Opinion
No. 08-01-00081-CR
August 28, 2003 (Do Not Publish)
Appeal from 409th District Court of El Paso County, Texas (TC# 2000-0D0-4570)
Before: LARSEN, McCLURE, and CHEW, JJ.
MEMORANDUM OPINION
This opinion is the latest in the continuing saga of confidential information about an ongoing police investigation which was leaked to the local media. Deputy Chief Cerjio Martinez and Assistant Chief George DeAngelis were considered possible suspects. A criminal investigation into the leak itself focused on misuse of official information proscribed by Section 39.06 of the Texas Penal Code. Neither Martinez nor DeAngelis was indicted for that offense. Instead, they were indicted for aggravated perjury based on inconsistencies between sworn statements to the grand jury and surreptitiously tape recorded conversations with El Paso Assistant City Attorney, Stephanie Osburn. Prior to trial, Martinez sought suppression of his statement, which the trial court granted based upon the State's failure to comply with Tex. Code Crim.Proc.Ann. art. 20.17 (Vernon Supp. 2003). The State filed an interlocutory appeal and we affirmed. State v. Martinez, 92 S.W.3d 10, (Tex.App.-El Paso 2001), rev'd, 1 S.W.3d 331 (Tex.Crim.App. 2002). We first expressed our agreement with the trial court that the State had failed to substantially comply with Article 20.17. Martinez, 92 S.W.3d at 15. We then concluded that because Martinez was not informed that he was a suspect before giving his sworn statement, Article 38.23 required its exclusion. Tex. Code Crim.Proc.Ann. art. 38.23 (Vernon Pamphlet 2003). Martinez, 92 S.W.3d at 16. The Court of Criminal Appeals reversed and remanded the cause to this court, finding that when a witness chooses to answer questions presented by the grand jury, even if those questions are propounded in violation of Article 20.17, the witness is not at liberty to lie. "A state official's noncompliance with statutory requirements does not confer a privilege to commit perjury." Martinez, 91 S.W.3d at 340. In compliance with their mandate, we reverse and remand the cause to the trial court for proceedings consistent with the directive of the Court of Criminal Appeals.