Soliz v. State

• Decision Date: 29 January 2003
• Docket Number: No. 100-02.,100-02.
• Citation: 97 S.W.3d 137
• Parties: David S. SOLIZ, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 137

97 S.W.3d 137

David S. SOLIZ, Appellant, v. The STATE of Texas.

No. 100-02.

Court of Criminal Appeals of Texas.

January 29, 2003.

Brenda Doucette, Houston, for appellant.

John F. Healey, Jr., Dist. Atty., David C. Newell, Asst. Dist. Atty., Richmond, Matthew Paul, State's Atty., Austin, for state.

OPINION

COCHRAN, J., delivered the opinion of the Court in which KELLER, MEYERS, PRICE, WOMACK, KEASLER, HERVEY and HOLCOMB, J.J., joined.

Appellant was convicted in Fort Bend County of misdemeanor perjury, based on a false statement he made in a civil deposition taken in Harris County. The court of appeals, finding the evidence insufficient to prove venue in Fort Bend County, reversed. Soliz v. State, 60 S.W.3d 162 (Tex.App.-Houston [14th Dist.] 2001). We granted the State's petition for review¹ and hold that venue for a perjury prosecution, that is based on a false statement made in a party's deposition, lies both in the county in which the deposition was taken and in the county in which the underlying lawsuit is pending. For purposes of the perjury venue statute,² deposition testimony by a party in a civil lawsuit is "used or attempted to be used" in the county in which the underlying lawsuit is pending as soon as that party makes a false statement in his sworn deposition with the intent to deceive and with knowledge of the statement's meaning.

I.

Appellant sued Apollo Paint and Body and its owner, Farouk Al Attar ("Apollo"), in small claims court in Fort Bend County. He alleged that Apollo converted appellant's personal property — several model cars, a desk and a 1989 Ford Mustang — when appellant's employment with Apollo ended. Appellant also sued Apollo, in Harris County, for breach of contract. When Apollo's lawyer, Don Willman, deposed appellant in the Harris County breach of contract matter, appellant, represented by his then-lawyer, Steve Menn, swore he had graduated from the University of Houston.

Appellant won a default judgment in the Fort Bend County conversion case, but Apollo appealed de novo to the county court. Apollo's lawyer in this case, William Harmeyer, deposed appellant in Harmeyer's law office in Harris County. Harmeyer had apparently discovered that appellant had testified falsely in his first deposition that he had graduated from the University of Houston. Thus Harmeyer, in `this second deposition, questioned appellant extensively about his college education.³ Appellant maintained that he had a finance degree from the University of Houston. When the conversion lawsuit went to trial in the Fort Bend County court, appellant testified and admitted, on cross-examination, that he had lied about the degree in both depositions. In fact, he stated, he never attended the University of Houston or any college.

He blamed his lawyer, Mr. Menn, and said that Mr. Menn told him that "no matter what I say in these depositions, it doesn't matter; no one looks into them.... He had advised me that depositions are a form of trickery; and in order to fight trickery, you apply trickery[.]" Appellant said he had lied under oath "[b]y his [attorney's] advice."⁴ Still, appellant admitted that he knew, during his deposition, that: 1) he was sworn under oath to tell the truth; 2) the deposition could be used at the time of trial, just as if he were testifying live; and 3) the penalties of perjury applied to his deposition, just as if he were testifying live at trial. After appellant testified at the civil conversion trial that he had lied in his earlier depositions, the Fort Bend County District Attorney charged him with perjury, a Class A misdemeanor.⁵

At the perjury trial, appellant again tried to excuse his behavior. He said that he attempted to be truthful and honest in his deposition regarding the facts about the property conversion dispute, but that he did not make that same effort when relating his personal background because his attorney had left him with the impression that "the background stuff' would not matter. Appellant's defense to the perjury prosecution was that he never attempted to use the deposition testimony in the civil trial.⁶

At the close of evidence, appellant moved for a directed verdict on the ground that the State failed to prove venue in Fort Bend County, because the deposition itself was taken in Harris County. The State's position was that the physical location of the deposition did not change the fact that the perjury was committed in a Fort Bend County lawsuit. The trial court denied appellant's motion for directed verdict. The jury convicted appellant and sentenced him to one year in jail, probated, and a $500 fine.

On appeal, appellant argued that the trial court erred in denying his motion for directed verdict based on improper venue. He claimed that the State had not proven venue in Fort Bend County because there was no evidence that he ever attempted to use his false deposition testimony in that county. The Court of Appeals agreed, reversed the conviction, and remanded the case to the trial court with instructions to dismiss the information.⁷ We granted review.

II.

At common law, venue meant the "the neighborhood, place, or county in which an injury is declared to have been done, or fact declared to have happened."⁸ More technically, it means the county or district in which a court with jurisdiction may hear and determine a case.⁹ In Texas, if the Legislature has not specified venue for a specific type of crime, then "the proper county for the prosecution of offenses is that in which the offense was committed."¹⁰ Special venue statutes, however, expand the number of counties in which an offense may be prosecuted. These special venue statutes have been enacted for various reasons, such as: 1) the difficulty of proving precisely where the offense was committed;¹¹ 2) the location where evidence of the crime is found;¹² 3) the effect that a crime may have upon several different counties;¹³ or 4) the effect that the actor may have upon various counties.¹⁴ Texas venue statutes are a species of codified "substantial contacts" jurisdiction; thus, for venue to lie, the defendant, his conduct, his victim, or the fruits of his crime must have some relationship to the prosecuting county.¹⁵ The Legislature has specified the types of contacts that satisfy this "substantial contacts" threshold for various offenses.

There is a special venue statute for perjury and aggravated perjury, which states that these offenses "may be prosecuted in the county where committed, or in the county where the false statement is used or attempted to be used."¹⁶ The special venue rule for perjury thus increases the number of counties in which perjury may be prosecuted.

Few Texas cases have specifically addressed what the statutory phrase "used or attempted to use a false statement" means in a perjury prosecution. Frequently the matter is obvious. For example, a perjury prosecution based on a sworn statement made by a party-witness in Deaf Smith County, and then introduced into evidence by that same party in a pending Jim Hogg County case, could, of course, be prosecuted in either county. But a statement need not be formally introduced into evidence by the party-witness himself to be considered "used."

In Carter v. State,¹⁷ for example, this Court held that, when a defendant in an underlying criminal case attached juror Carter's affidavit, which allegedly contained false statements, to his motion for a new trial, the juror's affidavit had been "used" in the underlying criminal proceedings. Specifically, we stated:

"under the statute defining perjury ... it was not necessary that the affidavit be introduced in evidence if it was attached to the motion for a new trial. The affidavit, together with the motion, was presented to the court with the view and for the purpose of obtaining a new trial on the facts therein stated and thus brought it within the purview of the State."¹⁸

Thus, for purposes of prosecuting the juror for perjury, the juror's affidavit, attached to a motion filed in court by someone in the underlying criminal proceeding in which the actor had been a juror, had been "used or attempted to be used" for purposes of the perjury statute.¹⁹

A half century later, the Eastland Court of Appeals reached a similar conclusion on an analogous issue. In Hutcheson v. State,²⁰ the court of appeals addressed whether a false statement in a divorce suit deposition was false testimony made "in connection with an official proceeding" for purposes of the aggravated perjury statute. The court found that it was:

Appellant's deposition was taken in order to discover, evaluate, plan, and prove information to be used in connection with the divorce proceeding. Consequently, the deposition was taken `in connection with' the divorce hearing at which property rights and other issues were to be adjudicated. In fact, most depositions are taken after the commencement of a lawsuit.²¹

Underlying the Carter and Hutcheson holdings, as well as the Texas aggravated perjury statute (which penalizes material perjury made in, or in connection with, an official proceeding) is the recognition that perjury — whether it occurs during a deposition, in an affidavit, in grand jury proceedings, or at trial on the merits — hinders the accurate resolution of ancillary or parent legal proceedings.

That same recognition underlies United States v. Reed,²² in which the Second Circuit held that venue for perjury lies both where the perjury is committed and where the underlying lawsuit is pending.²³ Reed was indicted for perjury in the Southern District of New York for alleged false statements he made in a deposition taken in San Francisco. The deposition was taken in a civil suit pending in the Southern District of New York.²⁴ Reed successfully moved to dismiss the perjury count for lack of venue because he made the false statements in San Francisco, not New York. The Second Circuit reversed and held that, to determine...