Sweaney v. State
| Decision Date | 05 May 1982 |
| Docket Number | No. 2-81-142-CR,2-81-142-CR |
| Citation | 632 S.W.2d 932 |
| Parties | Gary Duane SWEANEY, Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Anderson, Anderson & Rodriguez and Rosendo Rodriguez, Jr., Wichita Falls, for appellants.
Timothy D. Eyssen, Dist. Atty., and Donald E. Maxfield, Asst. Dist. Atty., Wichita Falls, for State.
Before HUGHES, RICHARD L. BROWN and HOLMAN, JJ.
This appeal is from conviction of aggravated perjury. V.T.C.A. Penal Code § 37.03.
The jury assessed punishment at 4 years imprisonment.
We affirm.
Appellant complains that (1) his motion in arrest of judgment should have been granted, because the indictment was amended unlawfully as to a matter of substance; (2) the trial court failed to instruct the jury correctly on the presumption of innocence; or (3) that to convict for the offense charged requires proof greater than the testimony of one witness other than the accused; (4) that the prosecutor's opening statement included unsworn testimony; and (5) appellant was denied the right to address the jury in closing arguments.
Appellant was indicted for allegedly false testimony he had given in a trial styled "The State of Texas v. Noble D. Mays, Jr.", in the 89th District Court, Cause No. 18557-C, in Wichita County.
The testimony alleged as false in the indictment was:
"(T)hat on a week-end during the latter part of the month of March, 1979, the said Gary Duane Sweany went to the Sheppard Air Force Base Officer's Club as a guest, of a Lt. Wayne Semenok, signed his name at said Officer's Club as a guest, and while present inside said Officer's Club, he, the said Gary Duane Sweaney, personally observed one Moore, a witness in said official proceeding, with another person, one Jerry Lamb, and personally observed the said Moore leave the said Officer's Club together with the said Jerry Lamb; whereas, in truth and in fact, the said Gary Duane Sweaney did not at any time during the month of March, 1979, go to the Sheppard Air Force Base Officer's Club as a guest of Lt. Wayne Semenok; that said Gary Duane Sweaney did not sign his name as a guest at said Officer's Club; while present inside the Officer's Club did not observe the witness Moore together with the said Jerry Lamb; and while present inside the Officer's Club did not observe the said Moore and the said Jerry Lamb leave the Officer's Club together; and the said Gary Duane Sweaney made said 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, 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."
At pre-trial hearing, April 10, 1980, the court granted the State's motion to amend the indictment to correctly spell the lieutenant's surname as Semenok, instead of Semerrok.
There is no contention that this would be a case of idem sonans.
The State does contend, however, that on April 10, 1980, appellant voluntarily and knowingly waived his right to a new indictment, after consultation with his attorney.
With his counsel's approval, appellant signed the following waiver under oath;
At the pre-trial hearing, the court informed appellant of his right to demand a new indictment, and appellant testified that he understood, but freely and voluntarily waived, that right.
The court also informed appellant that the amendment would entitle him to a continuance, but appellant confirmed his desire to begin trial April 14, 1980.
Appellant now complains that the change in spelling Lt. Semenok's name was a change of substance, forbidden by V.A.C.C.P., art. 28.10, requiring reversal of his conviction.
Appellant also relies upon V.A.C.C.P., art. 1.05 and Art. I, Section 10 of the Texas Constitution, as authority that a person may not be held to answer for a felony except on the indictment of a grand jury.
The law, however, also recognizes the right of an accused to waive any of his rights except that of trial by jury in a capital felony case. V.A.C.C.P. art. 1.14.
In this, a non-capital felony case, appellant could have waived the entire indictment, had he wished. V.A.C.C.P. art. 1.141; Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980).
We agree with the State's argument that if the lieutenant's name had been omitted entirely from the original indictment, the omission would not have affected the subject matter or general import of the allegation of aggravated perjury. V.A.C.C.P. art. 21.14.
We hold that the amendment after appellant's voluntary...
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