Yarbrough v. State

• Decision Date: 20 May 1981
• Docket Number: No. 60856,No. 3,60856,3
• Parties: Donald B. YARBROUGH, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 221

617 S.W.2d 221

Donald B. YARBROUGH, Appellant, v. The STATE of Texas, Appellee.

No. 60856.

Court of Criminal Appeals of Texas, Panel No. 3.

May 20, 1981.

Rehearing Denied June 24, 1981.

Waggoner Carr, Austin, Tom S. McCorkle, Dallas, for appellant.

Ronald D. Earle, Dist. Atty., and Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, Carol S. Vance, Dist. Atty., James C. Brough and Henry K. Oncken, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, W. C. DAVIS and McCORMICK, JJ.

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for the offense of aggravated perjury. The punishment is imprisonment for five years.

The indictment under which the appellant was charged alleged, in pertinent part, that on June 28, 1977, he:

"did then and there personally appear at an official proceeding, to-wit: a regular session of the Travis County Grand Jury, April Term, 1977, held on the 28th day of June, 1977, and in connection with and during said official proceeding and after being duly sworn by Lynn Ellison, Assistant District Attorney of Travis County, Texas, authorized by law to administer oaths, he, the said (appellant) did knowingly and intentionally make, under oath, a false statement, said statement being, to-wit: that he, the said (appellant), did not meet with John William Rothkopf on the 16th day of May, 1977, in Travis County, Texas, whereas in truth and in fact he, the said (appellant) did meet with John William Rothkopf on the 16th day of May, 1977, in Travis County, Texas, and the said (appellant) 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 as to whether the said (appellant) on or about the 16th day of May, 1977, in the County of Travis and State of Texas, and acting with the intent to promote and assist the commission of the offense of forgery, did meet with the said John William Rothkopf and did knowingly and intentionally solicit, encourage, direct and aid the said John William Rothkopf to commit the offense of forgery of a writing, which said writing is, and purports to be, an instrument issued by the State of Alabama, County of Covington, the face of which said instrument is to the tenor as follows, to-wit:

and the reverse side of which said instrument is to the tenor as follows, to-wit:

* * * (instruments omitted)

and said false statement could have affected the course and outcome of said official proceeding, and said statement was required and authorized by law to be made under oath, ..."

At appellant's trial, John Rothkopf testified that he first met the appellant in December of 1973 and they became involved in various business ventures together. In May of 1975, the appellant assigned ownership of a 1974 Monte Carlo automobile to Mr. Rothkopf. The appellant then instructed Mr. Rothkopf to go to the Commercial Bank in Victoria, where the appellant was the majority shareholder, to secure a loan of $4,000 on the automobile. The appellant further instructed him to complete the transaction with Bill Kemp, the bank president, and to leave $2,000 of the proceeds with Kemp. A bank employee subsequently testified that no payments were ever made on the loan and that the bank "charged off" the loan as a loss. The bank still retained the original certificate of title of ownership to the car.

Rothkopf continued his testimony stating that after he received his portion of the loan proceeds, the appellant instructed him to leave Texas in order to "lay low." Rothkopf went to New Orleans and remained there for approximately one year. During that time the appellant provided money for him to live on. Also, the appellant provided him with license plates from the state of Texas, Louisiana and Alabama for the Monte Carlo. When the appellant gave Rothkopf the Alabama license plates, he also gave him an Alabama Motor Vehicle Registration and Tax Receipt listing the Monte Carlo as registered to Billy Ray Waller of Andalusia, Alabama. After Rothkopf's year in New Orleans, the appellant helped him obtain a driver's license in the name of Roger Jack Conway. Appellant told Rothkopf that Mr. Conway was dead.

On May 2, 1977, Rothkopf was arrested in Texas. He agreed to cooperate with the authorities and arranged to meet with the appellant. After meeting with the appellant a few earlier times, Rothkopf met with him twice on May 16, 1977 in Austin, Texas. During these meetings, Rothkopf was wearing a recording device. Portions of the recorded conversation were admitted in evidence. During the second meeting, the appellant produced another Alabama Motor Vehicle Registration and Tax Receipt for the Monte Carlo. Like the previous receipt, the automobile was registered to Billy Ray Waller of Andalusia, Alabama. The appellant instructed Rothkopf to endorse the name "Billy Ray Waller" on the front of the instrument and to sign the name "Roger Conway" on the back of the instrument. The purpose of this was to make it appear that Conway purchased the automobile from Waller in Alabama. The appellant then instructed Rothkopf to go to a county courthouse and attempt to get the title transferred to Texas.

At trial, a police officer from Andalusia, Alabama testified that he was unable to find anyone in Andalusia by the name of Billy Ray Waller. Billy Ray Waller of Houston, Texas, testified that he had never lived in Alabama, that he had never owned a 1974 Monte Carlo, and that he had not given the appellant permission to register the vehicle in his name or to sign his name.

Two members of the Travis County Grand Jury testified that the appellant appeared before the grand jury on June 28, 1977. The appellant appeared before them voluntarily after the grand jury had invited him to appear. The appellant testified under oath before the grand jury that he did not meet with Rothkopf on May 16, 1977.

An assistant district attorney for Harris County and an investigator with the District Attorney of Harris County testified that they observed a meeting between Rothkopf and the appellant on May 16, 1977. As noted earlier, a portion of tape recording of the conversation between the two on May 16, 1977 was also admitted in evidence.

The appellant in his first two grounds of error complains that the trial court erred in allowing evidence of extraneous offenses to be admitted. He contends that evidence of the forgery of the car registration and the theft of $4,000 from the bank was calculated to inflame the jury and prejudice the appellant.

This Court has consistently held that an accused shall not be tried for some collateral crime or for being a criminal generally. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972); Saunders v. State, 572 S.W.2d 944 (Tex.Cr.App.1978). As a general rule, evidence of extraneous offenses is inadmissible; however, several exceptions to this general rule exist. For evidence of an extraneous offense to be admissible, as with all evidence, it must be material and the relevancy to a material issue must outweigh its prejudicial or inflammatory potential. McCann v. State, 606 S.W.2d 897 (Tex.Cr.App.1980). We stated in Albrecht v. State, supra, that:

"The circumstances which justify the admission of evidence of extraneous offenses are as varied as the factual contexts of the cases in which the question of the admissibility of such evidence arises. Each case must be determined on its own merits."

In the case at bar the evidence of these offenses was admissible to establish the appellant's motive to commit perjury. Barefoot v. State, 596 S.W.2d 875 (Tex.Cr.App.1980); Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.1980). The appellant, in testifying falsely before the grand jury, sought to prevent the detection of these crimes. Evidence of these extraneous offenses was relevant as a circumstance tending to prove the commission of the offense of aggravated perjury.

Furthermore, the evidence of these extraneous offenses would be admissible to prove two elements of the offense. V.T.C.A. Penal Code, Sec. 37.02, states:

"A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning:

(1) he makes a false statement under oath or swears to the truth of a false statement previously made; and

(2) the statement is required or authorized by law to be made under oath."

Here the evidence of the forgery and the theft was essential to show that the appellant made the statement knowing its meaning and intending to deceive the grand jury. Neither the knowledge nor the intent could be inferred from the act of making the false statement. The trial court did not err in admitting the evidence. McCarron v. State, 605 S.W.2d 589 (Tex.Cr.App.1980); Davis v. State, 107 Tex.Cr.R. 389, 296 S.W. 605 (1925); Albrecht v. State, supra. The appellant's grounds of error are overruled.

In his next ground of error the appellant asserts that the trial court erred in admitting in evidence a video tape recording of the appellant and Don Shelby. Mr. Shelby was a Houston television newsman who interviewed the appellant on June 10, 1977. The entire portion of interview that was played before the jury is as follows:

"(Mr. Shelby): If you could get in touch with Mr. Rothkopf, could you convince him to come back here and talk, or would he talk to me if I went wherever he is?

(Appellant): Oh, I think he would, I think he would. My suspicion, very frankly, is I feel like he probably is either out of the country and may not know what all is going on in all its details. He may have some general or vague idea, but I don't think he is in my understanding is that he is either in Seattle or in British Columbia."

Mr. Shelby testified that he had been interviewing the appellant about a previous business that Rothkopf and the appellant had been involved in together. They discussed the troubles that had befallen the...