Texas 2013 - 83rd Regular

Texas Senate Bill SB1360 Compare Versions

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1	1	By: Rodriguez S.B. No. 1360
2	2	(Herrero, Lucio III, Villalba)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the punishment for the offense of tampering with a
8	8	witness and the evidence that may be offered to show that offense.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subsection (a), Section 36.05, Penal Code, is
11	11	amended to read as follows:
12	12	(a) A person commits an offense if, with intent to influence
13	13	the witness, he offers, confers, or agrees to confer any benefit on
14	14	a witness or prospective witness in an official proceeding, or he
15	15	coerces a witness or a prospective witness in an official
16	16	proceeding:
17	17	(1) to testify falsely;
18	18	(2) to withhold any testimony, information, document,
19	19	or thing;
20	20	(3) to elude legal process summoning him to testify or
21	21	supply evidence;
22	22	(4) to absent himself from an official proceeding to
23	23	which he has been legally summoned; or
24	24	(5) to abstain from, discontinue, or delay the
25	25	prosecution of another.
26	26	SECTION 2. Section 36.05, Penal Code, is amended by adding
27	27	Subsections (e-1), (e-2), and (e-3) to read as follows:
28	28	(e-1) Notwithstanding Subsection (d), if the underlying
29	29	official proceeding involves family violence, as defined by Section
30	30	71.004, Family Code, an offense under this section is the greater
31	31	of:
32	32	(1) a felony of the third degree; or
33	33	(2) the most serious offense charged in the criminal
34	34	case.
35	35	(e-2) Notwithstanding Subsections (d) and (e-1), if the
36	36	underlying official proceeding involves family violence, as
37	37	defined by Section 71.004, Family Code, and it is shown at the trial
38	38	of the offense that the defendant has previously been convicted of
39	39	an offense involving family violence under the laws of this state or
40	40	another state, an offense under this section is the greater of:
41	41	(1) a felony of the second degree; or
42	42	(2) the most serious offense charged in the criminal
43	43	case.
44	44	(e-3) For purposes of Subsection (a), a person is considered
45	45	to coerce a witness or prospective witness if the person commits an
46	46	act of family violence as defined by Section 71.004, Family Code,
47	47	that is perpetrated, in part, with the intent to cause the witness's
48	48	or prospective witness's unavailability or failure to comply and
49	49	the offense is punishable under Subsection (e-1) or (e-2), as
50	50	applicable.
51	51	SECTION 3. Chapter 38, Code of Criminal Procedure, is
52	52	amended by adding Articles 38.48 and 38.49 to read as follows:
53	53	Art. 38.48. EVIDENCE IN PROSECUTION FOR TAMPERING WITH
54	54	WITNESS OR PROSPECTIVE WITNESS INVOLVING FAMILY VIOLENCE.
55	55	(a) This article applies to the prosecution of an offense under
56	56	Section 36.05, Penal Code, in which:
57	57	(1) the underlying official proceeding involved
58	58	family violence, as defined by Section 71.004, Family Code; or
59	59	(2) the actor is alleged to have violated Section
60	60	36.05, Penal Code, by committing an act of family violence against a
61	61	witness or prospective witness.
62	62	(b) In the prosecution of an offense described by Subsection
63	63	(a), subject to the Texas Rules of Evidence or other applicable law,
64	64	each party may offer testimony or other evidence of all relevant
65	65	facts and circumstances that would assist the trier of fact in
66	66	determining whether the actor's conduct coerced the witness or
67	67	prospective witness, including the nature of the relationship
68	68	between the actor and the witness or prospective witness.
69	69	Art. 38.49. FORFEITURE BY WRONGDOING. (a) A party to a
70	70	criminal case who wrongfully procures the unavailability of a
71	71	witness or prospective witness:
72	72	(1) may not benefit from the wrongdoing by depriving
73	73	the trier of fact of relevant evidence and testimony; and
74	74	(2) forfeits the party's right to object to the
75	75	admissibility of evidence or statements based on the unavailability
76	76	of the witness as provided by this article through forfeiture by
77	77	wrongdoing.
78	78	(b) Evidence and statements related to a party that has
79	79	engaged or acquiesced in wrongdoing that was intended to, and did,
80	80	procure the unavailability of a witness or prospective witness are
81	81	admissible and may be used by the offering party to make a showing
82	82	of forfeiture by wrongdoing under this article, subject to
83	83	Subsection (c).
84	84	(c) In determining the admissibility of the evidence or
85	85	statements described by Subsection (b), the court shall determine,
86	86	out of the presence of the jury, whether forfeiture by wrongdoing
87	87	occurred by a preponderance of the evidence. If practicable, the
88	88	court shall make the determination under this subsection before
89	89	trial using the procedures under Article 28.01 of this code and Rule
90	90	104, Texas Rules of Evidence.
91	91	(d) The party offering the evidence or statements described
92	92	by Subsection (b) is not required to show that:
93	93	(1) the actor's sole intent was to wrongfully cause the
94	94	witness's or prospective witness's unavailability;
95	95	(2) the actions of the actor constituted a criminal
96	96	offense; or
97	97	(3) any statements offered are reliable.
98	98	(e) A conviction for an offense under Section 36.05 or
99	99	36.06, Penal Code, creates a presumption of forfeiture by
100	100	wrongdoing under this article.
101	101	(f) Rule 403, Texas Rules of Evidence, applies to this
102	102	article. This article does not permit the presentation of
103	103	character evidence that would otherwise be inadmissible under the
104	104	Texas Rules of Evidence or other applicable law.
105	105	SECTION 4. The change in law made by this Act applies only
106	106	to an offense committed on or after the effective date of this Act.
107	107	An offense committed before the effective date of this Act is
108	108	governed by the law in effect on the date the offense was committed,
109	109	and the former law is continued in effect for that purpose. For
110	110	purposes of this section, an offense was committed before the
111	111	effective date of this Act if any element of the offense occurred
112	112	before that date.
113	113	SECTION 5. This Act takes effect September 1, 2013.