Springer v. State

• Decision Date: 26 November 1986
• Docket Number: No. B14-85-878-CR,B14-85-878-CR
• Parties: R.B. SPRINGER, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 510

721 S.W.2d 510

R.B. SPRINGER, Appellant, v. The STATE of Texas, Appellee.

No. B14-85-878-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Nov. 26, 1986.

Discretionary Review Refused March 18, 1987.

Robert C. Bennett, Houston, for appellant.

John B. Holmes, Jr., J. Harvey Hudson, James E. Lindeman, III, Houston, for appellee.

Before PAUL PRESSLER, SEARS and CANNON, JJ.

PAUL PRESSLER, Justice.

Appellant, a Houston Police Officer, was investigated by a grand jury concerning police brutality. The grand jury called a number of citizens who testified that they had been brutalized and abused while in the appellant's custody. The appellant was asked under oath, "Mr. Springer, have you ever physically abused or mistreated a prisoner or suspect in your custody?" He answered, "[N]o sir." The grand jury indicted appellant for aggravated perjury. At trial, the State presented eight witnesses who testified to the mistreatment they had received at the hands of appellant. The trial court found appellant guilty of aggravated perjury and assessed a ten-year probated sentence and a $1000 fine. We affirm.

Appellant, in his first point of error, complains that the trial court should have granted his motion for acquittal since a perjury conviction cannot be based solely on the accused's statement of opinion as to the legal effect of certain facts. A witness cannot be guilty of perjury in giving such an opinion. Schoenfeld v. State, 56 Tex.Crim. 103, 119 S.W. 101 (1909). In Schoenfeld, the defendant testified under oath about his interpretation of a contract. The Court of Criminal Appeals held that such an error would not support a conviction for perjury.

The statement here was given concerning alleged violations of civil rights by appellant. He argues that his statement was an expression of his opinion as to the legal effect of his conduct, i.e. whether he had committed an offense. Appellant was not asked to interpret whether his conduct violated any person's civil rights. He was simply asked whether he had ever "physically abused or mistreated a prisoner or suspect." The principle of Schoenfeld does not apply here.

Any possible error resulting from the denial of appellant's motion for acquittal was waived when he thereafter elected to present defensive evidence. Kuykendall v. State, 609 S.W.2d 791, 794 (Tex.Crim.App.1980); Martin v. State, 704 S.W.2d 892, 893 (Tex.App.--Houston [14th Dist.] 1986, pet. ref'd). The first point of error is overruled.

In his second point of error, appellant complains of a lack of corroboration of the evidence as required by Texas Code of Criminal Procedure, article 38.18(a) (Vernon 1979) which provides:

No person may be convicted of perjury or aggravated perjury if proof that his statement is false rests solely upon the testimony of one witness other than the defendant.

Appellant contends that because there was only one witness to each of the three instances of abuse alleged in the indictment, there was insufficient corroboration. Appellant has misconstrued the statute. Article 38.18(a) does not require that every allegation in an aggravated perjury indictment be established by the testimony of two or more persons. The statute requires corroboration only of the fact that the statement is false. The statement was that he "had never abused or mistreated a prisoner or suspect in his custody". The falsity of that statement was shown and corroborated by numerous witnesses who testified to the mistreatment they received while in appellant's custody. There is no requirement that each separate incident of cruelty had to be separately corroborated as well.

Appellant also argues that the 1973 amendment to article 38.18(a) did not change the earlier requirement that there be testimony of two or more witnesses or one witness and other evidence proving the falsity of a statement. This claim is not correct. Article 38.18(a) requires a conviction for perjury or aggravated perjury to be proven by more than one witness to the falsity of the statement. McGuire v. State, 707 S.W.2d 223 (Tex.App.--Houston [14th Dist.] 1986, pet. ref'd). Appellant's second point of error is overruled.

Appellant, in his third point of error, contends that the evidence is insufficient to prove that his false statement was material to the grand jury investigation. The elements of aggravated perjury are that the statement assigned as perjury must be made during or in connection with an official proceeding and be material. McCullar v. State, 696 S.W.2d 579, 581 (Tex.Crim.App.1985); Tex.Penal Code Ann. §§ 37.02, 37.03 (Vernon 1974). Appellant points out that, at the time he made his false statement, the grand jury had not heard the testimony of one of the persons named in the indictment as having been abused by appellant. Appellant claims that his statement, therefore, was not material to the grand jury investigation.

A statement is material if it could have affected the course or outcome of the official proceeding. Mitchell v. State, 608 S.W.2d 226 (Tex.Crim.App.1980); Tex.Penal Code Ann. § 37.04 (Vernon 1974). The question posed to appellant was material. Appellant's false response was material to the grand jury proceedings. Appellant's third point of error is overruled.

Appellant, in his fourth point of error, complains that the State was improperly allowed to...