No. 05-06-00009-CR
Opinion issued September 18, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F05-00988-SL. Affirmed.
Before Chief Justice THOMAS and Justices WRIGHT and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
Appellant was charged by indictment with aggravated perjury. See Tex. Pen. Code Ann. §§ 37.02, 37.03(a), 37.06 (Vernon 2003). Following a trial on his not guilty plea, the jury found appellant guilty and assessed punishment, enhanced by one prior felony conviction, at seven years' imprisonment and a $2000 fine. See id. § 12.42(a)(3) (Vernon Supp. 2006). In one point of error, appellant contends the trial court erred in denying defense counsel an opportunity at the punishment phase of trial to rejoin the State's rebuttal argument. We affirm the trial court's judgment.
In relevant part, the indictment charged that appellant, [o]n or about the 15th day of December A.D., 2003 in the County of Dallas and said State,
did then and there, with the intent to deceive and with knowledge of the statements' meanings, make two inconsistent statements under oath, one of the two statements being necessarily false, the first of such statements being that the defendant was not present at a Holiday Inn on January 30, 2000, when an aggravated robbery was committed, such sworn statement being then and there required by law to be made under oath, while the said defendant was then and there under oath, and the second of such statements being that the defendant was present at a Holiday Inn on January 30, 2000, when an aggravated robbery was committed, such statement being then and there required by law to be made under oath, while the said defendant was then and there under oath, and the first statement was made on August 24, 2000, during or in connection with an official proceeding, to-wit: in cause numbe[r] F00-20904-NJ in the Criminal District Court #3 of Dallas County, Texas, styled The State of Texas vs. Courtney Eugene Peace, and said statement was then and there material, and the second statement was made on December 15, 2003, during or in connection with an official proceeding, to wit: in Cause No. W00-20905-J(B), in the Criminal District Court #3, of Dallas County, Texas, and styled Ex parte Nakia Strange, and said statement was then and there material,
And it is further presented to said Court that prior to the commission of the aforesaid offense, the said defendant was convicted of a felony offense of Aggravated Robbery, on the 28th day of August, 2000, A.D., in Cause Number F-0020904-NJ on the docket of Criminal District Court #3, of Dallas County, Texas under the name of COURTNEY EUGENE PEACE and said conviction was a final conviction . . .
The trial court denied defense counsel's motion to quash the enhancement paragraph.
Facts
In August 2000, appellant and Nakia Strange were tried jointly for several offenses, including two aggravated robberies that occurred in the parking lot of a Holiday Inn. Both appellant and strange were convicted of the aggravated robberies. During that joint trial, appellant testified, and claimed he was innocent of the robberies because he was not present at the Holiday Inn at the time of the robberies on January 30, 2000. On December 15, 2003, appellant testified, under subpoena, at a 11.07 writ hearing for Nakia Strange. After being sworn and specifically admonished on perjury, appellant testified he was present during the aggravated robberies on January 30, 2000 at the Holiday Inn, and had personal knowledge that Strange was not involved in the robberies. Appellant was indicted for aggravated perjury based on those two conflicting statements. In his perjury trial, appellant testified that he testified falsely in the 2000 robbery trials when he said he was not present at the Holiday Inn at the time of the robberies. Appellant further testified he did so upon instructions of his defense counsel Angela N'Duka. Appellant admitted he lied during the aggravated robbery trials but testified he told the truth at the writ hearing. N'Duka testified appellant never told her he was at the scene of the robberies and she did not tell appellant to lie when testifying during his aggravated robbery trials. The State argued in the guilt-innocence phase of the aggravated perjury trial that witnesses identified appellant as being at the scene of the robberies and appellant was caught shortly after the robberies with a check belonging to one of the robbery victims. The State also argued that appellant manipulated the system by making two inconsistent statements, and he exacerbated the manipulation by claiming he was not under oath when he testified at the writ hearing and that his lawyer told him do it. At the punishment phase of trial, the State offered proof of appellant's 2000 robbery convictions and proof they were final convictions. Appellant called three character witnesses who testified on his behalf. At the conclusion of the punishment phase, the State argued appellant committed the aggravated perjury while he was in prison for the robberies, and thus he should be punished more harshly because he had not learned his lesson and was continuing to commit new offenses. Defense counsel wanted to argue appellant was not a repeat offender because the offense of perjury "supposedly" occurred before he was convicted of the aggravated robbery alleged in the enhancement paragraph. Counsel wanted to argue to the jury that if appellant's writ testimony was true, i.e., that he was present at the Holiday Inn, then appellant should not be punished as a recidivist because the false statement was made during the robbery trial which resulted in the final robbery conviction alleged in the enhancement paragraph. Therefore, counsel wanted to argue appellant was not a recidivist and should not be punished more harshly. The trial court disallowed such an argument. Defense counsel made a bill of exceptions after the jury retired to deliberate. Denial of Rejoinder Argument
In his sole point of error, appellant contends the trial court erred in denying defense counsel an opportunity at the punishment phase of trial to rejoin the State's rebuttal argument because the State's argument cast appellant's criminal history in a false light. The State responds no error is shown because it is undisputed the State has the right to make the final closing argument to the jury and appellant had no right of rejoinder. Moreover, says the State, its argument did not cast appellant's criminal history in a false light because he was a repeat offender; thus, appellant's point is without merit. Alternatively, the State argues even if error is found, it is harmless, and appellant's conviction should be affirmed. Applicable Law
The statutory right to argue at the close of the evidence is derived by inference from articles 36.07 and 36.08 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 36.07, 36.08 (Vernon 1981); Dang v. State, 154 S.W.3d 616, 619 (Tex.Crim.App. 2005). Article 36.07 gives the trial court broad discretion regarding the general order of arguments with the caveat that the State has the right to present the concluding argument. Tex. Code Crim. Proc. Ann. art. 36.07; Dang, 154 S.W.3d at 619020. Texas courts have held a defendant has no right to get in the final word. See Varela v. State, 561 S.W.2d 186, 192 (Tex.Crim.App. 1978); Martinez v. State, 501 S.W.2d 130, 132 (Tex.Crim.App. 1973); see also Tex. Code Crim. Proc. Ann. art. 36.07. Analysis
Distilled, appellant's position in this case, as evidenced by his bill of exceptions, is that two separate acts of perjury occurred, or put another way, that each inconsistent statement was a separate act of perjury. Conversely, the State's position is that one perjury offense under section 37.06 occurred. See Tex. Pen. Code Ann. § 37.06 (indictment alleging inconsistent statements under oath, both of which cannot be true, need not allege, and prosecution need not prove which statement is false). By arguing appellant committed perjury when he made the second inconsistent statement at the writ hearing, the State was arguing that the offense, as charged, was completed at that time. See Ex parte Tamez, 4 S.W.3d 854, 856-57 (Tex.App.-Houston [1st Dist.] 1999) (holding 37.06 creates separate offense and first statement only one part of crime, which is not complete until second, inconsistent statement made), aff'd on other grounds, 38 S.W.3d 159 (Tex.Crim.App. 2001); see also Barnes v. State, 824 S.W.2d 560, 562 (Tex.Crim.App. 1991) (holding crime complete for statute of limitations purposes only when all elements completed), overruled on other grounds by Proctor v. State, 967 S.W.2d 840 (Tex.Crim.App. 1998). Appellant cites no case where a trial court permitted rejoinder argument by the defense. He nevertheless argues the right to additional argument, subject to the State's sur-rebuttal, is not foreclosed upon a proper showing of need. Appellant relies on Palasota v. State, 460 S.W.2d 137, 140 (Tex.Crim.App. 1970), and Housley v. State, 1994 WL 235672 (Tex.App.-Houston [14th Dist.] 1994, no pet.) (not designated for publication), as authority that the trial court has discretion to grant rejoinder to correct a misstatement of the record. Appellant points to his bill of exceptions as establishing his need for additional argument. Appellant further argues that, on balance, under the factors set out in Dang, additional argument should have been permitted and the trial court abused its discretion in denying his request. Thus, appellant contends, a new trial is required. The State disagrees, arguing appellant's complaint is without merit for several reasons. First, the State's argument is supported by the habitual offender statute. See generally Tex. Pen. Code Ann. § 12.42. Second, appellant was a repeat offender, and the State proved appellant had two prior, final aggravated robbery convictions. The State further argues the offense of aggravated perjury, as charged, was not complete until appellant made the second inconsistent statement at the writ hearing on December 15, 2003, a date after the aggravated robbery convictions became final as a result of the mandates having been issued. Finally, the State contends a fair reading of the record shows appellant is incorrect that the State argued at the first phase of the perjury trial that appellant lied in his robbery trials and then argued at the second phase of trial appellant lied in his writ testimony. Therefore, appellant had no need to rejoin the State's argument because it was not improper, and the trial court did not err. See Burnett v. State, 959 S.W.2d, 652, 660-61 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd); Rankin v. State, 872 S.W.2d 279, 286 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd), vacated on other grounds, 974 S.W.2d 707 (Tex.Crim.App. 1999); Nelson v. State, 828 S.W.2d 185, 187 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd). Appellant concedes the rejoinder right he sought was conditioned "upon a proper showing of need." Appellant further concedes he anticipated the State's argument, as evidenced by his statement, "As a last resort, once the State had made the same disingenuous argument that defense counsel had predicted," he requested a rejoinder. Defense counsel could have used part of his argument to respond to that "predicted" argument by the State. We conclude appellant has not made a proper showing of need. Alternatively, even if the trial court erred, under the analysis urged by appellant and the factors set out in Dang, we conclude any error was harmless, particularly in light of the overwhelming evidence of appellant's guilt, a factor to be considered. See Dang, 154 S.W.3d at 621. Appellant admitted he lied during his robbery trials. Moreover, a transcription of the testimony from the aggravated robbery trial was admitted into evidence, as well as oral testimony about the inconsistent statements. The evidence of appellant's commission of the offense of perjury was overwhelming. We overrule appellant's sole point of error. We affirm the trial court's judgment.