Cada v. State
334 S.W.3d 766
| Tex. Crim. App. | 2011Background
- Cada was charged with third-degree felony retaliation for threatening a witness in retaliation for the complainant's service as a witness; on appeal, the court held the indictment alleged only that the complainant was a witness, but evidence showed he was a prospective witness or informant; the court of appeals found the variance immaterial and upheld the conviction; the Texas Court of Criminal Appeals held the variance material and acquitted Cada; the dispositive issue is whether the State proved the exact pleaded element beyond a reasonable doubt under Jackson v. Virginia.
- The trial record showed Finch testified as a jailer and informant-like figure by reporting suspicious activity to the police; Cada called Finch twice and threatened him because Finch had reported the incident and caused Cada’s wife to be arrested; the jury was charged strictly on the indictment’s “witness” element.
- The majority explains that retaliation protects several categories (public servant, witness, prospective witness, informant, or someone who has reported a crime) and that these are distinct elements that may be pleaded in the conjunctive/disjunctive form; Gollihar does not permit expanding the theory beyond what is pleaded when assessing sufficiency; the State cannot prove an unpleaded element.
- The Court reverses the court of appeals and acquits Cada, finding the evidence legally insufficient to prove retaliation on account of the complainant’s service as a witness.
- The decision clarifies that a variance between pleading a protected status (witness) and proof of a different protected status (informant or prospective witness) is material and requires acquittal when the pleaded element is not established.
- Procedural posture: direct appeal from Texas Court of Appeals (Amarillo) affirming a conviction; Court of Criminal Appeals reviews under due process and Jackson v. Virginia standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Materiality of variance between pleading 'witness' and proof of 'prospective witness' or 'informant' | Cada argues variance immaterial under Gollihar; evidence showed prospective witness/ informant. | State must prove the exact pleaded element; variance cannot expand liability. | Material variance; acquittal required. |
| Role of Gollihar in defining hypothetically correct charge vs. elements actually pled | State may rely on general sufficiency under Gollihar. | Gollihar does not allow unspecific elements to substitute pleaded elements. | Gollihar does not override due-process requirement to prove pleaded elements. |
| Whether Finch’s status as informant vs. witness was adequately pleaded and proven | Indictment alleged 'witness'; proof suggested informant/prospective witness. | The protected class includes multiple categories; overlap allows variance. | Not adequately pleaded; acquittal. |
| Effect of Jackson v. Virginia on elements when only one pleaded element is proven | Prosecution proved some protected-status involvement; sufficiency should be measured broadly. | Jackson requires proof of all pleaded elements; cannot rely on unpled alternatives. | Jackson requires proof of the pleaded specific element; acquittal. |
Key Cases Cited
- Jones v. State, 628 S.W.2d 51 (Tex.Crim.App. 1980) (defines 'witness' as one who has testified in an official proceeding)
- Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App. 2001) (immaterial variances do not alter elements actually pled)
- Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997) (disjunctive pleading; alternative theories permitted in indictment)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (due process requires evidence beyond a reasonable doubt for each element)
- Morrow v. State, 862 S.W.2d 612 (Tex.Crim.App. 1993) (distinguishes informant vs. prospective witness for retaliation statute)
- Gollihar v. State (cited within text), 46 S.W.3d 243 (Tex.Crim.App. 2001) (as above)
- Kitchens v. State, 823 S.W.2d 256 (Tex.Crim.App. 1991) (permitting disjunctive pleading for alternative theories)
- Planter v. State, 9 S.W.3d 156 (Tex.Crim.App. 1999) (limits on statutory theory proof)
- Curry v. State, 30 S.W.3d 394 (Tex.Crim.App. 2000) (illustrates elements with alternative means of abduction)
- Fuller v. State, 73 S.W.3d 250 (Tex.Crim.App. 2002) (discusses Gollihar variance and statutory elements)
- Sewell v. State, 629 S.W.2d 42 (Tex.Crim.App. 1982) (informant context in retaliation)