McGuire v. State
| Decision Date | 06 March 1986 |
| Docket Number | C14-84-776C,Nos. A14-84-774C,A14-84-777C,B14-84-778CR,B14-84-775C,s. A14-84-774C |
| Citation | 707 S.W.2d 223 |
| Parties | Latanya Renee McGUIRE, Appellant, v. The STATE of Texas, Appellee. Beatrice Earline TREADWELL, Appellant, v. The State of TEXAS, Appellee. Ethel JOSEPH, Appellant, v. The State of TEXAS, Appellee. Tina Louise JOSEPH, Appellant, v. State of TEXAS, Appellee. Johnnie Mae TREADWELL, Appellant, v. The State of TEXAS, Appellee. Eugene TREADWELL, Appellant, v. THe State of TEXAS, Appellee. AND C14-84-779CR. (14th Dist.) |
| Court | Texas Court of Appeals |
Craig A. Washington, William C. Rice, Jr., Stanley G. Schneider, Houston, for appellant.
John B. Holmes, Jr., Roe Morris, Judy P. Mingledorff, Houston, for appellee.
Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.
Appellants were tried jointly for the offense of aggravated perjury. They were convicted by the jury below. The court assessed each a punishment of three years confinement in the Texas Department of Corrections except for Johnnie Mae Treadwell who received four years confinement. Since appellants were tried jointly in the court below, we have consolidated the cases on appeal. Appellants, jointly and severally, have raised some seventeen grounds of error. After carefully reviewing each ground of error, we conclude that the judgments below must be affirmed.
All appellants are related by blood or marriage to Carlos Joseph, a one year old boy who died before he was to undergo an emergency operation at Ben Taub Hospital on November 27, 1982, and whose death was being investigated by the Harris County Grand Jury. Appellants were charged with having given false statements to the grand jury, these questions concerned the physical health of the child before 10:00 p.m. on November 26, 1982.
The State alleged that the child, on November 26, 1982, was suffering from a lacerated liver injury which should have been noticed by appellants. Such an injury would have caused great pain and suffering and would have restricted the child's breathing and movements. Each indictment contained questions propounded before the grand jury and the responses of each respective appellant.
All appellants stipulated to the following facts: (1) the Grand Jury of the 263rd Judicial District Court was conducting an official proceeding; (2) said proceeding was investigating the death of Carlos Joseph; (3) the persons named by the respective indictments in the cause before the court appeared as witnesses before the grand jury; (4) they appeared on the respective dates as alleged; (5) they gave statements under oath after being duly sworn by D.G. McCann; (6) those statements made were authorized by law to be made under oath; and (7) those statements were material.
At trial, the State introduced the grand jury testimony of each appellant. This testimony concerned the physical conditions of the child on November 26, 1982. Each appellant testified there was nothing wrong with the child. They testified the child's eating and breathing habits were normal and that the child was not crying or irritable or suffering from a fever.
Willie Braxton, a Houston Fire Department paramedic, testified that he observed bruises and cuts on the face of the child when he saw him the night of November 26, 1982. Dr. Robert Rudolf, then chief of the Ben Taub emergency room, testified that his initial examination of the child raised an immediate impression of child abuse. Dr. William Pokorney, a pediatric surgeon who treated Carlos Joseph at Ben Taub, testified that the baby's preoperative diagnosis was a blunt trauma to the abdomen. In his opinion a three-inch liver laceration would restrict the child's movements, reactions and breathing. This type of injury is painful and the family would notice there was something wrong with the child.
Dr. Aurelio Espinola, Harris County Assistant Medical Examiner, testified the cause of death was a laceration of the liver due to a blunt trauma, complicated by pneumonia. Dr. Espinola testified the liver injury was at least three days old and would produce the following symptoms: pain, restricted breathing, discomfort and restricted movement. Dr. Joseph Jachimczyk, Harris County Medical Examiner, corroborated Dr. Espinola's finding concerning the age of the liver injury.
All appellants, except Beatrice Earline Treadwell, argue the evidence is insufficient to support their conviction for aggravated perjury because the conviction was based on the testimony of only one witness.
Appellants were convicted under TEX.PENAL CODE ANN. § 37.02 and § 37.03, which in part reads:
(a) A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning:
(1) he makes a false statement under oath or swears to the truth of a false statement previously made; and
(2) the statement is required or authorized by law to be made under oath.
(a) A person commits an offense if he commits perjury as defined in Section 37.02 of this code, and the false statement:
(1) is made during or in connection with an official proceeding; and
(2) is material.
The gravamen of appellants' argument pertains to the interpretation of TEX.CODE CRIM.PROC.ANN. § 38.18, which reads in pertinent part as follows:
(a) 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.
Prior to its amendment in 1973, Article 38.18 read as follows:
In trials for perjury or false swearing, no person shall be convicted except upon the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence as to the falsity of the defendant's statement under oath, or upon his own confession in open court.
It is the contention of appellants that Dr. Espinola was the only witness produced to prove the state's allegation of perjury. They contend Dr. Jachimczyk's testimony cannot be considered because it is based on lab slides and the autopsy report prepared by Dr. Espinola.
The argument of appellants is supported by judicial decisions rendered before the 1973 amendment to Article 38.18. Prior to 1973 a defendant could not be found guilty of perjury if proof of the falsity of his statement was based upon the uncorroborated testimony of one witness. See Donley v. State, 167 Tex.Crim. 427, 320 S.W.2d 847 (1959); Taylor v. State, 22 S.W. 974 (Tex.Crim.App.1893). The testimony of one witness could be used to convict the accused when the testimony was strongly corroborated by other evidence. Smith v. State, 22 Tex.Ct.App. 196, 2 S.W. 542 (1886); Whitaker v. State, 37 Tex.Crim. 479, 36 S.W. 253 (1896). "Strongly corroborated" was defined in Gabrielsky v. State, 13 Crim.R. 428 (1883), wherein the Court of Criminal Appeals stated that the corroborating evidence should come from a source other than from the witness who was to be corroborated. It was certainly never intended that a witness could corroborate his own testimony by his own acts and declarations. Id. at 440. Thereby, Dr. Jachimyczk's testimony, being based upon reports and lab slides prepared by Dr. Espinola, could not have corroborated Dr. Espinola's findings.
Article 38.18 no longer requires the testimony of two credible witnesses or of one credible witness corroborated strongly by other evidence. It is our opinion that Article 38.18 stands for the proposition that to obtain a conviction for perjury or aggravated perjury, the State need only produce more than one witness.
Dr. Jachimczyk testified that the liver injury was at least three days old. His findings were based upon his independent examination of the tissue specimens. Additionally, Dr. William Pokorney testified this type of liver injury would be very painful to the child, the child would not behave normally and his family would notice that there was something wrong. Also, from the testimony of Dr. Robert Rudolf, Dr. Mark Malone and Wille Braxton, the jury could infer that the child was in great pain during the entire day of November 26, 1982. In the instant case the State has met its burden. This ground of error is without merit and is overruled.
In her sixth ground of error, Tina Louise Joseph alleges the trial court committed fundamental error in failing to instruct the jury that no person may be convicted of perjury on the testimony of one witness. Since we have found more than one witness testified as to the falsity of appellant's statement there was no error in the failure to so instruct the jury. Ortega v. State, 631 S.W.2d 802 (Tex.App.--Fort Worth 1982, no pet.); Sweaney v. State, 632 S.W.2d 932 (Tex.App.--Fort Worth 1982, no pet.). This ground of error is overruled.
Both Tina Louise Joseph and Beatrice Earline Treadwell argue that the evidence was insufficient to prove they knowingly made a false statement with the intent to deceive. The standard we must use in deciding a sufficiency of the evidence question is to decide whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984). The requisite intent to deceive may be inferred from the circumstances. Mitchell v. State, 608 S.W.2d 226, 229 (Tex.Crim.App.1980); See Williams v. State, 567 S.W.2d 507, 510 (Tex.Crim.App.1978). A conviction on circumstantial evidence cannot be sustained on appeal unless the evidence excludes every reasonable hypothesis except that of the defendant's guilt. Freeman v. State, 654 S.W.2d 450 (Tex.Crim.App.1983); Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983). Based upon the testimony of Dr. Espinola, Dr. Jachimczyk, Dr. Pokorney, Willie Braxton, Dr. Robert Rudolf and Dr. Mark Malone, the jury had been provided with sufficient evidence. Dr. Espinola and Dr....
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