             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. PD-0754-10



                            FRANKIE LEE CADA, Appellant

                                                v.

                                  THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SEVENTH COURT OF APPEALS
                             HALE COUNTY

       C OCHRAN, J., delivered the opinion of the unanimous Court.

                                         OPINION

       We granted review of this retaliation case to determine whether a variance between

the indictment allegation of one statutory element–the description of the complainant as “a

witness”–is material when the proof shows that the complainant was either a “prospective

witness” or “an informant”–two different statutory elements.1 The court of appeals decided


       1
        Appellant’s four grounds of review are as follows:
1.     The Seventh Court of Appeals erred in holding that the variance between the indictment
       allegation that petitioner retaliated against a “witness” and the proof that he retaliated
       against a “prospective witness” does not constitute a material variance as described in
                                                                                   Cada     Page 2

that this variance was immaterial and the evidence therefore legally sufficient to support

appellant’s conviction of retaliation.2 We hold that a variance between the pleading of one

statutory element (“a witness”) and proof of a different statutory element (“a prospective

witness” or “an informant”) is material under Gollihar.3 Therefore, the evidence was legally

insufficient to support appellant’s conviction for retaliation as the offense was pled.

                                                I.

       Appellant was charged with the third-degree felony of retaliation for “intentionally

and knowingly threaten[ing] to harm another, to-wit: Arthur Finch, by an unlawful act, to-

wit, assault, in retaliation for or on account of the service of the said Arthur Finch as a

witness.”

       At trial, Arthur Finch testified that he works full-time as a jailer at the Hale County

Sheriff’s Office, but he also works part time at the local Allsup’s convenience store. He was

on the graveyard shift at Allsup’s when, close to 2:00 a.m., he got worried because a car had

been parked near the store for about ten to fifteen minutes, but no one had come inside. Mr.


       Gollihar v. State.
2.     Does the variance between the indictment and proof at trial regarding the status of
       protected persons identified in Section 36.06 of the Texas Penal Code constitute a
       material variance under the analysis required by Gollihar v. State?
3.     Does Gollihar allow an appellate court to expand the theories of criminal responsibility
       of an appellant beyond those alleged in the indictment and submitted in the jury charge?
4.     Does Gollihar limit all material variance analyses to the variance/notice analysis set forth
       by the majority opinion in that case?
       2
        Cada v. State, No. 07-09-00054-CR, ___ S.W.3d __, 2010 WL 2044466 *4 (Tex. App.–
Amarillo May 24, 2010).
       3
           Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001).
                                                                                Cada     Page 3

Finch said that he walked outside to check and saw somebody moving around inside the car,

“so I got a little bit nervous and everything, so I called the police thinking, hopefully, these

guys aren’t going to try to rob me.”

       The police arrived, and Mr. Finch saw them talk to the people in the car. Then

everyone left. He couldn’t see the people in the car and didn’t recognize anyone.

       About twenty minutes later, the phone at Allsup’s rang. When Mr. Finch picked it up,

he heard a voice saying, “[H]ey, you know man, you f____ed up. You know my wife–you

got my wife arrested and you didn’t need to call the cops.” Then the caller said that he was

Frank Lee Cada and told Mr. Finch, “[Y]ou’re going to pay.” Mr. Finch explained that he

had nothing to do with Mrs. Cada’s arrest, he had just called the police for his own safety.

But Mr. Finch was concerned enough about the caller that he phoned the police again to

report the incident.

       Ten minutes later, Mr. Finch got another phone call. The caller did not identify

himself, but Mr. Finch recognized the voice as being that of the person who had made the

earlier call. Appellant said, “[H]ey, I am behind the store and I am going to get you.” Mr.

Finch asked appellant to come to the front and talk with him, but appellant responded,

“[Y]ou know you’re going to pay.” Appellant then said that he was going to get back at Mr.

Finch’s family since appellant’s wife went to jail because Mr. Finch had called the cops.

       Mr. Finch then pushed the Allsup’s “panic button” to summon the police. Officers

arrived, searched around the store, but did not find anyone. They also went to Mr. Finch’s
                                                                               Cada     Page 4

home to check on his family’s safety. Mr. Finch felt threatened by appellant’s phone calls

and was worried that “if he is going to come in, if he has a weapon I was–I am stuck right

here in this one spot.”

       Officer Ward, a Plainview policeman, testified that he and two other officers were

dispatched to Allsup’s that night at about 1:45 a.m. to check on a “suspicious vehicle.” He

arrived and found a blue Honda Accord parked near the store. There were five people in the

car–appellant, his wife, Adam Cisneros, and two children, ages seven and twelve. After

Officer Ward identified them all, he “ran them through dispatch to check for any possible

warrants.” Appellant’s wife, Josie, had an outstanding warrant, so she was placed under

arrest. Appellant, sitting in the passenger’s seat, became angry and “began removing his

jacket, popping his knuckles and his neck and stating to the driver, ‘Adam, there’s only three

of them. We can take them.’” He wanted to know why the officers were called and why “we

were messing with him.” Officer Ward explained that the Allsup’s clerk had called because

he was concerned about the late hour and where the car was parked because of recent

robberies. When the clerk came outside, appellant began yelling and pointing his finger at

him. Another officer was so concerned about appellant’s anger that he took out his Taser,

but it was not necessary to use it.

       Officer Ward received two further calls from Allsup’s that night– the first at 2:12 a.m.

and the second, a panic alarm, at 2:24. Officer Ward again responded, found Mr. Finch

“extremely shaken and emotionally upset,” so he searched for appellant, but did not find him.
                                                                                   Cada     Page 5

       After the State rested, appellant moved for a directed verdict because there was no

evidence that appellant threatened to harm Mr. Finch because of his service as a witness.

After some discussion, the trial judge denied that motion.

       Appellant then testified. He said that he had previously been convicted of burglary,

terroristic threat, and resisting arrest. He testified that he and his family picked up his cousin,

Adam Cisneros, that night, and then they all went to Allsup’s where they sat in the car rolling

pennies to buy some snacks. When the police arrived, the officers asked for everyone’s

names and then arrested his wife on a motion-to-revoke-probation warrant stemming from

a misdemeanor hot-check case. Appellant admitted that he was mad when he phoned Mr.

Finch and called him “a punk m____ f___” and told him he was “a sorry person,” but he did

not know that Mr. Finch had been a witness to anything. He said that he was sorry for what

happened that night, but he did not think it was suspicious for him to park his car at Allsup’s

and sit in it for fifteen minutes.

       In both opening and closing argument, defense counsel contended that appellant was

guilty of telephone harassment and disorderly conduct, but that he did not commit retaliation

because Mr. Finch had not been a witness to anything. The State argued that appellant was

guilty of retaliation: “He threatened him because Arthur Finch called the police. That’s why

he threatened him. Because Arthur Finch called the police.”

       The jury charge tracked the indictment, requiring the jury to find that appellant

threatened to harm Mr. Finch because of his service as a witness before it could convict for
                                                                                       Cada    Page 6

retaliation. During their deliberations, the jury sent out a note, asking for the definition of

the word “witness,” but the judge said that there is no statutory definition of that term, so he

told the jury to consider only the instructions that had already been given. The jury found

appellant guilty of retaliation and assessed his punishment at three years in prison.

           On appeal, appellant argued, inter alia, that the evidence was legally insufficient to

support his conviction for retaliation against a witness because Mr. Finch never testified or

provided any “service” in any proceeding as a “witness.” He relied on Jones v. State,4 in

which this Court held that the statutory term “witness” in the retaliation statute means “one

who has testified in an official proceeding.”5 The court of appeals noted Jones, but held that

use of the word “witness” was an immaterial variance because it was “not a variance in the

manner and means of committing the crime of retaliation.”6 This variance concerned the

statutory status of the protected person, and the court of appeals had previously held that “the

variance between the allegation of one classification of protected person for the victim and

the proof of a different classification of protected person was simply irrelevant.” 7 The court

of appeals concluded that Mr. Finch was “a prospective witness,” the evidence was sufficient

to prove that status, and therefore the evidence was legally sufficient to support his

           4
               628 S.W.2d 51 (Tex. Crim. App. 1980).
           5
               Id. at 55.
           6
        Cada v. State, No. 07-09-00054-CR, ___ S.W.3d __, 2010 WL 2044466 *3 (Tex. App.–
Amarillo May 24, 2010).
           7
               Id. at *4 (citing Hudspeth v. State, 31 S.W.3d 409, 412 (Tex. App.–Amarillo 2000, pet.
ref’d)).
                                                                                  Cada     Page 7

conviction for retaliation.8

                                                II.

A.     Persons Protected Under the Retaliation Statute.

       A person commits the felony offense of retaliation if he intentionally or knowingly

harms or threatens to harm another by an unlawful act in retaliation for the service or status

of another as a public servant, witness, prospective witness, or informant.9 The “service” or

“status” of the complainant as a “public servant,” “witness,” “prospective witness” or

“informant” are all differing elements of the underlying offense.10 Indeed, the retaliation

statute is a good example of the “Chinese Menu” style of setting out the elements of a penal

offense. Section 36.06(a)(1)(A) of the retaliation statute contains eight different elements,

but several of those elements include distinct alternatives, which may or may not be included

in a particular indictment and jury charge. Those elements and alternative elements are:

       (1)       The Defendant

       (2)       a.    intentionally [or]
                 b.    knowingly

       (3)       a.    harms [or]
                 b.    threatens to harm




       8
           Id.
       9
           TEX . PENAL CODE § 36.06(a)(1)(A).
       10
         See Benson v. State, 661 S.W.2d 708, 711, 714 (Tex. Crim. App. 1982) (distinguishing
between the elements of a “witness” and a “prospective witness” in retaliation statute), overruled
on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).
                                                                                 Cada     Page 8

       (4)    another person

       (5)    by an unlawful act

       (6)    a.      in retaliation for [or]
              b.      on account of

       (7)    a.      the service of another [or]
              b.      the status of another

       (8)    as a
              a.      public servant
              b.      witness
              c.      prospective witness [or]
              d.      informant.11

       The indictment and jury charge must contain at least one item from each numbered

element, but it may contain more than one alternative element (e.g., the indictment might list

“a public servant, witness, prospective witness, or informant”12 ). It is well established that



       11
          TEX . PENAL CODE § 36.06(a)(1)(A). Subsection (B) sets out yet another alternative for
the eighth element: “person who has reported or who the actor knows intends to report the
occurrence of a crime.”
       12
           See, e.g., In re B.P.H., 83 S.W.3d 400, 407-08 (Tex. App.–Fort Worth 2002, no pet.)
(State alleged “witness or prospective witness” and was required to prove one or the other);
Hastings v. State, 82 S.W.3d 493, 494-95 (Tex. App.–Austin 2002, pet. ref’d) (indictment
alleged “witness or prospective witness”; evidence was sufficient to prove that defendant
believed complainant whom he threatened could be a potential witness against him); Cover v.
State, 913 S.W.2d 611, 617 (Tex. App.–Tyler 1995, pet. ref’d) (indictment alleged that
complainant was “a witness and a prospective witness”); Cochran v. State, 783 S.W.2d 807, 811
(Tex. App.– Houston [1st Dist.] 1990, no pet.) (retaliation indictment alleged that complainant
was an “informant” as well as a “prospective witness”; because evidence showed that the
complainant was an “informant,” there was no fatal variance between the indictment and the
proof even if evidence showed that the complainant was also a “witness” rather than a
“prospective witness” as alleged); Gibson v. State, 769 S.W.2d 706, 709-10 (Tex. App.–Eastland
1989) (indictment alleged that complainant was “a prospective witness and informant”), rev’d on
other grounds, 803 S.W.2d 316 (Tex. Crim. App. 1991).
                                                                                   Cada     Page 9

the State may plead in the conjunctive and charge in the disjunctive.13 Thus an indictment

might contain allegations 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.14

       A central purpose of the retaliation statute is to encourage a specified class of

citizens–which includes public servants, witnesses, prospective witnesses, and informants–

to perform vital public duties without fear of retribution. “Those public duties may include

reporting criminal activities, testifying in official proceedings, or cooperating with the

government in a criminal investigation.”15 The Legislature keeps increasing that statutorily

protected class to ensure that all of those who participate in the administration of justice may

do so without fear of harm or physical injury. In Jones v. State,16 this Court held that the


       13
          See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); see also Hunter v.
State, 576 S.W.2d 395 (Tex. Crim. App. 1979) (State could allege mental states of “intentionally
or knowingly” in indictment; holding that disjunctive pleadings were proper, and overruling all
previous cases to the contrary).
       14
          See Kitchens, 823 S.W.2d at 258 (“[i]t is appropriate where the alternate theories of
committing the same offense are submitted to the jury in the disjunctive for the jury to return a
general verdict if the evidence is sufficient to support a finding under any of the theories
submitted”); see also Bagheri v. State, 119 S.W.3d 755, 762 & n.5 (Tex. Crim. App. 2003) (State
may allege alternate theories of intoxication in DWI information and “when the trial court
submits a jury charge setting out alternate means of committing an offense (or alternate ways to
prove a specific element), the evidence is sufficient to support a general verdict of guilty of the
statutory offense if the evidence is sufficient to prove any one of those alleged means.”).
       15
            Morrow v. State, 862 S.W.2d 612, 615 (Tex. Crim. App. 1993).
       16
            628 S.W.2d 51 (Tex. Crim. App. 1980).
                                                                                    Cada      Page 10

word “witness” in the retaliation statute refers only to a person who has already testified in

some official proceeding.17 This holding left a large number of citizens who had or were

expected to assist the criminal and civil justice systems outside the scope of protection.

Therefore, in 1983, the Legislature amended the retaliation statute to include a “prospective

witness” within the protected class, and, in 1989, it extended protection to “a person who has

reported the occurrence of a crime.”18           The Legislature again expanded the statutory

protections afforded this class of citizens by adding “or one who the actor knows intends to

report” to the phrase “a person who has reported the occurrence of a crime” in 1993. Finally,

in 1997, it added the alternative of “status,” as well as “service,” as a member of any one of

the protected categories.19 Thus, “the legislature [has] attempted to account for every

category of person who might possess information regarding criminal activity which may

lead to the apprehension of a criminal offender. We can conceive of no existing gap in the

persons protected under section 36.06.” 20

       It is not always easy to categorize a particular citizen who has been subject to

retaliation into one specific box (such as “status as a prospective witness”) to the exclusion

of all other categories (such as “service as an informant”). But, as this Court has previously




       17
            Id. at 55.
       18
            See Acts 1983, 68th Leg., ch. 558, § 4; Acts, 1989, 71st Leg., ch. 557, § 1.
       19
            See Acts 1993, 73rd Leg., ch. 900, § 1.01; Acts, 1997, 75th Leg., ch. 239, § 1.
       20
            Morrow, 862 S.W.2d at 615.
                                                                               Cada     Page 11

noted, “[w]hile there may be some overlap among the categories of persons listed, each

category is nevertheless distinct.” 21

       In Morrow v. State, this Court explained the distinction between some of the various

categories. We said that an “informant” is defined in the Penal Code as “a person who has

communicated information to the government in connection with any governmental

function,”22 but we noted that “[t]here are a number of reasons an informant would not be

considered a prospective witness.”23 For example, an informant may not have first-hand

knowledge of a crime; he may not have revealed his identity when he reported something to

the government; the government may not wish to divulge his identity; the informant may not

have reported an actual crime because “[i]nformants often communicate information about

criminal activity that is about to occur, rather than criminal activity that has already

occurred.”24 Or he could report “suspicious” activities which may or may not turn out to be

a crime. Similarly, a person who is a “prospective witness” may not necessarily be a person

who has reported the occurrence of a crime to government, or he may not have said anything

at all to governmental agents.25 Thus, when there is overlap or uncertainty concerning the

status or service of a particular person within the protected general class, the State may plead


       21
            Id. at 614.
       22
            TEX . PENAL CODE § 36.06(b)(2).
       23
            Morrow, 862 S.W.2d at 614.
       24
            Id. at 614-15.
       25
            Id.
                                                                                 Cada     Page 12

alternatives in the indictment.26

B.     Sufficiency of the Evidence and Material Variances.

       Due process requires that the State prove, beyond a reasonable doubt, every element

of the crime charged.27 We measure the sufficiency of the evidence by the elements of the

offense as defined in a hypothetically correct jury charge.28 Such a charge is one that

“accurately sets out the law, is authorized by the indictment, does not unnecessarily increase

the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.” 29

       But, in Gollihar v. State, we held that, under state law, the hypothetically correct jury

charge need not incorporate allegations that give rise to immaterial variances.30 In Gollihar,

the indictment for theft of a go-cart stated that the go-cart was “Model 136202,” but the

State’s evidence showed that its model was 136203. That variance was immaterial because

the State did not have to plead any model or serial number to describe the property stolen and

there was no suggestion that the defendant was surprised or harmed by the evidence offered


       26
           See, e.g., Webb v. State, 991 S.W.2d 408, 417 (Tex. App.– Houston [14th Dist.] 1999,
pet. ref’d) (State had pled, and therefore had to prove, that the defendant “intentionally or
knowingly intended to harm [complainant] by an unlawful act in retaliation for or on account of
her service as a prospective witness, as a person who has reported the occurrence of a crime, or a
person who [defendant] knew intended to report the occurrence of the crime.”).
       27
            Jackson v. Virginia, 443 U.S. 307, 313 (1979).
       28
            Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
       29
            Id.
       30
            Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001).
                                                                                     Cada      Page 13

at trial.31 The model number was not an element of the offense, and the defendant’s guilt or

innocence of the theft charge did not depend upon the specific model of the go-cart. Further,

there was no suggestion that the defendant possessed numerous go-carts with different model

numbers, or that he was misled about which specific go-cart the State would prove he stole.32

       The focus of the inquiry under both Malik and Gollihar “is upon the elements of the

offense.”33 And, of course, before something may be an element of the offense in the

hypothetically correct jury charge, it must be “authorized by the indictment.” 34 For example,

if the penal offense sets out various statutory alternatives for the distinct elements of the

crime, the jury charge may contain only those alternative elements that are actually alleged




       31
            Id. at 258.
       32
             Id. (“There is no indication in the record that appellant did not know what cart the State
was claiming he stole or that appellant was misled by the allegation or surprised by the proof at
trial. . . . Appellant did not attempt to raise a defense that he did not take the cart alleged or that
the State had misidentified the allegedly stolen property.”).
       33
          Id. at 258 (Keller, P.J., concurring). Addressing what is meant by a hypothetically
correct charge being “authorized by the indictment,” the majority in Gollihar explained that

       when the controlling statute lists several alternative acts intended by the defendant
       and the indictment limits the State's options by alleging certain of those intended
       acts, the hypothetically correct charge should instruct the jury that it must find one
       of the intended acts alleged in the indictment. This is the “law” as authorized by
       the indictment. Similarly, when the statute defines alternative methods of manner
       and means of committing an element and the indictment alleges only one of those
       methods, “the law” for purposes of the hypothetically correct charge, is the single
       method alleged in the indictment.

Id. at 254-55 & n. 20 (footnotes and citations omitted).
       34
            Id. at 258 (Keller, P.J., concurring).
                                                                                    Cada     Page 14

in the indictment.35    And the sufficiency of the evidence is measured by the specific

alternative elements that the State has alleged in the indictment. 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.36 That is what federal due process and Jackson v.

Virginia require–proof beyond a reasonable doubt to support every element of the offense

alleged.37 The Texas “immaterial variance” law as set out in Gollihar does not apply to the

specific statutory elements alleged in the indictment.38


       35
          Id. (discussing Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000)). In Curry, the
indictment alleged only one of the two statutory ways to “abduct” someone–by using or
threatening to use deadly force. Curry, 30 S.W.3d at 405. The State therefore could not change
or expand its theory of liability to include the second statutory definition of “abduct” in the jury
charge or for purposes of reviewing the sufficiency of the evidence. Id.
       36
          See Planter v. State, 9 S.W.3d 156, 159 (Tex. Crim. App. 1999) (holding that the State
was restricted to proof of the one statutory theory of solicitation of capital murder that it had
alleged; evidence insufficient to prove that theory, even though it was sufficient to prove the
unpled statutory alternative); see also Fuller v. State, 73 S.W.3d 250, 255-56 (Tex. Crim. App.
2002) (Keller, P.J., concurring) (stating that the Gollihar “variance” doctrine does not apply to
statutorily-enumerated elements); Macias v. State, 136 S.W.3d 702, 705-06 (Tex.
App.–Texarkana 2004, no pet.) (fatal variance existed between indictment and proof on charge of
unlawful possession of a firearm by a felon; indictment tracked language only of first subsection
of statute, which concerned possessing firearm within five years of release from confinement, not
second subsection, concerning possessing firearm at location other than residence, and evidence
did not show that defendant’s possession of pistol was within five years after his release from
probation; evidence insufficient to support conviction).
       37
          Jackson v. Virginia, 443 U.S. 307, 313-14 (1979) (“[T]he due process standard
recognized in Winship constitutionally protects an accused against conviction except upon
evidence that is sufficient fairly to support a conclusion that every element of the crime has been
established beyond a reasonable doubt.”).
       38
        See, e.g., Smith v. State, 135 S.W.3d 259, 262 (Tex. App.–Texarkana 2004, no pet.)
(“The Gollihar construct, therefore, does not apply to our analysis of [the defendant’s] Jackson v.
                                                                                 Cada     Page 15

                                                III.

       In the present case, the State alleged that appellant retaliated against Mr. Finch “on

account of the service of the said Arthur Finch as a witness.” The State, the defense, and the

court of appeals all agree that there was not a scintilla of evidence that Mr. Finch provided

any service as a “witness” as that statutory element was defined in Jones. Under Jones, the

State was required to prove that Mr. Finch “has testified in an official proceeding” and that

appellant retaliated against him on account of, or because of, that service as a witness in an

official proceeding.39      Thus, appellant properly requested a directed verdict after the

completion of the State’s case, and he properly argued on appeal that the evidence was

legally insufficient to prove an essential element of the offense under Jackson v. Virginia.

Under Jackson, he was entitled to an acquittal.

       However, both the State and the court of appeals recognized that Mr. Finch is clearly

a member of the general class of citizens that the Legislature intended to protect against

retaliation. He saw a car parked outside the Allsup’s for a lengthy period of time when it was

late at night and he was the only clerk in the store. He became worried and suspicious that

whoever was in that car might be planning a robbery. So he did what we want concerned

citizens to do: he called the police and reported his suspicions. He did not see a crime, but


Virginia evidentiary sufficiency claim” concerning proof of the statutory elements alleged;
indictment for attempted sexual assault alleged that defendant attempted to penetrate victim’s
sexual organ, thus proof that he attempted to penetrate the victim’s mouth and anus was
insufficient, under Jackson, to prove the alleged element).
       39
            Jones v. State, 628 S.W.2d 51, 55 (Tex. Crim. App. 1980).
                                                                                  Cada     Page 16

he was worried that one might be in the offing. At that point in time, Mr. Finch was an

“informant” for purposes of the retaliation statute. He “communicated information to the

government in connection with [a] governmental function.”40 Furthermore, that is precisely

why appellant twice called Mr. Finch at the Allsup’s later that evening and threatened him.

Appellant told Mr. Finch that he was going to “get back” at him because Mr. Finch had

called the police, and, as a result, appellant’s wife was arrested on an unrelated open warrant.

In his second phone call, appellant told Mr. Finch that he was going to get back at Mr.

Finch’s family because appellant’s wife had gone to jail because Mr. Finch had called the

police. The State was exactly correct when it argued to the jury that appellant “threatened

him because Arthur Finch called the police. That’s why he threatened him. Because Arthur

Finch called the police”–not because Mr. Finch had testified against him as a witness in an

official proceeding, not because Mr. Finch might be a prospective witness at some future trial

or proceeding, but because Mr. Finch had already served as an informant by calling the




       40
           TEX . PENAL CODE § 36.06(b) (“In this section, ‘informant’ means a person who has
communicated information to the government in connection with any governmental function.”);
see Morrow v. State, 862 S.W.2d 612, 615 (Tex. Crim. App. 1993) (“Informants often
communicate information about criminal activity that is about to occur, rather than criminal
activity that has already occurred.”); Sewell v. State, 629 S.W.2d 42, 44 (Tex. Crim. App. 1982)
(burglary victim who called police and reported that defendant committed burglary was an
“informant” for purposes of retaliation statute; she communicated information to the police “in
connection with their function of ferreting out crime”); Jones v. State, 628 S.W.2d 51, 57 (Tex.
Crim. App. 1981) (op. on reh’g) (stating that a person who “perceives an event and relays the
information gained to the police” qualifies as an “informant” under the retaliation statute);
Cochran v. State, 783 S.W.2d 807, 811 (Tex. App.–Houston [1st. Dist.] 1990, no pet.) (for
purposes of retaliation statute, “complainant acted as an informant by reporting to the police the
facts necessary to convict appellant for retaliation the first time”).
                                                                                      Cada     Page 17

police. Unfortunately, that is not what the State alleged in its indictment. Instead of pleading

the correct element of “informant,” or pleading several of the statutory alternatives (“witness,

prospective witness, or informant” or “person who has reported or who the actor knows

intends to report the occurrence of a crime”) and then including only those for which there

was some evidence given to the jury for its consideration, the State alleged a single element

for which there was no evidence.

        The court of appeals held that this was an immaterial mistake or variance because the

evidence was sufficient to show that Mr. Finch was a “prospective witness” and appellant

“has never contended that the variance at issue resulted in an inability to adequately mount

a defense.”41 First, the evidence is not sufficient to show that appellant retaliated against Mr.

Finch because of his service (or even his status) as a prospective witness.42 There is no

evidence to suggest that appellant had any notion that Mr. Finch would perform any witness-

type services in the future, and that is not why he threatened him. The evidence shows that

appellant threatened him solely because of a past, completed act–calling the police. Second,




        41
          Cada, 2010 WL 2044466 at *4. As to this latter assertion, appellant’s whole and sole
defense was that he did not retaliate against Mr. Finch for any service as a witness. This was his
argument in opening, in his motion for a directed verdict, and in his closing statement. It was the
sole theory of defense. Indeed, this issue was also of concern to the jury because it sent out a
note requesting a definition of the term “witness” as it is used in the jury charge. The meaning of
the statutory word “witness” was apparently material to the jury.
        42
          Indeed, although it is within the realm of possibility that Mr. Finch might have the
“status” of a prospective witness if the circumstances surrounding the arrest of Mrs. Cada on an
open warrant were ever litigated, it is not particularly likely, as his only role was to call the police
about a suspicious car whose occupants he never saw.
                                                                               Cada     Page 18

even 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. Under Jackson, the State must prove the statutory

elements that it has chosen to allege, not some other alternative statutory elements that it did

not allege. The variance construct of Gollihar and Fuller43 simply does not override the

constitutional due-process requirement that the State prove, beyond a reasonable doubt, every

statutory element of the offense that it has alleged.

       We therefore reverse the judgment of the court of appeals and enter an acquittal

because the evidence was legally insufficient to prove that appellant retaliated against Mr.

Finch “on account of his service as a witness.”


Delivered: February 9, 2011
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       43
            Fuller v. State, 73 S.W.3d 250, 255-56 (Tex. Crim. App. 2002).
