Thursday, June 3, 2010

Retaliation and Assault

Below are a couple of published cases from the 7th (Amarillo) and 14th (Houston) Courts of Appeals regarding the sufficiency of an indictment and a jury charge, respectively.

Defect in Retaliation Indictment - Cada v. State, 7th District Court of Appeals (May 24, 2010)

In Cada, the appellant was indicted for and convicted of retaliation against a "witness" under Texas Penal Code Section 36.06.  Under prior Texas caselaw, the definition of "witness," as used in connection with the retaliation statute, means "one who had testified in an official proceeding."  In this case, however, the "witness" against whom the appellant was alleged to have retaliated, never testified in an official proceeding, but rather simply made a complaint to the police which resulted in appellant's wife being arrested.  The complainant, said the Court, was actually a "prospective witness," rather than an actual "witness" under the statute.  This variance in the indictment, the Court held, was not material.  Accordingly, the Court upheld the conviction for retaliation against a witness.

Defect in Jury Charge - Trejo v. State, 14th District Court of Appeals (May 20, 2010)

In Trejo, appellant was charged with aggravated sexual assault, but was convicted of aggravated assault as an LIO.  The Texas Court of Criminal Appeals, however, held that aggravated assault was not an LIO of aggravated sexual assault in this case and remanded the case back to the 14th Court.  The Court was tasked to determine whether appellant suffered "egregious harm" based on the trial court's error in charging the jury on aggravated assault even though it was not an LIO of the indicted offense.
Egregious harm deprives appellant of a fair and impartial trial. Egregious harm occurs when the error affects the very basis of the case,‘ deprives the defendant of a valuable right,‘ or vitally affect[s] a defensive theory.  In the egregious-harm analysis, we consider (1) the charge itself, (2) the state of the evidence, including contested issues and the weight of the probative evidence, (3) arguments of counsel; and, (4) any other relevant information revealed by the trial record as a whole.

Applying the four Almanza factors above and using the common sense observation that Appellant was convicted of the very offense that was improperly charged to the jury, the Court held that Appellant did indeed suffer egregious harm and reversed his conviction.