Opinion
No. 09-05-127 CR
Submitted on July 11, 2006.
Opinion Delivered August 9, 2006. DO NOT PUBLISH.
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Cause No. 91504. Affirmed.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
A jury convicted appellant David Lee Routt of robbery and assessed punishment at ten years of confinement. In a single issue on appeal, Routt asserts that one of the State's witnesses committed perjury regarding special treatment received in exchange for his testimony, and the witness's perjury materially affected the outcome of the trial. We affirm. Routt contends that Joseph Howard, a witness for the State and a co-participant in the robbery, committed perjury when he testified that he did not receive a plea bargain in exchange for his testimony. Howard testified that he had two prior convictions for state jail felonies and a prior conviction for burglary. When asked whether he was testifying "to get somebody to cut you some slack on this sentencing," Howard responded that he was facing the same charge and could receive up to twenty years of confinement. When asked why he agreed to testify, Howard stated, "Because I'm sorry for what I did." As Routt correctly points out, the Texas Penal Code provides that "If it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony." Tex. Pen. Code Ann. § 12.42(b) (Vernon Supp. 2005). The punishment range for a first-degree felony is five to ninety-nine years of confinement. Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003). Routt asserts that because Howard had a prior conviction for burglary, "it is impossible for him to only be facing a maximum of twenty (20) years in the penitentiary for this crime unless he had an agreement with the State not to enhance his indictment with his prior convictions." Routt maintains that the "extremely large variance in the possible penitentiary time the witness could have been sentenced to serve constitutes an enticing incentive for the witness to commit perjury and place the primary responsibility for the robbery on [Routt]." Routt asserts that because the State chose not to enhance Routt's sentence, Routt must have committed perjury when he denied having a plea bargain with the State. Initially, we note that Routt did not object to Howard's allegedly perjured testimony or file a motion for new trial. See Tex.R.App.P. 33.1(a). However, assuming arguendo that Routt preserved the issue for our review, he bears the burden of showing that Howard's testimony was false. See Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App. 1983). An allegation of perjury must be supported by the record. Id. The record before us does not reflect why the State may have chosen not to enhance Howard's sentence, nor does it demonstrate that Howard's testimony was false. See Tex. Pen. Code Ann. § 37.02 (Vernon 2003). Accordingly, we overrule Routt's sole issue and affirm the trial court's judgment.