained in § 36.06(a), supra, “service ... as a ... witness,” means one who witnesses a criminal offense — here the victim of it. See Black’s Law Dictionary (Rev. Fourth Edition) 1778. The difficulty in that position is revealed at one point when the State, referring to threats of harm to Glenda Jones, finds itself alluding to her “capacity” as a witness. Yet, the statutory term is “service.” The suggested construction, then, would include a beholder who has not, and may never, render service as a witness.12 It is also alien to the context of the statute, to which we now turn.

¶16As regards the “context” of the statute in issue, the Practice Commentary to § 36.06 notes that,

“. .. [A] threat, conduct that is not itself unlawful, much less criminal (unless it constitutes an assault, a class C misde*55meanor, under Section 22.01) becomes criminal if it is directed toward a public servant, informant, or a witness in response to the ‘victims’ activity in an official capacity. (‘Witness’ is not defined, but presumably the term will be construed to mean only one who testifies before an official proceeding, cf. Section 36.0513; otherwise location of the ‘witness’ part of the offense in this chapter would be inappropriate.) The over-breadth of Section 36.06 is particularly objectionable since it has been graded a .felony.”

¶17To accept a broader construction would at once defeat the legislative objectives in proscribing the offense of retaliation [see n. 10 ante], and render the provision relating to retaliation against a witness impermissibly vague. Surely there is nothing in the context of § 36.06 which requires us to construe it differently14 than upon the presumptions that “compliance with the Constitutions of this State and the United States is intended; the entire statute is intended to be effective; and, a just and reasonable result is intended.” Article 5429b-2, supra, § 3.01(1) — <3).

¶18Furthermore, considering the requirement of § 36.06, supra, that the proscribed conduct be “in retaliation for or on account of the service of another as a. .. witness,”15 we must construe “witness” to mean, one who has testified in an official proceeding. Accord Ulmer v. State, 544 S.W.2d 414 (Tex.Cr.App.1976) (and particularly, Odom, J., concurring).

¶19For all the reasons expressed, we reverse the conviction for evidentiary insufficiency and order the entry of a judgment of acquittal.

¶38dissenting.

¶39The indictment in this cause alleged that Jones did

“... knowingly and intentionally threaten to harm Glenda Jones, a witness, by an unlawful act, namely, threatening to kill, in retaliation for and on account of the service of Glenda Jones, a witness in a criminal assault upon her, the said Glenda Jones by the above named defendant, ...” (Emphasis supplied)

¶40The evidence, viewed in the light most favorable to the verdict, shows that appellant, having called the complainant, his former common-law spouse, to arrange a meeting, did meet her at a bus station. They went into the cafeteria of that station, where, after a brief argument with the woman who manages the cafeteria, appellant slapped the manager and the complainant got up to leave.

¶41Appellant then hit Glenda Jones over the head with a glass ashtray which shattered, cutting appellant’s hand and showering Glenda Jones’ hair with glass.

¶42Appellant fled and was apprehended nearby by policemen who had been called to *56investigate a robbery at the bus station. In his hand was found $50, the amount of money which Glenda Jones discovered missing from her breast pocket after the assault.

¶43After being returned to the bus station, appellant shouted threats and insults from the sidewalk by the police car, and later from the back seat of the car. Glenda Jones, who was standing nearby reporting her knowledge of the assaults upon the manager and herself, heard him say he was “going to get [her].” Officer Harold Henley heard appellant say, “That goofy bitch called the police and I’m going to kill her for it,” and saw appellant lean out the window, point at Glenda Jones and say, “Yes, you goofy bitch, you’re the one." Those statements are the gravamen of this cause.

¶44Appellant contends that “witness”, as contemplated by Section 36.06, means a witness in an official proceeding, and that, because the State offered no proof that Glenda Jones was a witness in an official proceeding, the evidence was insufficient to support the judgment.

¶45In Ulmer v. State, 544 S.W.2d 414 (Tex.Cr.App.1976), we stated, quoting from the Explanatory Commentary to Section 36.06, Retaliation, of Volume 3, Branch’s Texas Annotated Penal Statutes, Third Edition:

“The purpose of this section is to raise the punishment for other offenses, such as assaults (Sec. 22.02) when the conduct is retaliatory. The section is not limited to criminal matters, but sufficiently broad to cover all public servants, witnesses, and informants involved in legislative, administrative, and other proceedings.

“It should be noted that the service of a public servant or witness is not limited to governmental functions while the informant is by virtue of the definition in Subsection (b).” (Emphasis added)

¶46We went on to hold that, as applied to the facts in that case, the term “witness” included one who testified before a federal grand jury because the term was not limited by the statute and because the gravamen of the offense was the retaliatory act committed or threatened.

¶47Because the term “witness” is not defined in the Penal Code, we must rely on its commonly accepted meaning in applying it to the facts of the case. Black’s Law Dictionary, 4th Edition, defines witness as both:

(1) “In general, one who, being present, personally sees or perceives a thing, a beholder, spectator, or eyewitness, (citations omitted)

(2) “One who testifies to what he has seen, heard, or otherwise observed.” (Citations omitted)

¶48We should hold that, as applied to the facts of the instant case, the term “witness” includes one who perceives an event and relays the information gained to the police.

¶49The judgment should be affirmed.

¶50Before the court en banc.