Ortega v. State, 2-81-095-CR
| Decision Date | 07 April 1982 |
| Docket Number | No. 2-81-095-CR,2-81-095-CR |
| Citation | 631 S.W.2d 802 |
| Parties | Carlos R. ORTEGA, Appellant, v. STATE of Texas, State. |
| Court | Texas Court of Appeals |
Gerald D. McDougall, Denver, Colo., for appellant.
Tim Curry, Dist. Atty., and C. Chris Marshall, Asst. Dist. Atty., Fort Worth, for appellee.
Before HUGHES, JORDAN and RICHARD L. BROWN, JJ.
The appellant, Carlos R. Ortega, was convicted of aggravated perjury. His punishment was assessed at five years confinement in the Texas Department of Corrections in addition to a fine of $5000.00.
We affirm the judgment of the trial court.
The offense for which appellant was convicted arose out of a grand jury investigation of misapplication of funds by appellant's business associate, Waldemeer P. Kutteles. Kutteles, as managing partner of certain limited partnerships, was to have made certain real estate mortgage and tax payments on behalf of several limited partners who were making their payments through Kutteles. Appellant appeared as a witness before the grand jury. He was president of the company which syndicated the limited partnerships.
The perjury indictment delivered against the appellant charged appellant with having perjured himself in negatively responding to questions posed by the grand jury in regard to his knowledge that foreclosures upon land were occurring due to arrearages (supposedly caused by Kutteles' misapplication of the funds in his possession).
By his fifth and sixth grounds of error, the appellant urges that the trial court erred in denying his two motions for instructed verdict. These grounds of error are conclusive and contain no elaboration or authority. They do not comply with V.A.C.C.P. art. 40.09 sec. 9 (Supp.1982). Daniel v. State, 486 S.W.2d 944 (Tex.Cr.App.1972, cert. denied, 410 U.S. 958, 93 S.Ct. 1433, 35 L.Ed.2d 692). Since appellant does mention the materiality of the alleged misstatements we make reference to Mitchell v. State, 608 S.W.2d 226, 228 (Tex.Cr.App.1980) wherein it is said that "A statement is material, regardless of its admissibility, if it 'could have affected the course or outcome of the official proceeding' ". For the reason that the appellant himself may have been subject to indictment, we hold that his statements concerning his knowledge of the circumstances 'could have affected' the course or outcome of the grand jury's inquiries. We overrule the fifth and sixth grounds of error.
The appellant's first ground of error relates to his trial motion that the testimony of an investigator, Dan Waller, be struck from the record as being immaterial. Waller testified as to his investigations of Kutteles and the entity of which appellant was president. He described before the jury the method by which investors' funds were misapplied. He also testified that he was, in effect, unfamiliar with the appellant.
Waller's testimony provided the jury a context in which to consider whether the appellant committed aggravated perjury. In Yarbrough v. State, 617 S.W.2d 221 (Tex.Cr.App.1981), evidence of an extraneous offense was ruled to have been admissible to establish the appellant's motive for committing perjury. The background, as established by Waller, gave added significance to the knowledge appellant denied possessing. Furthermore, since Waller denied even being familiar with appellant, any error committed was harmless. We overrule the first ground of error.
By his second ground of error the appellant contends that, excluding a picture of Kutteles found therein, the remainder of a pen packet, showing that Kutteles had before pled guilty to four offenses involving the misapplication of funds, was immaterial to the appellant's trial for perjury.
The fact that Kutteles had pled guilty to these four offenses is elsewhere established in a letter which was introduced into evidence without objection. Thus, even if the admission of these four offenses was improper, no reversible error is shown because the same facts are shown by other evidence which is not challenged. Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978). We overrule the second ground of error.
By his fourth ground of error the appellant attacks the admission into evidence of the complete transcript of his testimony before the grand jury. The appellant appears to argue that it was improper for two prosecuting attorneys to read the transcript to the jury. In Yarbrough v. State, supra, it was held that error, if any, resulting from the fact that the reading of court...
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McGuire v. State
...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 ......