Mitchell v. State

Decision Date08 October 1980
Docket NumberNo. 2,No. 65017,65017,2
PartiesRandy MITCHELL, Appellant, v. The STATE of Texas, Appellee
CourtTexas Court of Criminal Appeals

Lynn C. Hensley, Rockdale, P. David Wahlberg, Austin, for appellant.

John B. Henderson, Jr., County Atty., Cameron, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, ODOM and DALLY, JJ.

OPINION

ODOM, Judge.

This is an appeal from an order revoking probation. Appellant was convicted of delivery of marihuana. Probation was revoked for allegedly committing an offense against the law, namely, aggravated perjury, contrary to the terms of probation.

The motion alleged aggravated perjury based on appellant's testimony in two cases, State v. Caddell and State v. Hodge, in substantially the same language:

"The Defendant, Randy Mitcell, has violated Condition No. 1 of the 3-year probation granted him on March 29, 1979 by this Honorable Court in that on or about the 20th day of September, A.D. 1979, in Milam County, Texas, he did then and there personally appear at an official proceeding to-wit: a trial in the Twentieth District Court of Milam County, Texas, styled The State of Texas v. Michael Britt Hodge, and being Cause No. 15,790 on the docket of said Court and in connection with and during said official proceeding and after being duly sworn by Don G. Humble, the Judge of said Court authorized by law to administer oaths, made, under oath, a false statement, this statement being, to-wit: 'that in his presence Kim Mitchell had sexual intercourse with Harold B. O'Brien and James F. Cooke at an apartment in the Rainbow Courts in Rockdale, Texas during the month of March, 1979', whereas in truth and in fact the said Kim Mitchell did not have sexual intercourse with Harold B. O'Brien and James F. Cooke in the presence of the said Randy Mitchell at an apartment in the Rainbow Courts in Rockdale, Texas during the month of March, 1979, and the said Randy Mitchell made this false statement with knowledge of the statement's meaning and with intent to deceive, and said false statement was material to the issue under inquiry during said official proceeding as to the credibility of the said Harold B. O'Brien, who, along with the said James F. Cooke, acted in an undercover capacity while serving as a Narcotics Officer with the Texas Department of Public Safety in Milam County, Texas during the months of January, February and March of 1979 and was the State's key witness in such proceeding against Michael Britt Hodge, and said false statement could have affected the course and outcome of said official proceeding, and said statement was required by law to be made under oath, against the peace and dignity of the State, the offense committed by the said Defendant being AGGRAVATED PERJURY, ..."

Appellant pleaded not true to these allegations.

Appellant first contends that the statute defining the crime of aggravated perjury is unconstitutionally vague.

V.T.C.A., Penal Code Sec. 37.03 provides, in pertinent part:

"(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."

A statement is material, regardless of its admissibility, if it "could have affected the course or outcome of the official proceeding." V.T.C.A., Penal Code Sec. 37.04(a) (emphasis added). Appellant lists numerous hypotheticals in his brief attempting to illustrate how the language of Sec. 37.04(a) is vague: specifically, he argues the terms "affected" and "course" of the proceeding are vague. Materiality is a question of law, not fact. Sec. 37.04(c), supra. The issue is not whether the false statement in fact affected the course or outcome of the proceedings, but whether it was such testimony as could have affected the course or outcome of those proceedings. To have such potential, the false testimony must be related to the decision making process of the proceeding. Thus, "materiality" refers to "misstatements having some substantial potential for obstructing justice" and excludes "utterly trivial falsifications." See Model Penal Code Sec. 208.20 at p. 112, Comment (Tent. Draft No. 6, 1957). Compare V.T.C.A., Penal Code Sec. 37.04(a) with Model Penal Code Sec. 241.1(2) (1962).

We therefore overrule appellant's contention that the definition of "material" in Sec. 37.04 is unconstitutionally vague.

Likewise we reject appellant's contentions that his testimony in issue was not "material." Appellant's false testimony could have affected the course of the proceeding in that such testimony, if believed by the fact finder, would bear directly on the credibility of the State's witness. Where the matter is calculated to incline the jury to give "more ready credit to the substantial fact," materiality, for the purposes of aggravated perjury, is shown. See Frazier v. State, 61 Tex.Cr.R. 647, 135 S.W. 583, 584. Since appellant's false statements were made for the purpose of affecting the credibility of the State's witnesses, they were material under the law of this State prior to the enactment of the new Penal Code. Washington v. State, 22 Tex.Ct.App. 26, 3 S.W. 228, 229. We likewise find appellant's statements "material" as that concept is defined in V.T.C.A., Penal Code Sec. 37.04(a), which is broader than that under prior case law. See Searcy & Patterson, Practice Commentary, 4 V.T.C.A., Penal Code 51, 52 (1974). Fur...

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37 cases
  • State v. Rosenbaum
    • United States
    • Texas Court of Criminal Appeals
    • November 30, 1994
    ...could have affected the course or outcome of the proceedings. Tex.Penal Code Ann. § 37.04(a) (emphasis added); Mitchell v. State, 608 S.W.2d 226, 228 (Tex.Crim.App.1980). Materiality is distinguishable from other elements the State typically must prove in a criminal trial. As this Court sta......
  • McGuire v. State
    • United States
    • Texas Court of Appeals
    • March 6, 1986
    ...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 su......
  • Lackey v. State, No. 08-08-00012-CR (Tex. App. 12/16/2009)
    • United States
    • Texas Court of Appeals
    • December 16, 2009
    ...motion, but rather that a finding of guilty on all counts of the indictment would violate double jeopardy. See Mitchell v. State, 608 S.W.2d 226, 228 (Tex. Crim. App. 1980) (requiring revocation motions to contain sufficient information so that the accused can properly defend himself agains......
  • Tell v. State
    • United States
    • Texas Court of Appeals
    • September 21, 1995
    ...Rule). As a sanction for violation of the Rule the trial court may, among other things, refuse to allow a witness to testify. Mitchell v. State, 608 S.W.2d 226, 228 (Tex.Crim.App. [Panel Op.] 1980); Jennings, 748 S.W.2d at 609. However, disqualification of a defense witness for violation of......
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