State v. Rutherford
| Decision Date | 13 October 1999 |
| Docket Number | No. 04-98-00763-CR,04-98-00763-CR |
| Citation | 18 S.W.3d 666 |
| Parties | (Tex.App.-San Antonio 1999) The STATE of Texas, Appellant, v. Daniel R. RUTHERFORD, Appellee |
| Court | Texas Court of Appeals |
From the 186th Judicial District Court, Bexar County, Texas. Trial Court No. 98-CR-3055. Honorable Terry McDonald, Judge Presiding.
Daniel Thornberry, Assistant Criminal District Attorney, San Antonio, TX, for Appellant.
Harry A. Nass, Jr., San Antonio TX. R. Robert Willmann, Jr., San Antonio, TX. Stephen Tyler Rutherford, RUTHERFORD RUTHERFORD & BETTERSWORTH, P.L.L.C., San Antonio, TX, for Appellee.
Sitting: Sarah B. Duncan, Justice. Tom Rickhoff, Justice, Sarah B. Duncan, Justice, Karen Angelini, Justice.
REVISED OPINION AND DENIAL OF MOTION FOR REHEARING
Opinion by: SARAH B. DUNCAN Justice.
We withdraw the opinion issued in this case on August 25, 1999, and substitute the following opinion in its stead. However, we deny Daniel R. Rutherford's motion for rehearing and do not modify the judgment issued in this case on August 25, 1999.
The State appeals the trial court's order dismissing the indictment against Daniel R. Rutherford for aggravated perjury and suppressing Rutherford's grand jury testimony in the related prosecution. We reverse the trial court's rulings and remand the cause for further proceedings.
Rutherford was brought before a grand jury to testify regarding his client's "possession and disposal of an IRS check in the amount of $ 22,172.47 that was issued on 4/19 of '94." Before questioning began, Rutherford was told by an assistant district attorney he was "not a target of this Grand Jury" or "the suspect or the accused in this investigation." "Due to instructions from the top," Rutherford was further warned as follows:
Number one, your testimony before this Grand Jury is under oath. Number two, any material question that is answered falsely before this Grand Jury subjects you to being prosecuted for aggravated perjury. Number three, you have the right to refuse to make answers to any question, the answer to which would incriminate you in any manner. Number four, you have the right to have a lawyer present outside this chamber to advise you before making answers to questions you feel might incriminate you. Number five, any testimony you give may be used against you at any subsequent proceeding. Number six, if you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you before making an answer to a question, the answer to which you feel might incriminate you. After Rutherford signed a written copy of these warnings, he testified his client gave him the check as payment for his legal services, which he believed his client was entitled to do, and he then deposited the check in his trust account. When asked whether he received any other payments from this client, Rutherford replied "No, we went to - we switched to pro bono...." Several times during the questioning, Rutherford stepped outside the grand jury room to consult with his attorney.
At the time the assistant district attorney assured Rutherford he was not a target of or the suspect in the investigation, several police documents indicated Rutherford was in fact the second suspect in the theft of the check, and he was later indicted not only for theft of the check but also for aggravated perjury. In the aggravated perjury charge, the State alleged Rutherford falsely testified he received only one payment for legal services from the client in question.
Before trial, Rutherford moved to suppress his grand jury testimony and, on similar grounds, dismiss the indictment. Without specifying grounds for its rulings, the trial court suppressed Rutherford's grand jury testimony and dismissed the aggravated perjury charge. The State appeals, arguing the trial court erred in suppressing Rutherford's grand jury testimony in the perjury case and dismissing the perjury indictment.
We review the trial court's rulings under the abuse of discretion standard. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); State v. Perez, 906 S.W.2d 558, 559 (Tex. App.--San Antonio 1995), aff 'd, 947 S.W.2d 268 (Tex. Crim. App. 1997). Under this standard, we "view the evidence in the light most favorable to the trial court's ruling," giving the trial court almost total deference concerning findings of historical fact supported by the record. Guzman, 955 S.W.2d at 89. We review the trial court's determination of the applicable law, as well as its application of the appropriate law to the facts it has found, de novo. Id.
The State contends the trial court erred in suppressing Rutherford's grand jury testimony in the aggravated perjury prosecution under article 38.23 of the Texas Code of Criminal Procedure and the attenuation doctrine recognized in Johnson v. State, 871 S.W.2d 744 (Tex. Crim. App. 1994). We agree.
Article 38.23 requires the exclusion of evidence "obtained ... in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America ...." TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon Supp. 1998). Article 38.23's plain language thus requires exclusion only if the accused establishes a sufficient causal relationship between the alleged violation of law and the procurement of the evidence sought to be suppressed. See Johnson, 871 S.W.2d at 749-51. Because this causal relationship is required, evidence is not and cannot be "obtained in violation of the law" if a crime had not been committed, and thus evidence of the crime did not exist, when the officer allegedly violated the law. See State v. Mayorga, 901 S.W.2d 943, 945-46 (Tex. Crim. App. 1995) (); Cooper v. State, 956 S.W.2d 95, 97 (Tex. App.--Tyler 1997, pet. ref'd) ( allegedly illegal arrest did not require suppression of evidence of assaulting a peace office under article 38.23 because evidence of assault did not exist before and thus was not obtained by allegedly illegal arrest). So it is here.
Rutherford alleges the State obtained his grand jury testimony in violation of the law because the assistant district attorney misrepresented his status as a suspect. However, because Rutherford's grand jury testimony did not exist before the alleged misrepresentation, the misrepresentation could not have been motivated by an effort to obtain evidence to use against Rutherford in an aggravated perjury prosecution. Suppression is therefore not required under article 38.23. Mayorga, 901 S.W.2d at 945-46. Accordingly, we hold the trial court erred in suppressing Rutherford's grand jury testimony in the aggravated perjury prosecution.
The State also argues the trial court erred in granting Rutherford's motion to dismiss the aggravated perjury indictment. We again agree.
Absent prosecutorial request, dismissal must be authorized by constitutional, statutory, or common law, see State v. Terrazas, 962 S.W.2d 38, 41 (Tex. Crim. App. 1998), such as when a defendant's Fifth Amendment right to a speedy trial has been violated, when a defendant's Sixth Amendment right to counsel has been violated, when there is a defect in the indictment, or when the indictment is unduly delayed. See id.; State v. Johnson, 821 S.W.2d 609, 612 n.2 (Tex. Crim. App. 1991).
In support of his motion to dismiss, Rutherford argued the State obtained his grand jury testimony in violation of his federal and state constitutional rights; articles 20.17, 38.21, and 38.22 of the Texas Code of Criminal Procedure; and article 30.007 of the Texas Civil Practice and Remedies Code.1 None of these grounds supports dismissal.
Article 20.17, the Privilege Against Self-Incrimination, and the Rights to Counsel and Due Process
Rutherford's dismissal motion centered upon the State's alleged failure to comply with its obligation under article 20.17 of the Texas Code of Criminal Procedure to inform him he was suspected of committing a crime. See TEX. CODE CRIM. PROC. ANN. art. 20.17(a) (Vernon Supp. 1998). If the State had met its obligation, Rutherford argues, he would have sought the assistance of his lawyer, who would have advised him to exercise his privilege against self-incrimination. Rutherford thus argues the State violated his privilege against self-incrimination and his rights to counsel and due process under the federal and state constitutions. See U.S. CONST. amends. V, VI, XIV; TEX. CONST. art. 1, 10, 19.
The privilege against self-incrimination protects a grand jury witness from being compelled to give self-incriminating testimony. See Andino v. State, 645 S.W.2d 615, 620 (Tex. App.--Austin 1983, no pet.). However, this privilege does not provide a witness with "protection for the commission of perjury." Butterfield v. State, 992 S.W.2d 448, 450 (Tex. Crim. App. 1999); see United States v. Wong, 431 U.S. 174, 178, 52 L. Ed. 2d 231, 97 S. Ct. 1823 (1977). As the Fifth Circuit has so aptly stated:
While we strongly disapprove of any prosecutorial misleading of a grand jury witness, it likewise would ill serve the administration of justice to suggest that a judicially cognizable nexus may exist between a grand jury witness' belief that he personally is not a target of the investigation and his decision to thereafter give false testimony under oath to the grand jury.
United States v. Williams, 874 F.2d 968, 975 (5th Cir. 1989); see United States v. Babb, 807 F.2d 272, 277 (1st Cir. 1986).2
A violation of due process is likewise no "defense to ... perjury." Yarbrough v. State, 617 S.W.2d 221, 229 (Tex. Crim. App. 1981). Similarly unavailing is...
To continue reading
Request your trial