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
MAJORITY OPINION
The State proved that appellant committed the offense of retaliation because
he threatened to murder his mother on account of her service or status as a
prospective witness against him in an upcoming trial. But, the State alleged in the
indictment that appellant committed the offense because of his mother’s status only
as a “witness,” rather than a “prospective witness”—a distinct statutory term. This
fatal variance between the State’s allegation and the proof at trial requires us to
reverse his conviction and render a judgment of acquittal due to insufficient
evidence. See Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011).
I. BACKGROUND
In its indictment, the State alleged that in Harris County and on November 4,
2019, appellant “did then and there unlawfully, intentionally and knowingly harm
and threaten to harm [the complainant] by an unlawful act, namely Murder, in
retaliation for and on account of the service and status of [the complainant] as a
witness.”
In the trial of this case, the State adduced evidence that appellant had
previously been indicted in April 2019 in the Harris County Criminal Court at Law
No. 14 for harassing his mother, also the complainant in this case. The mother
testified that the harassment charge was based on several text messages that he had
sent her in April 2019.
A lieutenant with the Harris County Sheriff’s Office testified that appellant
had been out of jail on bond for the harassment charge, but on October 31, 2019,
appellant was taken into custody and placed in the Harris County Jail. On
November 4, appellant made a phone call from the jail to his ex-wife. The call was
recorded, and the recording was admitted as an exhibit. After some discussion of
other matters, the recording continues and concludes as follows:
Appellant: Where’s my mom at?
Ex-wife: I am guessing she’s at home.
Appellant: You never talk to her?
Ex-wife: Yeah, I talked to her. I don’t know, Will, I don’t think
she’s going to budge.
Appellant: What?
Ex-wife: I don’t think she’s going to budge on that.
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Appellant: Budge? Budge on what?
Ex-wife: Didn’t you ask—aren’t you wanting me to talk to her
about dropping the charges, or whatever?
Appellant: No, I—
Ex-wife: She’s not dropping the charges.
Appellant: Okay. So, she’s trying to send me back to federal prison?
Ex-wife: I don’t think she’s going to drop the charges.
Appellant: So, she wants me back in federal prison is what you are
saying, right?
Ex-wife: She didn’t say that. She said she hates to see you go but
that she is not dropping the charges.
Appellant. So, she hates to see me go back to—so, she wants me go
to federal prison. She doesn’t hate to see me go. I mean
she wants to see me go.
Ex-wife: I don’t know, Will. I am staying out of you and your
mom’s stuff.
Appellant: Does she know that I am in jail right now?
Ex-wife: Oh, yeah, she knows. I told her.
Appellant: Alright, so does she understand that they are sending me
back to federal prison for three years?
Ex-wife: She—I told her—I told her that. You said 30 months,
and that’s what I told her.
Appellant: How many?
Ex-wife: Didn’t you say 30 months?
Appellant: Yeah.
Ex-wife: Mmm, yeah.
Appellant: And she said, “Well, I am sorry that’s just the way it is.”
Right?
Ex-wife: No, she didn’t say that. She just said she, you know, she
was sorry to hear that.
Appellant: So, she’s going to show up and testify against me at my
trial?
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Ex-wife: Mmm, I think so.
Appellant: Alright. Well then I know what I gotta do when I get out.
I’m gonna kill that bitch. She’s dead. Period. And I
don’t give a fuck what these prosecutors think about that.
I’ve said that, and that’s recorded. They caused this
situation.
Ex-wife: Hmm. If I was you, I wouldn’t be making those kinds of
threats over the phone.
Appellant: I don’t give a fuck now. I am ready to die over this shit.
You got me fucked up. You got me fucked up. I ain’t no
bitch, you know what I mean. She, she has—she steals.
She fucks me out of 300 grand, and then has me sent to—
then fucking tells me that, like, she is going to overrule
me on my kid, and I ain’t going to tell her shit about it.
And then, has me locked up behind it, and then goes and
treats me like a bitch and does whatever she wants with
my kid. And then I’m a bitch, and then she’s going to go
to testify against me and have me go to prison. A man
can only take so much, dude, and I’ve just had it. I don’t
give a fuck—
Ex-wife: You don’t know if she is going to—
Appellant: Look, I ain’t fighting none of this shit no more. When I
get out, I am going to handle my business. Dude, I have
been trying to be good. I have been trying to fight this
shit and maintain my innocence on all these other charges
that they have tried to frame me on, but I am done now. I
am the bad guy now. I’m snapping off when I get out.
Let me out of here. I’m going to go post this bond, dude,
and I am walking. And, I am going to go handle my shit.
That’s what I’m going to do. I gotta go kill some people,
dude. That’s what I gotta go do. That’s where we are at
now.
Ex-wife: Hmmm.
Appellant: I am through trying to play. They just pushed me over
the edge right now. I just snapped the fuck off. My car
has been stolen and wrecked. My other car has been
fucking put in the impound, and now they’re trying to
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send me back to federal prison, dude. And all my shit
has been thrown away. All my legal materials are gone.
Everything I have been working on, it’s all gone.
Everything that I have been working on for the last 15
years is in the trash. So, you know, I’m—I’m—I’m
ready. I got nothing to live for, dude. I am ready to die,
and I am going to take some motherfuckers with me, too.
Just pushed me over the—I just snapped off right now.
Ex-wife: Hmm, now where are—which prison are you—jail are
you in?
Appellant: I mean it really don’t matter. I posted a bond. I’m going
to get the fuck out, and I got to go handle the business. I
will be dead in a few days.
Ex-wife: Hmmm.
Appellant: That’s it. There’s no “hmmm” about it. That’s the way
it’s going to be.
Ex-wife: Hmm, well, it’s your life. It’s your life.
Appellant: Yeah, well, I mean, you know, my soul is prepared to
die. I’m done. This is the way I want it. I’m not going
to be a bitch, dude, anymore. I’ve been being a bitch for
the last fifteen years. I’m tired of being a bitch. I let
them run all over me and accuse me of shit I didn’t do. I
said I was going to sue a cop. They sent me to prison and
held me in double-door lockdown for fucking five years.
Then, when I get out, they fucking do a search warrant—
an illegal search warrant on me trying to look for more
evidence trying to get me on something when I’m trying
to, like, do legal work against people, right, through the
courts. And they consider that a threat—another threat.
And they take my stuff and my paperwork, and they turn
around and use it against me and get a search warrant.
And then they find a gun that Cody put in the car that I
didn’t know anything about. And I gotta spend—
Ex-wife: Hey, you have that affidavit still, right?
Appellant: That affidavit has been submitted. That’s why they did
it. But I don’t give a fuck about any of that anymore. I
told you, I don’t care now. It’s over. I don’t care. Fuck
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all that. Fuck that affidavit. Fuck all that shit I’m
fighting. Fuck that lawsuit. Fuck everything, dude. I’m
ready to go now. My soul is prepared to die. I’m going
to get myself an AR-15 carbine with fucking hundred-
round clips, full metal jacket, when I get out of here.
That’s the way it's gonna go down.
Ex-wife: Hmm. Well—
Appellant: My soul is prepared to die now over this.
Ex-wife: So, listen, so what jail are you in right now?
Appellant: It don’t matter what jail I’m in. It really don’t. I gotta
just—I’m gonna go in, and I’m going to get this bond.
And I’m going to get the fuck out of here. And then I
gotta go take care of what I gotta take care of. And then
I’ll be—you’ll probably never hear or see from me ever
again. I’m ready to die now.
Ex-wife: Hmm, well, you better watch what you say, Will.
Appellant: I can’t talk about it anymore. I’m not—It don’t matter
what I say. I don’t give a fuck about what I say. You
don’t—you don’t—you not hearing what I’m saying? I
don’t give a fuck. I just got pushed over the edge right
now. I don’t give a fuck.
Ex-wife: You’ve been over the edge for a while.
Appellant: No, I haven’t been over the edge. I’ve been working on
legal work, trying to remedy, trying to prove my
innocence and get real trials this time—this time from the
street where you present witnesses and evidence on
behalf of the defense instead of sitting down and resting
after I’ve given an attorney eighty grand. And he just
rests the defense. And then they find, and they come
back fucking five minutes later and find me guilty and
send me to prison for fucking years. I mean, I’m not
working like that anymore. That’s the way they’ve been
doing me. I ain’t doing that anymore.
Ex-wife: Hmm. Well, Will, I gotta pay for this.
Appellant: There’s nothing. There’s nothing—
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Ex-wife: I understand. I gotta pay for this phone call, so, I have to
go. I can’t talk to you for a long time.
Appellant: Who you—who you talking to?
Ex-wife: I’m talking to you.
Appellant: You gotta pay for this phone call? It’s eighteen cents a
minute.
Ex-wife: Yeah, but how many minutes have I been talking to you?
Appellant: Look, this is what they wanted, right? They wanted to
hem me up in this fucking jail on a class C misdemeanor,
right? They wanted to hem me up in this jail when I’m
about to win all these other cases, right? Send a SWAT
team after me for a class C misdemeanor. Have me—
maybe I’ll resist. Maybe I’ll get killed. Maybe I won’t.
But then they’ll put me back in here and have me on a
bond that I can’t pay, where I ain’t got no way to get out,
right? And then, like, keep pushing my fucking buttons.
So I snap off. And that’s what they got. I’m going to
snap off now. So what I’m gonna do is—
Ex-wife: You need to stop making threats on the phone.
Appellant: Here’s what I’m going to—I don’t give a fuck anymore.
I don’t make threats on the phone. I’m making threats on
the phone now. I’m making statements now. This is
the—for the first time in my life, I’m making some
threats. AR-15. I’m—when I get out, look, here’s what
I’m going to do. I’m going to go— I’m going to go to
court. I’m going to plead guilty, right? And I’m going to
get them to let me out of jail that day. And then, we’re
going to have some motherfucking problems is what
we’re going to have. ‘Cause they gotta get me out of
here. They gotta get me time served.
Ex-wife: Hmm. Well, when are you supposed to be doing the
bond? The bond. When?
Appellant: There’s not going to be a bond. There’s not going to be a
bond. I’m gonna go in there, and I’m just gonna plead
guilty to this. And I’m going to get out. And I’m going
to do what I gotta do. I’m snapping off right now. I’m
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not coming back, either. Anyways, dude, I’ll catch you
on the upside. I’m just calling to let you know the way
things are going to be.
Automated Voice: The caller has hung up.
The lieutenant testified that, during the call, appellant was referring to the
harassment charges filed in the Harris County Criminal Court at Law No. 14: “Of
course, that’s the only case where—that I’m aware of at the time that she’s the
complaining witness.”
The ex-wife testified that appellant was making threats against his mother
“[b]ecause she was wanting to, I guess, testify against him.” The ex-wife testified
that she believed appellant was talking about his mother testifying in the
harassment case because “that’s the only situation that they had going on where the
courts were involved.”
The mother testified that she never gave testimony in an official proceeding
in the harassment case. When she heard appellant’s threat, it made her think twice
about possibly testifying in the harassment case.
When the state rested its case, appellant moved for a directed verdict
because the State failed to prove that appellant’s threat was made on account of his
mother’s service or status as a witness, rather than as a prospective witness. The
State asked to reopen its case under Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim.
App. 2003) (“[A] judge should reopen the case if the evidence would materially
change the case in the proponent’s favor.”). The State agreed with the court that if
the case were not reopened, a directed verdict would be required. The court
granted the State’s motion.
The State adduced additional testimony from appellant’s mother that in
April 2019 she had testified by affidavit in support of an application for a
8
protective order against appellant. In the affidavit, the mother detailed the facts
underlying the harassment charge. In May 2019, she testified in person in the
280th Judicial District Court regarding the application. The 280th Court granted
the protective order on the same day. The trial court admitted into evidence a copy
of appellant’s motion to quash the protective order, in which he argued that the
allegations made in his mother’s affidavit were not acts of family violence.
The mother reiterated that she had not testified in the harassment case and
that the only trial that was coming up at the time of appellant’s November 2019
recorded statement was the harassment charge. In the mother’s opinion,
appellant’s recorded statement was referring to the “harassment case more than
likely.”
The jury found appellant guilty of retaliation. The court assessed
punishment and sentenced appellant to eight years’ confinement.
II. SUFFICIENCY OF THE EVIDENCE
In a single issue, appellant contends that the evidence is legally insufficient
to prove that his threats were made on account of the mother’s service or status as
a witness. The State contends that circumstantial evidence would have allowed the
jury to believe that appellant harbored a retaliatory intent about the mother’s
service as a witness in the protective order case.
A. Standard of Review
In reviewing whether there is sufficient evidence to support a conviction, we
look at all the evidence presented in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. McKay v. State, 474 S.W.3d 266, 269
(Tex. Crim. App. 2015). If the evidence is so weak that it creates only a suspicion
9
that a fact exists, then it is no more than a scintilla, and the evidence is insufficient.
See id. at 270. The evidence is insufficient if there is merely a modicum of
evidence probative of an element of the offense. Garcia v. State, 367 S.W.3d 683,
687 (Tex. Crim. App. 2012).
A defendant’s intent may be inferred from circumstantial evidence such as
the defendant’s acts, words, and conduct. Guevara v. State, 152 S.W.3d 45, 50
(Tex. Crim. App. 2004); see also Romano v. State, 610 S.W.3d 30, 35 (Tex. Crim.
App. 2020) (“We cannot read an accused’s mind, and absent a confession, we must
infer his mental state from his acts, words and conduct.”). If the evidence supports
conflicting inferences, we assume the jury resolved the conflict in favor of the
State. McKay, 474 S.W.3d at 270. Yet, juries may not come to conclusions based
on mere speculation or factually unsupported inferences. Hooper v. State, 214
S.W.3d 9, 15 (Tex. Crim. App. 2007). An inference is a conclusion reached by
considering other facts and deducing a logical consequence from them. Id. at 16.
Speculation is mere theorizing or guessing about the possible meaning of facts and
evidence presented. Id. “A conclusion reached by speculation may not be
completely unreasonable, but it is not sufficiently based on facts or evidence to
support a finding beyond a reasonable doubt.” Id. In determining whether
inferences are reasonable, we view the combined and cumulative force of all the
evidence in the light most favorable to the verdict. Garcia, 367 S.W.3d at 687;
Hooper, 214 S.W.3d at 16–17.
B. Hypothetically Correct Jury Charge for Retaliation
We measure the sufficiency of the evidence by the elements of the offense as
defined in a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766,
773 (Tex. Crim. App. 2011). A hypothetically correct charge is one that accurately
sets out the law, is authorized by the indictment, does not unnecessarily increase
10
the State’s burden of proof or unnecessarily restrict the State’s theories of liability,
and adequately describes the offense for which the defendant was tried. Id. To be
“authorized by the indictment,” when the offense contains various statutory
alternatives, the hypothetically correct charge may include only those alternative
elements that are alleged in the indictment. Id. The sufficiency of the evidence is
measured by the specific elements that the State has alleged in the indictment. Id.at 773–74. “Thus, if the State pleads one specific element from a penal offense
that contains alternatives for that element, the sufficiency of the evidence is
measured by the element that was actually pleaded, not any other statutory
alternative element.” Id. at 774.
The statutory elements of the felony offense of retaliation are: (1) the
defendant (2) intentionally or knowingly (3) harms or threatens to harm (4) another
person (5) by an unlawful act (6) in retaliation for or on account of (7) the service
or status of another as (8) a public servant, witness, prospective witness, informant,
or a person who has reported or who the actor knows intends to report the
occurrence of a crime. See Tex. Penal Code § 36.06(a)(1); Cada, 334 S.W.3d at
770. The service or status of the complainant as a “witness” or “prospective
witness” are different statutory elements of the underlying offense. See Cada, 334
S.W.3d at 770.
The State may plead in the conjunctive and charge in the disjunctive. Id. at
771. Thus, an indictment might allege that the defendant retaliated against the
complainant because he was a “public servant, witness, prospective witness, and
informant,” and if the proof shows any one of those statutory alternative elements
beyond a reasonable doubt, then the evidence is sufficient to support a conviction.
Id. at 771. But, when the State pleads only a statutory element for which there is
insufficient evidence, the conviction cannot be affirmed based on an unpleaded
11
statutory element for which there is sufficient evidence. See id. at 775–76
(insufficient evidence under the pleaded theory of “witness” although there was
sufficient evidence for the unpleaded theory of “informant”).
The term “witness” as used in the retaliation statute means that the
complainant “has testified in an official proceeding.” Id. at 770 (quoting Jones v.
State, 628 S.W.2d 51, 55 (Tex. Crim. App. 1980)). When the State alleges the
offense of retaliation based on the complainant’s service as a witness, the State
must prove that (1) the complainant has testified in an official proceeding; and (2)
the defendant threatened the complainant “on account of, or because of, that
service as a witness in an official proceeding.” Id. at 774.
C. Analysis
The State contends that appellant’s statements in the recorded telephone call
show that he was angry about many things as he aired a long list of grievances.
The State contends, “A jury could well conclude that someone who harbored
bitterness towards his mother—and based upon the conversation, everyone else—
was also angry at her for the past testimony and obtaining of a protective order, not
just selectively for future testimony alone.”
Although it is not “completely unreasonable” to assume that appellant was
angry at his mother for her past testimony in the protective order case, the
additional inference that he threatened to murder his mother on account of, or
because of, her past testimony in an official proceeding is not “sufficiently based
on facts or evidence to support a finding beyond a reasonable doubt” when we
consider the “combined and cumulative force of all the evidence when viewed in
the light most favorable to the verdict.” See Garcia, 367 S.W.3d at 687, 689;
Hooper, 214 S.W.3d at 16–17.
12
Appellant’s threat against his mother occurred many months after the
protective order proceedings, but only a few days after his bond was revoked in the
harassment case and he was returned to jail. During the telephone call, he made
the threat immediately after he learned that his mother intended to testify against
him in the upcoming harassment trial. He continually referred to her future
testimony in the harassment case sending him “back to federal prison.” Although
appellant referred to many other things that angered him, including his mother’s
conduct unrelated to her future testimony, appellant never mentioned her past
testimony or the protective order. Every witness who testified understood
appellant’s statements in the recording to be referring only to the harassment
case—an official proceeding in which the mother did not testify.
The State, citing federal cases applying federal witness tampering and
retaliation statutes, notes that a defendant may have “mixed motivations” for
making a threat. See United States v. Maggitt, 784 F.2d 590, 593–94 (5th Cir.
1986) (upholding convictions under both statutes when the defendant told the
complainant that she knew what the complainant had “said” to a grand jury and
that she “stood too much to lose”). We agree that the State did not need to prove
that appellant’s sole motivating purpose for threatening his mother was her prior
testimony in an official proceeding. Cf. In re M.W., 513 S.W.3d 9, 13–14 (Tex.
App.—Tyler 2015, pet. denied) (sufficient evidence to support finding that the
defendant struck a teacher because of the teacher’s service as a public servant
when the evidence showed that the defendant was attempting to harm another
student in the course of striking the teacher, who was attempting to prevent the
defendant from harming the student).
But, it is not enough for the State to prove only that appellant made a threat
against someone who had testified at some official proceeding. The State must
13
prove beyond a reasonable doubt that appellant threatened her at least “on account
of,” i.e., because of, her testimony in an official proceeding. See Cada, 334
S.W.3d at 774. Regardless of whether the element of “on account of” requires a
retributive intent, 1 or merely that the threat be “in any way related” to the
complainant’s service or status as a witness,2 there is evidence of neither in this
case. The record contains overwhelming evidence that appellant threatened his
mother because of her status or service as a prospective witness and no evidence
that he threatened her also because of her prior testimony in the protective order
case. And the record contains no evidence that appellant’s mother testified in
some capacity in the harassment case—for example, in front of a grand jury or at a
preliminary hearing—to suggest that appellant’s threat was causally related to her
service or status as a witness.3
Considering the entire record in the light most favorable to the verdict, a
rational jury could not have found beyond a reasonable doubt that appellant
threatened his mother in retaliation for or on account of her service or status as a
witness. See Cada, 334 S.W.3d at 774.
1
See generally Creeks v. State, No. 14-10-01026-CR, 2012 WL 1357676, at *2–4 (Tex.
App.—Houston [14th Dist.] Apr. 17, 2012, pet. ref’d) (mem. op., not designated for publication)
(noting split of authority in retaliation cases involving public servants: whether the State must
prove that the threat or harm resulted from a “retributive attack for duties already performed”).
2
Cf. Schmidt v. State, 278 S.W.3d 353, 363 (Tex. Crim. App. 2009) (holding that the
defendant was entitled to a lesser-included assault instruction for the offense of retaliation, as
pleaded, when there was conflicting evidence about “whether his reason for assaulting her was in
any way related to her statement to the police”).
3
We do not hold that a defendant’s stated reason for threatening a person is dispositive of
whether the threat was made on account of the person’s specified status. For example, had
appellant’s threat been made in closer temporal proximity to the mother’s testimony in the
protective order case, a jury might well infer that appellant’s threat was made because of her
service as a witness—because appellant obtained a preview of her likely testimony in the
harassment case. But in this case, the record contains nothing that would allow such an
inference; it would be mere speculation.
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D. Response to the Dissent
The dissent suggests that the addition of the term “status” to the retaliation
statute in 1997 broadened the statute such that a person may have the status of a
witness even if the person has not testified, as required by the definition of
“witness” provided in Jones. Thus, the dissent concludes that appellant’s mother
was a witness in the harassment case even though she did not testify in that case.
As reiterated in Cada after the 1997 amendment, “[T]he statutory term
‘witness’ in the retaliation statute means ‘one who has testified in an official
proceeding.’” Cada, 334 S.W.3d at 770 (quoting Jones, 628 S.W.2d at 55). The
term “prospective witness” means a “person who may testify in an official
proceeding.” Ortiz v. State, 93 S.W.3d 79, 86 (Tex. Crim. App. 2002) (quoting
Morrow v. State, 862 S.W.2d 612, 614 (Tex. Crim. App. 1993)). Although the
Court of Criminal Appeals has suggested in dicta that there is a “clear difference”
between “status” and “service” as a witness, the court provided no explanation and
subsequently reasoned there was “little difference” between “status” and “service”
as a prospective witness. See Ortiz, 93 S.W.3d at 92.
The court has acknowledged that it is “not always easy to categorize a
particular citizen who has been subject to retaliation into one specific box . . . to
the exclusion of all other categories . . . [b]ut as this Court has previously noted,
‘[w]hile there may be some overlap among the categories of persons listed, each
category is nevertheless distinct.’” Cada, 334 S.W.3d at 772 (quoting Morrow,
862 S.W.2d at 614). “[E]ven though there may be some overlap and considerable
commonality between the various statutory categories of protected persons under
the retaliation statute, they are distinct and separate statutory elements of the
offense.” Id. at 776.
15
The dissent’s conclusion that there is little difference between a person
having the “status as a witness” and the “status as a prospective witness” appears
contrary to the principle that the different statutory categories of protected persons
are distinct and separate statutory elements, see Cada, S.W.3d at 772, 776, even if
there is sometimes “little difference” between the statutory terms “status” and
“service,” see Ortiz, 93 S.W.3d at 92.
Although the Legislature has broadened the retaliation statute over time to
protect every category of person who might possess information regarding criminal
activity, the burden remains on the State to plead and prove in each case the
statutory elements alleged in the indictment. See id. at 775–76. In this case, the
State failed to do so.
III. CONCLUSION
Although the State could have charged and convicted appellant for making a
threat on account of his mother’s status as a prospective witness, the State did not
plead the required statutory element to support a conviction under that theory. See
id. at 774–76. There is legally insufficient evidence to prove that appellant
retaliated against his mother on account of, or because of, her service or status as a
witness, as pleaded in the indictment. See id. at 774. Accordingly, we must
reverse the judgment of conviction and render a judgment of acquittal. See id. at
776.
/s/ Ken Wise
Justice
16
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
(Christopher, C.J., dissenting).
Publish — Tex. R. App. P. 47.2(b)
17