COURTNEY PEACE, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRMED; Opinion issued September 18, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00009-CR
............................
COURTNEY PEACE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F05-00988-SL
.............................................................
OPINION
Before Chief Justice Thomas and Justices Wright and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant was charged by indictment with aggravated perjury.   See Footnote 2  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).   See Footnote 3  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.
 
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.   See Footnote 4  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.   See Footnote 5  On December 15, 2003, appellant testified, under subpoena, at a 11.07   See Footnote 6  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.   See Footnote 7  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.   See Footnote 8  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.   See Footnote 9 
        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.   See Footnote 10  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.   See Footnote 11  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.   See Footnote 12 
 
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.   See Footnote 13  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.   See Footnote 14  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),   See Footnote 15  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.   See Footnote 16  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.   See Footnote 17  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.
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
060009F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 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. . . .
Footnote 3 The trial court denied defense counsel's motion to quash the enhancement paragraph.
Footnote 4 Appellant received a fifteen-year sentence for each aggravated robbery.
Footnote 5 A transcription of the testimony from the aggravated robbery trial was admitted into evidence as State's Exhibit no. 1 at appellant's perjury trial.
Footnote 6 Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005).
Footnote 7 The trial court overruled defense counsel's objection that appellant's writ testimony was not admissible because it was not given under a proper oath.
Footnote 8 Appellant claimed he told his attorney “everything” about the aggravated robberies but there were some things she did not want him to tell the court because she did not want him to be considered an accomplice.
Footnote 9 Appellant filed a grievance against N'Duka; however, the grievance was dismissed.
Footnote 10 Evidence of both aggravated robberies was admitted, but only one is alleged in the indictment, cause number F00-20904-NJ. The appeals of the aggravated robbery convictions were transferred to the Eleventh District Court of Appeals by order of the Texas Supreme Court. The Eleventh court's mandate in trial court cause number F00-20904-NJ ( appellate number 11-01-00408-CR) was signed by the deputy clerk on March 25, 2003, and filed on April 1, 2003 in the Dallas County District Clerk's Office. It appears in the record as State's Exhibit no. 10.
Footnote 11 Appellant points to the following State's argument:
 
 
 
It doesn't matter what warnings he gets by the magistrate or the judge. It doesn't matter. “Sir, you're potentially going to be prosecuted for aggravated perjury.” He goes on and perjures himself. Because it's all about him. He thinks he's so smart, he can fool everyone. He can beat the system. He can take the property that he wants. And he's going to do it, and he's going to take any means necessary to do it.
Footnote 12 Defense counsel made the following statement in his bill of exceptions:
 
 
 
        I wish to make a bill in regard to questions I would have asked or would have-arguments I would have made in front of the jury, had I been permitted to do so.
 
 
 
        One, in regard to-there were two separate acts of perjury. I would like to have been able to respond to the State alleging that he did not learn his lesson, because he committed an act of perjury while in prison. It was not within-because of the way the law was structured, I was not able to argue that the first act was perjurious and, therefore-that he did not have a post criminal act after the trial.
 
 
 
        And I would ask a complete line of questions in that regard, Your Honor. Thank you. That's my record.
Footnote 13 In Dang, the Court assumed an implicit right to closing argument exists because the legislature addressed the order in which arguments should be presented. Dang, 154 S.W.3d at 620.
Footnote 14 Of course, one statement alone, whether true or false, could not comprise a perjury offense under section 37.06. An offense under that section requires two inconsistent statements, both of which cannot be true. Section 37.06 implicates sections 37.02 and 37.03. A true statement alone could not comprise the offense of perjury under either section 37.02 or 37.03 because those sections require a false statement made with the intent to deceive and with knowledge of the statement's meaning. By requiring that one of the two inconsistent statements under 37.06, of necessity, be false, the deceptive component of sections 37.02 and 37.03 is fulfilled. See Ex parte Tamez, 4 S.W.3d 854, 857 (Tex. App.-Houston [1st Dist.] 1999) (requiring one of statements for which defendant is prosecuted to be perjurious), aff'd on other grounds, 38 S.W.3d 159 (Tex. Crim. App. 2001).
Footnote 15 Unpublished opinions have no precedential value and are to be cited with the notation “not designated for publication.” See Tex. R. App. P. 47.7.
Footnote 16 The State points to article 37.06 as not requiring the State to either plead or prove which statement is false, and argues it had no need to argue which statement was false.
Footnote 17 The factors discussed in Dang were used to determine whether the trial court abused its discretion. However, the court stated, “All of these factors have some relevance to a reviewing court's inquiry, though some may be more appropriate to considering whether a defendant has preserved the complaint for review or for determining whether the defendant was harmed.” Dang, 154 S.W.3d at 621.

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