Texas Penal Code 36.05 – Tampering with Witness
WHAT IS TAMPERING WITH WITNESS IN TEXAS?
Witness tampering is coercing or offering any benefit to a witness or prospective witness in exchange for the witness’s intentional absence, false or incomplete testimony, or other form of delaying or eluding legal process. If the witness or prospective witness agrees to accept the benefit to inhibit legal process, he or she may also be charged with witness tampering.
WHAT IS THE TAMPERING WITH WITNESS LAW IN TEXAS?
Tex. Penal Code § 36.05. TAMPERING WITH WITNESS.
(a) A person commits an offense 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, or he coerces a witness or a 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.
(b) A witness or prospective witness in an official proceeding commits an offense if he knowingly solicits, accepts, or agrees to accept any benefit on the representation or understanding that he will do any of the things specified in Subsection (a).
(c) It is a defense to prosecution under Subsection (a)(5) that the benefit received was:
(1) reasonable restitution for damages suffered by the complaining witness as a result of the offense; and
(2) a result of an agreement negotiated with the assistance or acquiescence of an attorney for the state who represented the state in the case.
(d) An offense under this section is a felony of the third degree, except that if the official proceeding is part of the prosecution of a criminal case, an offense under this section is the same category of offense as the most serious offense charged in that criminal case.
(e) Notwithstanding Subsection (d), if the most serious offense charged is a capital felony, an offense under this section is a felony of the first degree.
(e-1) Notwithstanding Subsection (d), if the underlying official proceeding involves family violence, as defined by Section 71.004, Family Code, an offense under this section is the greater of:
(1) a felony of the third degree; or
(2) the most serious offense charged in the criminal case.
(e-2) Notwithstanding Subsections (d) and (e-1), if the underlying official proceeding involves family violence, and it is shown at the trial of the offense that the defendant has previously been convicted of an offense involving family violence under the laws of this state or another state, an offense under this section is the greater of:
(1) a felony of the second degree; or
(2) the most serious offense charged in the criminal case.
(e-3) For purposes of Subsection (a), a person is considered to coerce a witness or prospective witness if the person commits an act of family violence that is perpetrated, in part, with the intent to cause the witness’s or prospective witness’s unavailability or failure to comply and the offense is punishable under Subsection (e-1) or (e-2), as applicable.
(f) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.
WHAT IS THE PENALTY CLASS FOR TAMPERING WITH WITNESS IN TEXAS?
By default, tampering with a witness is a third degree felony, punishable by two to ten years in prison. If a person commits witness tampering in connection with a criminal prosecution, the witness tampering is charged as the same offense level as the criminal case. If a person commits witness tampering in connection with a capital offense, the witness tampering is a first degree felony, punishable by five to 99 years or life in prison.
In criminal cases involving family violence, witness tampering is a third degree felony, unless the pending criminal prosecution is a higher offense level, in which case the tampering charge is punishable as the higher offense. If a person has a previous family violence conviction, and tampers with a witness in a pending family violence prosecution, the witness tampering charge is, at minimum, a second degree felony, punishable by two to 20 years in prison.
WHAT IS THE PUNISHMENT RANGE FOR TAMPERING WITH WITNESS IN TEXAS?
The punishment range for a third degree felony witness tampering charge is two to ten years in prison, and up to a $10,000 fine. If it is charged as a second degree felony, it carries between two and 20 years in prison, and up to a $10,000 fine. Witness tampering charged as a first degree felony carries between five to 99 years or life in prison, and a maximum fine of $10,000.
WHAT ARE THE PENALTIES FOR TAMPERING WITH WITNESS IN TEXAS?
A person charged with witness tampering is eligible for either type of community supervision for up to ten years: probation, which is a felony conviction, or deferred adjudication, which is not a conviction. The minimum term of supervision is two years for witness tampering charged as a third degree or second degree felony, and five years if it is charged as a first degree felony.
WHAT ARE THE DEFENSES TO TAMPERING WITH WITNESS IN TEXAS?
In many cases, a person who commits a crime causes pecuniary loss to a victim. Texas law permits a defendant in a pending criminal case to pay restitution to the victim in exchange for a dismissal or leniency without it being considered witness tampering, so long as attorneys for the State assist in restitution negotiations.
WHAT IS THE STATUTE OF LIMITATIONS FOR TAMPERING WITH WITNESS IN TEXAS?
The limitation period for tampering with a witness, whether it is charged as a first degree, second degree, or third degree felony, is three years.
TAMPERING WITH WITNESS IN TEXAS
Witness tampering is interference with an official proceeding by hindering access to witnesses or information, whether through an offer to confer a benefit, or coercion.
TEXAS TAMPERING WITH WITNESS COURT CASES
The case law regarding witness tampering in Texas highlights the legal requirement that the accused either coerce the witness, or offer to confer a benefit in exchange for the witness’s false testimony or absence.
As is commonly seen in the family violence context, a defendant’s request to the victim to lie, without more, will not support a witness tampering conviction. An appellate court recently discussed a defendant’s letters to the victim in an assault family violence case in which he asked the victim not to meet with the district attorney. The court overturned his witness tampering conviction, because encouraging the victim not to cooperate, without any coercion or promise of a benefit, does not amount to tampering with a witness. Mitchell v. State, 572 S.W.3d 303 (Tex. App.—Texarkana 2019, no pet.).
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WE FIGHT FOR DISMISSAL
WE FIGHT FOR DISMISSAL
CHARGES DISMISSED
DRIVING WHILE INTOXICATED .15
Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.
CHARGES DISMISSED
DRIVING UNDER THE INFLUENCE
Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.
CHARGES DISMISSED
DRIVING WHILE INTOXICATED .15+
Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest. State eventually dismissed DWI charge. Client received no criminal conviction.
CHARGES DISMISSED
DWI 2nd
Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.
CHARGES DISMISSED
DRIVING UNDER THE INFLUENCE
Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.
CHARGES DISMISSED
DRIVING UNDER THE INFLUENCE
Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.
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