
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-00-00399-CR



Robert Edward Hastings, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 000255, HONORABLE FRED A. MOORE, JUDGE PRESIDING







DISSENTING OPINION





	In his first point of error, Hastings insists that the evidence is insufficient to support
the jury's verdict.  Here, it was alleged that Hastings "intentionally and knowingly threatened to 
harm, in person, another, to-wit: Jose Viegra, by an unlawful act, to-wit: threats of assault and bodily
injury, in retaliation for and on account of the service of the said Jose Viegra as a . . . prospective
witness."  See Tex. Pen. Code Ann. § 36.06(a)(1)(A) (West Supp. 2002).  As the majority notes, the
State admits that it should have charged Hastings with intentionally and knowingly threatening harm
against Viegra, an ATF agent, on account of his being a public servant rather than on account of his
being a prospective witness.  That scenario, however, is not before us.  Where the State alleges only
one of several statutory alternative manners of committing an offense, the defendant may only be
convicted based on the manner that is charged.  See Gollihar v. State, 46 S.W.3d 243, 254-55 (Tex.
Crim. App. 2001).  

	To convict the appellant based on the actual indictment, and not on a hypothetically
more accurate indictment that should have been used, the State must have proved that (1) Hastings
threatened Viegra, (2) Viegra was a prospective witness, and (3) Hastings threatened Viegra because
Viegra was a prospective witness.  See Tex. Pen. Code Ann. § 36.06(a)(1)(A); Angelo v. State, 977
S.W.2d 169, 174 (Tex. App.--Austin 1998, pet. ref'd).  There is no question that the evidence is
legally sufficient to establish that Hastings threatened Viegra.  I also agree that the evidence is
sufficient, although barely, to show that Viegra was a prospective witness.  What the evidence fails
to show, however, is that Hastings threatened Viegra "in retaliation for" or "on account of" Viegra's
service as a prospective witness.  Thus, I would reverse Hastings's conviction and render a judgment
of acquittal.
	As the majority notes, Hastings's own testimony, along with the other evidence, when
viewed in the light most favorable to the prosecution, would allow the jury to rationally find, beyond
a reasonable doubt, that Hastings knew he was committing a criminal offense by possessing
handguns and a shotgun while he was under a protective order.  The jury could also rationally
conclude that when Hastings threatened Viegra, Hastings anticipated Viegra might be a prospective
witness against him in a future criminal prosecution. 
 However, the statute requires more than that appellant threatened Viegra and that
appellant anticipated Viegra was a prospective witness.  The State must prove that the threat was
made "in retaliation for or on account of" Viegra's status as a prospective witness.  Tex. Pen. Code
Ann. § 36.06(a)(1)(A); Angelo, 977 S.W.2d at 174 (noting that "a plain reading of the statute
requires the crime to have a retributory nature").  On this point, the evidence, viewed in the light
most favorable to the prosecution, is legally insufficient.  As noted above, the State presented no
evidence that would support a rational finding that appellant threatened Viegra because appellant
expected or anticipated that Viegra would be a witness against him in the future.  Appellant's
testimony similarly fails to provide support for such a finding.
 Hastings's testimony does not directly reflect a retributory motive, nor does it support
an inference of retribution.  The fact that Viegra was a prospective witness does not mean that
appellant's threats were directed at Viegra for that reason.  The Eighth Court of Appeals has
addressed this issue and its analysis is instructive.  See In re M.M.R., 932 S.W.2d 112, 114-15 (Tex.
App.--El Paso 1996, no pet.).  In M.M.R., the court held that the evidence was legally insufficient
to support a conviction for retaliation against a public servant.  Id. at 115.  The court noted that the
evidence was sufficient to show that M.M.R. struck the juvenile detention officer while trying to
escape the officer's grasp and attack another juvenile.  Id.  The court held, however, that this alone
did not establish the retributory element necessary to support a conviction.  Id.  Likewise, evidence
that Hastings knew he had committed an offense and that he threatened to cause physical injury to
Viegra, without more, is insufficient to support the retributory element required by section 36.06.
	By holding the evidence sufficient, this Court transforms any arresting police officer
into a prospective witness.  I acknowledge that the court of criminal appeals has stated that inclusion
of a person in one of the categories covered under section 36.06(a)(1)(A) does not necessarily
preclude that person's inclusion in one of the other categories.  Morrow v. State, 862 S.W.2d 612,
614 (Tex. Crim. App. 1993).  However, the court also noted that while there may be some overlap
between the categories, they are nevertheless "distinct."  Id.  To infer that appellant threatened
Viegra as a prospective witness based on the evidence in the record would blur the lines between
these distinct categories.  To draw the inference would equate threatening an arresting police officer
with threatening a prospective witness.
	Furthermore, to infer retributory intent solely from Viegra's status as a prospective
witness would effectively read "in retaliation for or on account of the service of another" out of the
statute.  To hold the evidence sufficient in this case would be to say that it is enough that the State
prove that a threat was made and that it was directed towards a prospective witness.  In essence, it
would no longer be necessary for the State to prove the threat was made on account of the anticipated
testimony or in retaliation for one's being a witness.  Such a result is contrary to this Court's analysis
of the retaliation statute.  See Angelo, 977 S.W.2d at 174 (holding that retaliatory intent is an element
of section 36.06).  
	The State notes that intent may be inferred from an accused's acts, words, or conduct. 
See, e.g., Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982); Barnes v. State, 62 S.W.3d
288, 298-99 (Tex. App.--Austin 2001, pet. filed).  While this is unquestionably true regarding
"intent" as defined in section 6.03(a) of the Code, I do not believe that this principle is applicable
as to the retaliatory element of section 36.06(a)(1).  There is a fundamental difference between
"intent" and "retribution."  As stated in section 6.03(a), "a person acts . . . with intent . . . with
respect to the nature of his conduct or to a result of his conduct when it is his conscious objective
or desire to engage in the conduct or cause the result."  Tex. Pen. Code Ann. § 6.03(a) (West 1994). 
It is appropriate in this circumstance to infer intent from the accused's acts, words, or conduct
because the question is whether the accused intended the conduct itself (or the results thereof).  
	In the case of the retaliation element of section 36.06(a), however, the mental element
is qualitatively different.  We are not inquiring as to whether the appellant intentionally or knowingly
threatened another person, or even whether the appellant intentionally or knowingly caused the other
person to feel threatened.  Rather, our inquiry concerns the stimulus that led the accused to
intentionally or knowingly threaten another; that is, the State must show that the threat was done on
account of or in retaliation for something.  This element requires that the State prove not whether
the accused intended to threaten the other person but why the accused engaged in such activity. 
Under the facts and circumstances presented in this case, one cannot infer a retaliatory purpose to
an accused's threat against another person based solely upon the fact that the threat was made to a
prospective witness.
	Again, had Hastings been indicted and convicted for retaliation against a public
servant, this Court would be presented with a different question.  Because he was mistakenly
indicted for retaliation against a prospective witness, this Court should reverse Hastings's conviction
due to legally insufficient evidence and render a judgment of acquittal.
	I also dissent from the majority's holding that prospective witness status should be
determined from the perspective of a reasonable person, rather than from the perspective of the
accused.  Moreover, because Hastings failed to properly and timely request the trial court to define
prospective witness in the jury charge, this discussion, which I believe to be flawed, is unnecessary
dicta.
	For these reasons, I respectfully dissent.
 
 
  
						Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Dally*
Filed:   April 25, 2002
Publish
























*	Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.  See
Tex. Gov't Code Ann. § 74.003(b) (West 1998).
