State v. Rosenbaum

• Decision Date: 30 November 1994
• Docket Number: No. 974-93,974-93
• Citation: 910 S.W.2d 934
• Parties: The STATE of Texas, Appellant, v. Billy ROSENBAUM, Appellee.
• Court: Texas Court of Criminal Appeals

Page 934

910 S.W.2d 934

The STATE of Texas, Appellant, v. Billy ROSENBAUM, Appellee.

No. 974-93.

Court of Criminal Appeals of Texas En Banc.

Nov. 30, 1994.

Opinion Adopting Dissent on Grant

of Rehearing Dec. 6, 1995.

Dick DeGuerin, Houston, for appellant.

Jim W. James, Sp. Prosecutor, Bryan, Robert Huttash, State's Atty. and Carl E.F. Dally, Former First Asst. State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellee was indicted for aggravated perjury pursuant to Texas Penal Code Ann. § 37.03. Prior to trial, appellee filed a motion to determine the validity of the State's evidence of materiality of the alleged false statements in the indictment and a motion to quash the indictment. The trial court conducted a pretrial hearing on appellee's motions and ordered the allegations of materiality in the indictment quashed. The Court of Appeals for the Fourteenth Judicial District affirmed the judgment of the trial court. State v. Rosenbaum, 858 S.W.2d 22 (Tex.App.--Houston [14th Dist.] 1993). We granted the State's petition for discretionary review to determine whether a defendant may raise a pretrial challenge to the State's evidence of materiality in an aggravated perjury indictment where the materiality allegation in the indictment is valid on its face, thus requiring the State to prove materiality prior to a trial on the merits. ¹ We will affirm.

A grand jury indicted appellee, Sheriff of Washington County, for aggravated perjury. ² Appellee filed two pretrial motions: Motion for Pretrial Determination of Materiality of Alleged False Statements (Motion for Pretrial Determination of Materiality) and Combined Motion to Dismiss or Quash the Indictment and Objection to Materiality of False Statements (Combined Motion to Quash). In his Motion for Pretrial Determination of Materiality, appellee moved the court to hold a pretrial hearing to determine, as a question of law, the materiality of appellee's alleged false statements. ³ Appellee moved the court to dismiss the indictment if the court found the statements not material since the district court would no longer have jurisdiction. ⁴ In his Combined Motion to Quash, appellee moved the court to dismiss or quash the indictment and to hold that the alleged false statements were not material. In this motion, appellee argued that the indictment was void on its face, the indictment failed to give appellee adequate notice, and the statements alleged were not material to any matter then under inquiry. The trial judge set a pretrial hearing on both motions, and at the hearing he considered the two motions as one.

At the pretrial hearing, appellee called as a witness Blondean Kuecker, the District Clerk of Washington County. Kuecker testified regarding the grand jury records and indictments relevant to appellee's case. Counsel for appellee introduced appellee's testimony before the grand jury that indicted him for aggravated perjury and his testimony before an earlier grand jury where he allegedly perjured himself. The prosecutor called himself as a witness and testified about the grand juries and the indictments involved in appellee's case. After listening to the testimony and the arguments of counsel, the trial judge determined that appellee's testimony could not have affected the course or outcome of the investigation. In his order, the trial judge found no factual basis on which the grand jury could conclude that the statements were material. The trial court found, as a matter of law, that the statements were not material and ordered the allegations of materiality in the indictment quashed, leaving allegations accusing appellee of misdemeanor perjury. The State then appealed that order to the court of appeals.

The court of appeals held that the trial court had legal authority to hold the pretrial hearing on materiality and make the legal determination pursuant to Articles 27.02, 27.03, and 28.01 of the Texas Code of Criminal Procedure. Rosenbaum, 858 S.W.2d at 24.

The State contends that the court of appeals erred in concluding that the trial court may require the State to prove materiality prior to trial. The State does not specifically address the court of appeals' interpretation of Articles 27.02, 27.03, and 28.01 of the Texas Code of Criminal Procedure. Instead, while the State agrees with the premise that materiality is a question of law, it disagrees with the court of appeals' conclusion that a trial court may quash a facially valid allegation of materiality at a pretrial hearing.

The state supports its argument with three lines of reasoning. First, the State argues that the court of appeals' decision conflicts with established Texas practice. Second, the State contends that the court of appeals' decision is inconsistent with federal case law and case law in other states. Third, the State argues that, although materiality is a question of law, the resolution of that legal issue will invariably be closely intertwined with questions of fact. Appellee argues that the court of appeals correctly interpreted Articles 28.01, 27.02, and 27.03 of the Texas Code of Criminal Procedure in concluding that the trial court had authority to determine the issue of materiality pretrial. In addition, Appellee contends that the authorities cited by the State do not address the issue at hand, that is, whether the trial court properly determined materiality pretrial.

Both appellee's pretrial motions involved a determination of materiality of the alleged statements. In a criminal case, unless otherwise provided in the Texas Code of Criminal Procedure, the jury is the exclusive judge of the facts. Tex.Code of Crim.Proc.Ann. art. 36.13. However, Section 37.04(c) of the Texas Penal Code explicitly provides that "whether a statement is material in a given factual situation is a question of law." The trial court must determine, as a matter of law, whether the allegedly false statement 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 stated in Yarbrough v. State, 617 S.W.2d 221, 228 (Tex.Crim.App.1981), "The question of materiality does not depend on the probative value of the evidence." It has also been held that a factual evidentiary showing establishes the basis for the materiality of a statement, but "the ultimate finding of materiality turns on an interpretation of substantive law." United States v. Abadi, 706 F.2d 178, 180 (6th Cir.1983), cert. denied, 464 U.S. 821, 104 S.Ct. 86, 78 L.Ed.2d 95 (1983); see Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 273, 73 L.Ed. 692 (1929).

While both of appellee's motions involve a determination of materiality, we will discuss them separately. The court of appeals considered both motions together as the trial judge did in the pretrial hearing. This has created some confusion in the appeals process. In short, the major portion of the State's brief addresses the issue raised in appellee's Combined Motion to Quash and appellee's brief addresses the issue raised in his Motion for Pretrial Determination of Materiality. In his Combined Motion to Quash, appellee requested a ruling on the sufficiency of the evidence to support the materiality allegation in the indictment. In his Motion for Pretrial Determination of Materiality, appellee requested a pretrial ruling on materiality as a matter of law. The motions are distinct in the type of evidence the court may consider in its determination and the standard applied by the court in evaluating the evidence. When determining the sufficiency of evidence to support a materiality allegation in an indictment pursuant to a motion to quash, the court may not look beyond the face of the indictment. The court need only determine whether the indictment generally alleges materiality. However, when ruling on materiality as a question of law, the court may go beyond the face of the indictment and consider, for example, the transcript of prior proceedings or the testimony from witnesses at the proceedings. ⁵ In addition, the State must meet a more rigorous evidentiary standard. ⁶

A. Combined Motion to Quash

The State argues that the court of appeals' opinion conflicts with established Texas practice. Specifically, the State contends that a defendant may not make a pretrial attack upon the sufficiency of the evidence presented to the grand jury to support the allegations in the indictment. While the State is correct in this statement of the law, only appellee's Combined Motion to Quash attacked the sufficiency of the evidence before the grand jury. In contrast, appellee's Motion for Pretrial Determination requested a pretrial ruling on a matter of law, the materiality of the alleged false statements and did not attack the sufficiency of the evidence before the grand jury.

To support its argument that the court of appeals' decision conflicts with established Texas practice, the State cites cases where the defendants' claims were based on insufficiency of evidence to support indictments. Ex Parte Millard, 587 S.W.2d 703, 705 (Tex.Crim.App.1979) (indictment void because it failed to allege elements of a crime where name of property owner alleged where defendant's name should have been alleged); Crocker v. State, 573 S.W.2d 190, 204 (Tex.Crim.App.1978) (motion to quash assault indictment denied even though grand jury did not have witnesses or testimony before it upon which to predicate its finding); Carpenter v. State, 477 S.W.2d 22, 23 (Tex.Crim.App.1972) (court may not look beyond face of murder indictment to see if sufficient evidence to support it); Bourland et al. v. State, 133 Tex.Crim. 544, 112 S.W.2d 720 (App.1937) (theft indictment quashed because it did not...