Section 36.05 of the Texas Penal Code states in part:
Sec. 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 coerces 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.
(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.
Arnold v. State, 68 S.W.3d 93 (Tex.App.- Dallas 2001, pet. ref’d) provides a good historical review of this crime. In that case, a former stripper worked for a lawyer and the lawyer paid for her to leave town to avoid testifying in the drug possession trial of a Dallas Cowboy star. The conviction and two year sentence for the lawyer was upheld.
Nunez v. State, 27 S.W.3d 210, 216 (Tex. App. – El Paso 2000, no pet.) involved a lawyer who took a client’s $6,000 insurance settlement check. After the client filed complaints with the State Bar, the District Attorney and the police, the lawyer met with his former client at a restaurant. The attorney asked the client to drop the charges in exchange for future payments of $3,000 within a few weeks and the remaining amount owed within three months. If the client decided not to drop the charges, then the attorney assured the client that the attorney would “drag it on as long as he could” so that there would be a good chance that the witness would never see any money. The attorney was convicted of witness tampering and sentenced to 180 days in jail. The conviction was upheld in part because of the recording the client made of the attorney saying:
“All you have to do is go and withdraw that criminal complaint at the D.A.’s office and write a notice to the State Bar that you’re withdrawing your complaint. That’s all I’m asking you and you can have that immediately. That’s going to be much better than what’s going to happen to me. That’s all I can do. You can have the Cadillac if you want.”
Davis v. State, No. 13-08-00406-CR, 13-08-00407-CR (Tex. App. – Corpus Christi August 26, 2009)(mem. op.) involved the infamous “mom’s boyfriend” who threatened to kick a 15 year old out of his house after she gave a statement about having sex with an adult who was a friend of the homeowner.
Landers v. State, No. 10-11-00408-CR (Tex. App. – Waco 8/30/2012)(mem. op.) is an example of a mother trying to get her nine year old daughter not to testify that her step-father sexually molested her. The mother was convicted of tampering with a witness for telling the child she was a liar and driving her daughter to a deposition and telling her “not to tell what happened” (even though the child was not asked about the sexual assault at the deposition).
Morlett v. State, 656 S.W.2d 603 (Tex. App. — Corpus Christi 1983, no pet.) involved a fellow who was indicted but then acquitted of murder. He still got life in prison for tampering with a witness enhanced by two prior felony convictions. The coercion of a witness in this case involved the following:
One of the State’s witnesses against appellant in that trial was Rodolfo Herrera. In the trial of the cause now before us Herrera testified that prior to the murder trial appellant phoned him at least three times and said (in Herrera’s words) “… I better not say anything in the trial, you know, say that if–I mean that if he didn’t want it to have a bad grudge on me or something like that, you know.” He further testified that when he (Herrera) entered the courtroom to testify appellant made two silent gestures to him. The first was to place a finger over his lips and the second was to make a fist. Herrera interpreted these gestures to indicate a threat. He then proceeded to retract a statement he had earlier given to the prosecutor and refused to implicate appellant in the murder.