OPINION
Aрpellant, Chike Kodilinye Nzewi, was convicted of the state jail felony offense of tampering with a witness. Appellant contends the evidence is legally insufficient to support his conviction and the trial court abused its discretion by including erroneous language in the jury charge, consolidating his case with another defendant’s case, and sustaining the State’s objection to appellant’s jury argument. We affirm.
*831 I. BACKGROUND
In July 2007, Emeka Michael Uyamadu was preparing to board an airplane to Nigeria when several undeclared computers were discovered in his luggage. Uya-madu agreed to leave the computers at the airport during his trip and assured officers that his secretary would provide invoices to prove they were purchased. While Uyamadu was in Nigeria, officers learned that two of the computers had been stolen in June 2007.
When Uyamadu returned, officers interviewed him rеgarding the computers. Uyamadu stated that he purchased the computers at internet auctions during May 2007. He further stated that he had limited computer knowledge, and his friend, appellant, inspects the computers he purchases. Even after officers informed Uya-madu that the computers were stolen in June 2007, Uyamadu maintained he last purchased computers in May 2007. Appellant told the officers that he stored all of his computers at one of his offices and consented to a search of the office. At first, appellant claimed he did not have a spare key to the office; then, he gave officers a wrong key, and they were unable to enter appellant’s office until he provided the correct key.
Uyamadu was charged with theft of the computers. Several months later, officers received information that prompted them to initiate а new investigation regarding whether Uyamadu and appellant had committed witness tampering. During the investigation, officers discovered that appellant contacted his former girlfriend, Sabrina Belfon, and requested that she “take the charge” of theft for Uyamadu in exchange for money. Working with law-enforcement officers, Belfon agreed to wear concealed audio-and video-recording equipment during a May 17, 2008 meeting with appellant and Uyamadu. During the meeting, described in detail below, Uya-madu told Belfon that she may be required to testify falsely at his trial.
Appellant and Uyamadu were indicted for tampering with a witness. The trial court consolidated the witness-tampering charge against appellant and the witness-tampering and theft charges against Uya-madu into a single trial. A jury convicted appellant and assessed punishment at two years’ confinement. 1
II. Legal Sufficiency
In his first issue, appellant argues that the evidence is legally insufficient to support his conviction for witness tampering.
A. Applicable Law and Standard of Review
As charged in the indictment, “[a] person commits [the offense of tampering with a witness] if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding ... to testify falsely.” Tex. Penal Code Ann. § 36.05(a)(1) (West 2011).
When reviewing sufficiency of the evidence, we view all of the evidence and any reasonable inferences in the light most favorable to the verdict and determine whether any rational fact finder could have found the elements of the offense beyond a reasonable doubt.
Gear v. State,
Circumstantial evidence is as probative as direct evidence in establishing guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.
Hooper v. State,
Sufficiency of the evidence is measured by elements of the offense as defined in a hypothetically correct jury charge, which accurately explains 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.
Malik v. State,
B. Analysis
1. Evidence regarding “prospective witness”
Appellant first argues that no evidence supports a finding that Belfon was a “witness” or “prospective witness” within the meaning of section 36.05. Resolution of this issue requires interpretation of the Penal Code. Statutory interpretation is a questiоn of law we review
de novo. Williams v. State,
Acknowledging that “witness” and “prospective witness” are not defined in the Penal Code, appellant cites cases in which the Court of Criminal Appeals analyzed these terms as used in the retaliation statute of the Penal Code.
See Cada v. State,
Appellant argues that the purpose of the witness-tampering statute is similar — to prevent an individual from tampering with witnesses and prospective witnesses who possess inculpatory information and may be required to testify on behalf of the government. According to appellant, Bel-fon was not a prospective witness, as the term is used in the witness-tampering statute, because the State did not intend to present her as a witness. In support of this argument, appellant cites a witness-tampering case in which the defendant tampered with one of the State’s prospective witnesses.
See Arnold v. State,
Under section 36.05, a person commits witness tampering by soliciting a witness or prospective witness in an official proceeding “(1) to testify falsely; (2) to withhold any testimony, information, document, or thing; (3) to elude legal process summoning him to testify or supply evidence; (4) to absent himself from an official proceeding to which he has been legally summoned; or (5) to abstain from, discontinue, or delay the prosecution of another.” Tex. Penal Code Ann. § 36.05(a). Admittedly, subsections (2) through (5) refer to
preventing
someone from presenting testimony or evidence. In the context of a criminal trial, these subsections would most likely apply to situations in which a person tampered with a State witness.
See, e.g., Arnold,
However, subsection (1) broadly covers any witness or prospective witness solicited “to testify falsely.” Tex. Penal Code Ann. § 36.05(a)(1). Nothing in the statute indicates that this section applies only to State witnesses, nor has any court construed the language so narrowly. Furthermore, “official proceeding” as used in the Penal Code means “any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant.” Id. § 1.07(a)(33) (West 2011). Thus, the witness-tampering statute is not limited to witnesses or prospective witnesses who may be called by the State to give testimony during criminal trials. Construing the statute under the *834 plain-meaning rule, we conclude that subsection (1) refers to soliciting any witness or prospective witness in an official proceeding “to testify falsely,” including a witness or prospective witness for the defendant.
2. Evidence regarding appellant’s intent
Appellant next contends no evidence supports a finding that he intended to influence a prospective witness in an official proceeding to testify falsely. As charged, the jury was authorized to convict appellant as the primary actor or as a party to the offense.
Appellant and Belfon were involved in a sexual relationship which ended before May 2007. Belfon has an extensive criminal history, and while on probation, surrendered to authorities for committing Federal Emergency Management Agency (“FEMA”) fraud. While Belfon was released on bond during pendency of the FEMA-fraud case, she “would call [appellant] and ask him for money.” During one conversation, appellant told Belfon “he knew how [she] could make sоme money.” Although she initially avoided discussions about appellant’s plan, he persisted, and Belfon eventually agreed to meet with him.
Belfon provided the following testimony regarding her meeting with appellant. Belfon met appellant in a parking lot where he “told [her] that he wanted [her] to agree to take a charge for some stolen property.” Appellant explained that his friend — whom Belfon later learned was Uyamadu — had been charged for the theft of two computers but the charge “wasn’t a really big deal.” Appellant told Belfon he wanted her to provide a “statement” to Uyamadu’s criminal defense attorney before Uyamadu’s upcoming court hearing and trip. Appellant also told Belfon, “[You] can make money” and “put [your] own price on it.” Belfon agreed to meet with Uyamadu to discuss the plan. She also told appellant that she wаnted at least $3,000 if she were to claim responsibility for the computers. At trial, Belfon testified that she “needed some money” and was “inclined to come into court or put in an affidavit [she was] responsible.” Belfon also testified that appellant was not merely innocently helping a friend “because [appellant] was the one [who gave her] the rundown of what was going on.”
At some point prior to meeting with Uyamadu, Belfon was informed that the stolen computers belonged to the government. Because of her criminal history, Belfon decided not to claim responsibility for stealing government computers. Instead, she informed law enforcement officers about appellant’s plan. After speaking with officers, Belfon scheduled a meeting with appellant and Uyamadu for May 17, 2008.
On May 17, officers outfitted Belfon with a concealed video camera and microphone. Belfon then went to a restaurant where she intended to meet appellant. Belfon waited at the restaurant for forty minutes before appellant arrived. Belfon called appellant while she was waiting, and appellant said he wanted her to go to another location after meeting with Uyamadu.
When appellant arrived, he and Belfon entered to Uyamadu’s office. There, Bel-fon spoke with Uyamadu for approximately thirty minutes. Belfon began by stating that appellant had told her “pretty much everything.” She and Uyamadu then discussed the charges filed against him, and Belfon’s role in claiming responsibility for the stolen computers. Uyamadu said the charges against him “weren’t that strong” but Belfon would likely be charged with theft after claiming she delivered the computers to Uyamadu. Uyamadu assured Belfon he would help her retain an attorney if she was charged with theft. Uya-madu instructed Belfon to tell officers that she delivered the computers to Uyamadu’s *835 other office located in a separate area of Houston (the “other office”). Although appellant did not speak often during this part of the meeting, he and Uyamadu told Bel-fon that she should familiarize herself with Uyamadu’s other office. Accordingly, they rode in appellant’s vehicle to the other office. Appellant drove while Uyamadu sat in the front passenger seat and Belfon sat in the back seat.
During the drive, Belfon asked Uyama-du if he was “taking [his case] to trial.” Uyamadu responded, “No,” we are “postponing it.” He also explained that he set his case “for disposition” and that it will next be set “for plea.” Belfon inquired about her payment, and Uyamadu stated she would be paid $3000 in installments, receiving $1000 “down” and the rest later. Belfon also expressed concern that police would aggressively interrogate her after she claimed responsibility for the computers. Uyamadu instructed her to tell police that she has limited knowledge regarding computers, did not personally check the subject computers, and delivered them to Uyamadu.
When they arrived at the other office, they entered for a brief visit. Subsequently, they walked to a nearby restaurant. After eating, they returned to the other office, and Uyamadu paid Belfon $1000 in cash. Belfon and appellant exited, and Belfon gave appellant $500, pursuant to their agreement that appellant would receive a fee for introducing her to Uyama-du. The trio then returned to appellant’s vehicle and rode in the same seats they previously occupied. Although the video recording admitted at trial does not contain this portion of the meeting, the audio was preserved. It is unclear exactly what transpired; however, the voices and sounds are consistent with the following events.
Belfon asked when would “the attorney represent everything to the court,” apparently inquiring when Uyamadu’s attorney would attempt to persuade the trial court to dismiss the charges against Uyamadu. Uyamadu explained that his attorney would speak with Belfon then confer with the prosecutor. Sounds on the recording are indicative of someone parking the vehicle and opening a door. It is unclear whether someone exited at this time. However, “banging” sounds are audible which are consistent with someone pumping gasoline into the vehicle’s fuel tank. During the earlier drive to the other office, all three persons discussed the gasoline gauge showing “E.”
Uyamadu then told Belfon that she might be required to speak with the prosecutor. Belfon asked whether her role in the scheme would end before Uyamadu left for his trip. Uyamadu said “no” because his trip was scheduled to begin the following Tuesday. Appellant then said Uyamadu would return before the end of June, and Uyamadu agreed. At this point, sounds preserved on the audio recording are indicative of someone opening a vehicle door. Again, “banging” sounds consistent with pumping gasoline into the vehicle are audible.
Uyamadu then stated that he would meet with the prosecutor at the June 2008 hearing and attempt to convince him to “drop the charges.” However, Uyamadu acknowledged that the prosecutor could decide to proceed to trial. Uyamadu said he did not think the case would proceed to trial, but if it did, Belfon “would have to make [her] statement, [she] would have to go to court.”
2
After Uyamadu made this
*836
statement, sounds audible on the recording are consistent with someone opening a door, starting the vehicle, and fastening a seat belt. Based on the voices and sounds, the jury was unable to determine whether appellant remained in the vehicle during this part of the discussion — any such conclusion would be merely speculative.
See Hooper,
Subsequently, appellants drove to a mall parking lot where Belfon exited the vehicle. Shortly thereafter, officers arrived and retrieved the recording equipment from Belfon. Over the next month, appellant called Belfon several times. She did not answer his calls but informed officers that appellant was attempting to contact her. When she finally called appellant, the conversation was audio recorded. During the conversation, appellant and Belfon agreed that she would meet him the following day to sign a “note” fоr Uyamadu. Appellant also suggested that Belfon would receive more money.
During cross-examination, Belfon admitted that the majority of the recording pertained to her dialogue with Uyamadu. She testified that “sometimes [appellant] was listening to the conversation and sometimes he was doing other things,” including using his phone and a computer or simply not paying attention. Belfon agreed she “can’t speak for what [appellant] heard and didn’t hear” and “[i]t’s impossible for us to know when [appellant] ... was paying attention unless he gave a specific response that indicated he was paying attention.” Moreover, Belfon testified that “in all of [her] conversations at all times with [appellant,] he never asked [her] to testify.” The State did not attempt to contradict or clarify this testimony on re-direct examination.
As charged, the jury was authorized to convict apрellant if, “acting with intent to promote or assist the commission of the offense, he solict[ed], eneourag[ed], directed], aid[ed], or attempted] to aid [another] person to commit the offense.”
See
Tex. Penal Code Ann. § 7.02(a)(2) (West 2011). Relative to the
mens rea
element of the offense, the State was not required to prove appellant intended that Uyamadu would actually commit the offense. Instead, it is sufficient if the State proved that appellant intended to promote or assist Uyamadu in committing the offense.
See Hanson v. State,
*837
Under the above standards, the evidence must support a finding that appellant, acting with
intent
to promote or assist the commission of
witness tampering as charged,
solicited, encouraged, directed, aided, or attempted to aid another person to commit
witness tampering as charged. See Hooper,
We conclude the following evidence supports a rational inference that Uyamadu and appellant concocted a detailed scheme, and appellant was aware of the role Belfon would play in the scheme if Uyamadu’s case proceeded to trial:
(1)the obvious purpose of the scheme was to deceive the prosecutor into dismissing the theft charges filed against Uyamadu by paying Belfon to claim responsibility for the stolen computers;
(2) appellant knew Belfon had financial difficulties, solicited her to participate in the scheme, and introduced her to Uya-madu;
(3) during the May 17 meeting, appellant was generally present during discussions between Uyamadu and Belfon, participated in some of the conversations, and drove the trio to Uyamadu’s other office;
(4) appellant demonstrated knowledge regarding Uyamadu’s travel schedule prior to the June hearing;
(5) Uyamadu told Belfon she would be required to testify falsely if the prosecutor did not dismiss the charges; although Uyamadu apparently gave this instruction while appellant was outside the vehicle, there is no evidence Uyama-du instructed Belfon not to speak with appellant about her testifying at trial; and
(6) appellant contacted Belfon following the May 17 meeting to inform her Uya-madu had returned from his trip and that she was required to sign a statement.
Based on the above evidence — particularly the sounds and conversation that occurred while appellant exited and reentered the vehicle the jury could have logically concluded that appellant and Uyamadu discussed their strategy relative to Belfon, including the possibility that Belfon would be required to testify at trial if the prosecutor did not dismiss thе charges.
See Hooper,
The fact appellant may not have been present in the vehicle during the above conversation is not determinative. Under the Penal Code, a defendant may be culpable for tampering with a witness even if he was not physically present when the of
*838
fense was committed.
Guevara v. State,
Accordingly, we hold the evidence is legally sufficient to support a finding that appellant, with intent to promote or assist Uyamadu in committing witness tampering, aided Uyamadu in the commission of the offense
See
Tex. Penal Code Ann. §§ 7.02(a)(2); 36.05(a)(1);
Hooper,
III. ChaRgb Error
In his second issue, appellant contends the trial court committed charge error by using the term “prospective witness” in the application paragraph of the jury charge instead of “witness.” When we review a claim of jury charge error, we first determine whether there is error in the charge.
Barrios v. State,
As noted above, section 36.05(a)(1) provides, “A person commits [the offense of tampering with a witness] if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding ... to testify falsely.” Tex. Penal Code Ann. § 36.05(a)(1) (emphasis added).
In the indictment, the State alleged that appellant “on or about May 17, 2008, did then and there unlawfully, with intent to influence a PROSPECTIVE WITNESS, in an official proceeding, to wit: [the computer theft prosecution], OFFER AND CONFER AND AGREE TO CONFER A BENEFIT ON SABRINA BELFON to TESTIFY FALSELY.” (emрhasis added).
In the jury charge, the abstract instruction tracked the language in section 36.05(a)(1), but the application paragraph tracked the language in the indictment. The application paragraph contained the following language:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 17th day of May, 2008, ... [appellant] did then and there unlawfully, with intent to influence a prospective witness, in an official proceeding, to-wit: [the computer theft case], offer or confer or agree to confer a benefit on Sabrina Belfon to testify falsely; or if you find from the evidence beyond a reasonable doubt that on or about the 17th day of May, 2008, ... [Uyamadu] did then and there unlawfully, with intent to influence a prospective witness, in an official proceeding, to-wit: [the computer theft case], offer or confer or agree to confer a benefit on Sabrina Belfon to testify falsely, and that [appellant], with intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid [Uyamadu] to commit the offense, if he did, then you will find [appellant] guilty of tampering with a witness, as charged in the indictment.
(emphasis added).
Assuming, arguendo, that the charge is erroneous because the trial court submitted language in the application paragraph that deviated from language in the statute, we conclude the alleged error was harmless.
When, as here, a defendant fails to object to charge error, reversal is warranted only if the defendant was egregiously harmed.
See Warner v. State,
Appellant presents multiple purported reasons that the alleged charge error was egregiously harmful. First, he contends the incorrect instruction regarding the specific intent element of the offense affected “the very basis of the case” because “the charge created the risk that one or more jurors would reach a guilty verdict without appreciating that the State had to show [appellant] intended to influence a testifying witness, not just a prospective witness.” According to appellant, the erroneous “with intent to influence a prospective witness” instruction authorized the jury to convict him for merely writing a misleading letter to Uyamadu’s attorney.
Second, appellant argues that resort to the remaining instructions in the charge did not ameliorate the error because the terms “witness” and “prospective witness” were not defined in the charge and the error was in the essential application portion of the charge which, unlike the abstract portion, actually “authorizes the jury to act.”
See Hutch v. State,
Third, appellant argues that evidence of guilt was not overwhelming because the direct evidence pertaining to his communication with Belfon demonstrated that he wanted her to “take the charge” and sign a false statement — not testify falsely. Additionally, appellant argues it is difficult to understand what appellant and Uyamadu said оn the video and audio recordings. In fact, during deliberations, the jury requested a transcript of the recordings; the trial court responded that a transcript was not in evidence. Appellant argues the jury may have decided they could determine guilt without understanding the content of the recordings because they could convict appellant for merely intending to influence Belfon as a prospective witness.
Finally, appellant argues that the charge error was exacerbated by the trial court’s allegedly erroneous decision to sustain the State’s objection to that portion of appellant’s closing argument in which he purportedly correctly stated the law regarding witness tampering. We agree the only direct evidence regarding appellant’s solicitation of Belfon is that he asked her to “take a charge” for Uyamadu and sign a statement or note claiming responsibility for the stolen computers. Furthermore, as explained below in section V., appellant may have caused some confusion regarding whether the phrase “to testify falsely” included unsworn statements. We also.acknowledge that there is a distinction between “witness” and “prospective witness.”
See Cada,
Nevertheless, after examining the entire record, we conclude the trial court’s inclusion of the phrase “with intent to influence a prospective witness” instead of “with intent to influence the witness” did not increase the likelihood that the jury would convict appellant for requesting Belfon to write a letter or caused any other egregious harm to appellant.
See Warner,
Accordingly, even if we assume in the jury charge, appellant was not egregiously harmed. Appellant’s second issue is overruled.
IV. Consolidation op Cases
In his third issue, appellant contends the trial court erred by consolidating the State’s cases against Uyamadu and aрpellant. In his related fourth issue, appellant contends the trial court erred by failing to sever the consolidated cases.
Article 36.09 of the Code of Criminal Procedure, entitled “Severance on separate indictments,” provides as follows:
Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as .to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.
Tex.Code Crim. Proc. Ann. art. 36.09 (West 2007).
On appeal, appellant argues that the trial court improperly applied Penal Code section 3.02 when the cases were consolidated. See Tex. Penal Code Ann. § 3.02 (West 2011) (pertaining to joinder of claims against a single defendant). In its “Notice of Intent to Consolidate Prosecutions,” the State relied on section 3.02. 3 However, appellant never objected to the State’s filing or argued that section 3.02 is an improper legal basis for consolidation. Thus, appellant did not preserve any error. See Tex.R.App. P. 33.1. Accordingly, we overrule appellant’s third issue.
In his fourth issue, appellant contends the trial court erred by denying his motion to sever the cases because the joint trial was prejudicial to aрpellant. On appeal, he asserts numerous reasons why he was purportedly prejudiced, including antagonistic defenses and a “spill over” problem, whereby the jury considered specific evidence pertaining to Uyamadu’s theft when it determined appellant’s guilt for witness tampering.
In his motion to sever, appellant argued, “To have [appellant] be tried jointly with [Uyamadu] for an offense for which [appellant] has not been charged and for a case which does not arise out of the same transaction would be prejudicial.” In his motion and during pretrial hearings, appellant did not specify any reasons why the joint trial would be prejudicial. During the third day of trial, appellant argued that two exhibits pertaining to stolen computers, in light of all the other evidence *841 presented regarding the computer theft, were prejudicial by linking him to the theft. The trial court resрonded, “Okay. I understand that position. All right. Well, that objection’s overruled.”
The conclusory “prejudicial” objection which appellant made prior to presentation of the evidence was not sufficient to inform the trial court regarding any reasons evidence adduced in the theft case would be prejudicial to appellant’s defense.
See
Tex.R.App. P. 33.1;
Zunker v. State,
We hold the trial court did not err by denying appellant’s motion for sеverance. Appellant’s fourth issue is overruled.
V. JURY Argument
Finally, in his fifth issue, appellant contends the trial court erred by sustaining the State’s objection to appellant’s jury argument and denying his counsel an opportunity to state the law correctly to the jury.
We review the trial court’s ruling on the State’s objection to appellant’s jury argument for abuse of discretion.
See Davis v. State,
Appellant complains regarding the following rulings:
[Appellant’s counsel]: An official proceeding, and here — this is the gut— these are the guts of the case, this is what it’s about. Again, Pm not talking about the theft. The tampering with the witness, the elements are very clear and they’re in the charge for you, but you boil it all down and an individual has to convey a benefit or offer to convey a benefit to a prospective witness to get that witness to testify falsely. Not to give a statement, not to write a note, not to accept responsibility, not to do any of these other things. They have to be told, they have to be trying to get this individual to testify, and testify means something.
You testify in an official proceeding is the other part of the charge. You read it. You testify in an official proceeding. You have to go to a proceeding. You have to raise your hand. You have to swear to tell the truth.
[Prosecutor]: Objection, your Honor, that’s a misstatement of the law.
[Trial Court]: That’s sustained.
[Appellant’s counsel]: To testify in an official proceeding, you have to take an oath, and you have to be present to testify. Now—
*842 [Prosecutor]: Objection, your Honor, that’s a misstatement of the law.
[Trial Court]: That’s sustained.
[Appellant’s counsel]: It could include a deposition which also would require taking an oath, swearing to tell the truth, raising your hand, but if you were going to testify in an official proceeding, that’s not a handwritten note that you give to somebody else.
[Prosecutor]: Objection, your Honor, that’s a misstatement of the law.
[Trial Court]: That’s sustained.
[Prosecutor]: Ask for an instruction for the jury to disregard.
[Trial Court]: The jury will disregard counsel’s last statement.
[Appellant’s counsel]: I’m sorry, your Honor. My statement was that a handwritten note that was not under oath is not testimony. Your ruling is that that is testimony?
[Trial Court]: I’ve made my ruling.
[Appellant’s counsel]: I’m trying to not run afoul of your rulings, Judge.
Appellant argues that the trial court erred by denying him the opportunity to explain to the jury “that merely handing someone else a written note is not the same thing as being a witness and testifying.” However, we disagree that this proposition was necessarily the import of appellant’s jury argument.
The crux of appellant’s argument appears to be that the accused must have influenced a prospective witness
to testify falsely in an official proceeding.
However, “[a] person commits [tampering with a witness] if ... he offers, confers, or agrees to confer any benefit on
a witness or prospective witness in an official proceeding
... to testify falsely.” Tex. Penal Code Ann. § 36.05(a)(1). Accordingly, under the statute, the person solicited must be a witness or prospective witness in an official proceeding, but the objective of the solicitation need not be for the person to testify falsely in an official proceeding.
See Thompson,
The word “testify” is not defined in the Penal Code. Statutory terms not legislatively defined are generally construеd as common usage allows, but terms that have an acquired a known and established legal meaning are generally construed in their legal sense.
Medford v. State,
*843
This interpretation is logical in context of subsections (a)(2), (a)(3), and (a)(5) of section 36.05, which do not require that the witness or prospective witness be persuaded to appear in an official proceeding.
See
Tex. Penal Code Ann. § 36.05(a)(2), (3), & (5) (prohibiting solicitation of witness or prospective witness in an official proceeding “(2) to withhold any testimony, information, document, or thing; (3) to elude legal process summoning him to testify or supply evidence; ... or (5) to abstain from, discontinue, or delay the prosecution of another”);
see also Thomas v. State,
Appellant’s counsel initially argued to the jury without objection that “testify” means more than merely writing a letter:
[A]n individual has to convey a benefit or offer to convey a benefit to a prospective witness to get that witness to testify falsely. Not to give a statement, not to write a note, not to accept responsibility, not to do any оf these other things. They have to be told, they have to be trying to get this individual to testify, and testify means something.
Thereafter, appellant’s counsel thrice mentioned that, under the jury charge, appellant must have solicited a person “to testify in an official proceeding.” The trial court properly sustained the State’s objections to these arguments because testifying in an official proceeding is not an element of witness tampering.
See Thomas,
We acknowledge that appellant’s counsel asked the trial court to explain its ruling, “My statement was that a handwritten note that was not under oath is not testimony. Your ruling is that that is testimony?” However, the trial court replied, “I’ve made my ruling.” Earlier, appellant’s counsel argued, “It could include a deposition which also would require taking an oath, swearing to tell thе truth, raising your hand,
but if you were going to testify in an official proceeding,
that’s not a handwritten note that you give to somebody else.” (emphasis added). Because the trial court could have reasonably construed appellant’s argument to be an assertion that a necessary element of witness tampering is testifying in an official proceeding, the court did not err by sustaining the State’s objection.
See Davis,
We affirm the trial court’s judgment.
Notes
. The jury also convicted Uyamadu of both charges brought against him. Our court affirmed both judgments against Uyamadu.
See Uyamadu v. State,
. During trial, Belfon was asked about Uya-madu’s statement regarding whether she would be required to testify. Belfon explained, "I'd have to come in a courtroom like this, give my statement or testimony,” “I would have to raise my right hand and tell [a lie]." Additionally, during cross-examination, *836 Belfon testified, “[Uyamadu] told me that I would have to testify and he prepared me to what type of statement I would make if I had to testify.”
. The State now concedes that section 3.02, entitled “Consolidation and Joinder of Prosecutions,” did not provide authority for consolidating the cases.
. Obviously, as used in the context of section 36.05(a)(1), the Legislature did not intend for "testify” to include congregants "testifying” regarding their conversion experiences. See Webster's Ninth New Collegiate Dictionary 1219 (noting that one definition of "testify” is “to express a personal conviction”).
. We acknowledge that in
Bingham v. State,
the Court of Criminal Appeals determined the term "testimony” as used in the accomplice-witness statute refers to evidence "adduced in open court by live witnesses under oath.”