Brasher v. State

• Decision Date: 14 August 1986
• Docket Number: No. A14-85-504-CR,A14-85-504-CR
• Citation: 715 S.W.2d 827
• Parties: W.L. BRASHER, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 827

715 S.W.2d 827

W.L. BRASHER, Appellant, v. The STATE of Texas, Appellee.

No. A14-85-504-CR.

Court of Appeals of Texas Houston (14th Dist.).

Aug. 14, 1986.

Michael Ramsey, August Toudouze, Houston, for appellant.

John B. Holmes, Jr., Eleanor M. McCarthy, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.

OPINION

MURPHY, Justice.

A jury found appellant guilty of all charges made in a three-paragraph indictment alleging aggravated perjury. After a pre-sentence investigation, the court assessed a ten-year, probated sentence and a fine of $5,000.

The indictment accused appellant of making false statements while testifying before a grand jury of the 337th District Court of Harris County. The grand jury was investigating a shooting in which a police officer, Kendall R. Patterson, wounded a citizen, William H. Pressey.

Because four of appellant's five grounds of error concern sufficiency of the evidence, we will briefly relay the facts before addressing the grounds of error.

Shortly before 10 p.m. on October 14, 1983, appellant, a sergeant with the Houston Police Department, responded to a call on his car radio concerning a traffic accident at the intersection of Montrose and Hyde Park in Houston. An intoxicated driver had collided with several vehicles causing a significant traffic control problem. Patterson and other officers arrived at the scene to investigate the accident.

Witnesses' accounts of the shooting vary, but it is virtually undisputed that Pressey was slowly driving his pickup truck westbound on Hyde Park when Patterson spoke to him. After Pressey responded, Patterson ordered Pressey to stop his pickup and get out. Pressey did not stop and a shooting occurred.

Appellant's testimony before the grand jury and at trial was that Patterson shot Pressey to stop Pressey from running over appellant. Appellant said that he ordered Patterson to arrest Pressey because Pressey had uttered an obscenity at Patterson and refused to follow instructions to move on. Appellant claimed he was standing on Hyde Park a few feet in front of the pickup as Pressey gunned his motor in an apparent attempt to escape arrest. Appellant claimed he had to jump from in front of the truck to avoid being hit.

Patterson's version at appellant's trial matched appellant's version. Patterson maintained he shot Pressey in defense of appellant and then hung onto the truck as it turned the corner and sped down Montrose going north. Pressey said he fell off onto the esplanade on Montrose and the pickup continued until it struck a vacant house at the next intersection.

Two police officers at the scene that night testified at appellant's trial. Neither saw the shooting, but both testified that they heard the screeching tires of a quickly accelerating motor vehicle, then a shot. After the shooting, these officers and appellant composed written statements while sitting in one office at police headquarters.

Two civilian witnesses testified at appellant's trial. Raymond Rivera testified he saw Pressey's truck make a slow turn off of Hyde Park onto Montrose and heard Patterson ask Pressey to stop. When the truck continued to move, Patterson approached the side of the truck with another officer following four or five feet behind him. Patterson was at the driver's window of the truck and another officer was at the rear wheel of the truck when Rivera saw a flash and heard a shot. After the shot, the truck sped off. Rivera did not observe anyone in front of the truck either before or during the time the shot was fired.

The second civilian witness, Arthur Norman, was near his car on the median of Montrose when he heard someone shouting "stop, stop, stop" at the corner of Hyde Park and Montrose. Immediately thereafter he saw Pressey's truck slowly make a right turn from Hyde Park onto Montrose. Norman saw the appellant and Patterson running beside the truck with Patterson three or four steps ahead of appellant. When the truck had just completed the turn, Norman saw Patterson stumble and fall on the esplanade. Patterson immediately jumped up, pulled his revolver, ran three or four steps up to the truck and fired a shot into the truck. Appellant never got ahead of Patterson. Norman saw Pressey slump over in the truck, then saw the truck speed up and go out of control. Norman testified that the truck was going very slowly before the shot and he saw no one standing in front of the truck or jumping out from in front of the truck.

Other police officer witnesses testified about questioning appellant after the shooting. The doctor who treated Pressey in the emergency room testified that the gunshot wound would have immediately paralyzed Pressey in his left side and rendered him incapable of turning his truck to the right.

In three paragraphs, the indictment accused appellant of falsely telling the grand jury (1) Patterson shot Pressey while Pressey's pickup truck was traveling westbound on Hyde Park, (2) Patterson shot Pressey to keep Pressey from running into appellant, and (3) appellant had to jump from in front of Pressey's pickup truck to keep from being run over by the pickup truck. The jury found appellant guilty on all three counts.

The elements of aggravated perjury are: (1) a person, (2) with intent to deceive, (3) with knowledge of the statement's meaning, (4) makes a material false statement under oath, (5) when the law authorized or required the statement to be made under oath, (6) during or in connection with an official proceeding. McCullar v. State, 696 S.W.2d 579, 581 (Tex.Crim.App.1985); see also Tex.Penal Code Ann. §§ 37.02, 37.03 (Vernon 1974). Appellant's first two grounds of error concern the fifth element listed. In ground one he complains that the evidence was insufficient to prove that the law authorized or required the statements to be made under oath. In ground two he contends that the trial court commented upon the weight of the evidence when it instructed the jury that a statement made before a grand jury is required or authorized by law to be made under oath.

The foreman and the sergeant at arms of the grand jury and appellant himself all testified that appellant swore to the oath administered by the sergeant at arms. That oath was verbatim the oath required by the Code of Criminal Procedure. See Tex.Code Crim.Proc.Ann. art. 20.16 (Vernon 1977). The grand jury was convened by the 337th District Court of Harris County and was investigating allegations that a felony (the shooting) had occurred in Harris County. See Tex.Code Crim.Proc.Ann. art. 20.18 (Vernon 1977). We fail to see how this evidence failed to prove that the statement was authorized or required by law to be made under oath. Ground of error one is overruled.

Appellant uses ground two to contend that the court commented upon the weight of the evidence in the jury charge in two ways. First, the judge instructed that "a statement or testimony before such grand jury is required or authorized by law to be made under oath." He then included in all three application paragraphs the phrase "such statement then and there being required and authorized by law to be made under oath."

No objection to these parts of the charge was made at trial. We can reverse only if the error in the charge, if any, is so egregious and created such harm that the appellant has not had a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (on rehearing).

There is no question that testimony before a grand jury is required or authorized to be made under oath. See Tex.Code Crim.Proc.Ann. art. 20.16 (Vernon 1977). The appellant does not complain that the grand...