
Opinion issued May 18, 2006






3/3


     


                                            
                                          
In The
Court of Appeals
For The
First District of Texas




NO. 01-05-00142-CR




MICHAEL EUGENE McGEE, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 987117




O P I N I O N

            A jury found appellant, Michael Eugene McGee, guilty of unauthorized use of
a motor vehicle.  Appellant pleaded true to two prior felony convictions, and the jury
assessed punishment at 20 years’ imprisonment.  Appellant challenges his conviction
on the grounds that testimony offered by the State during the penalty phase of the trial
was not relevant to sentencing.  For the reasons that follow, we affirm.
BACKGROUND
        At trial, complainant, Dorothy O’Brien, testified that shortly after midnight, on
April 16, 2004,  she pulled into a gas station after completing a catering job.  As she
got out of her vehicle,  appellant grabbed her from behind, put a knife to her throat,
and pushed her into her car.  She further testified that appellant drove her vehicle to
his friend’s vacant apartment and held her hostage for eight hours.  Sometime during
the early morning hours, complainant noticed that appellant had left the apartment,
whereupon she fled and was assisted by a tenant of the apartment complex, who took
her to the leasing office to call the authorities. Complainant testified that she did not
need medical attention and was taken home in a cab. 
          Appellant’s version of the events differed. Appellant testified that he met the
complainant at the house of a friend, who operated an after-hours “bootlegger” joint.
Appellant explained that complainant was drinking at his friend’s house when he
arrived that evening, and that he and complainant drank there together from about
8:00 p.m. until midnight.  Complainant then offered him a ride home.  However, upon
discovering that she was too intoxicated to drive, he drove her to his friend’s vacant
apartment to sober up. Appellant denied abducting her at knifepoint and stated that
they talked at the vacant apartment for about six hours. According to appellant,
complainant let him borrow her car at about 6:00 a.m. to go to his ex-girlfriend’s
house, and he planned on being gone for about 20-30 minutes.  Appellant testified
that he entered his ex-girlfriend’s house, leaving the keys in complainant’s car, and
that when he came back outside, the car was gone. 
          The jury acquitted appellant of aggravated robbery, but  found him guilty of the
lesser-included offense of unauthorized use of a motor vehicle.
  During the
punishment phase of the trial, the court, over  appellant’s objection that the testimony
amounted to the State’s attempting to relitigate appellant’s guilt as to the aggravated
robbery, allowed the State to put on three witnesses who testified about the
complainant’s whereabouts the night of the incident.  The State argued at trial that the
testimony was evidence of a prior bad act, perjury. Appellant’s counsel argued,
“[W]ho’s to say that because these witnesses testified to different facts that that
necessarily means he committed perjury?”  The trial court reasoned, “I guess the jury
is to say.”  The trial court added, “[B]ut I think the words of the Code itself lets this
is in . . . on a bad act if the jury makes the decision that in fact, this is an extraneous
[offense] of perjury.”
          The first witness testified that he helped complainant unload her car with food
to be catered at a bachelorette party at 9:05 p.m.  He also testified that he helped her
reload her car around 10:00 p.m., and accompanied her to TT’s  Lounge.  Finally, he
testified that he saw complainant leave TT’s  Lounge with another woman at about
12:45 p.m. and that he never saw appellant and complainant  together that night.  The
second witness, a friend of complainant, testified that complainant picked her up at
her house around 9:00 p.m. and brought her back home at about 1:00 a.m. The third
witness, complainant’s neighbor, testified that, around 8:45 p.m. on the evening in
question, he helped complainant load her car with coolers of food to be catered at a
bachelorette party.  He also testified as to when complainant came home the
following morning:
Q: Do you remember—do you remember her coming home in a cab that
day at any point or how she got home that day, that following morning
when you didn’t see her car?
 
A: It was about that afternoon, I think.  No.  I don’t know exactly what
time, but I did see her come in a cab.  I know it was in the early morning
time.  I don’t know if it was noon or not.
 
Q: So she did end up coming home in a cab and she didn’t have her car?
 
A: No, she didn’t have her car.

          The jury assessed appellant’s punishment for unauthorized use of a motor
vehicle at the statutory maximum of 20 years.
DISCUSSION
            In his sole point of error, appellant argues that the testimony of the three
witnesses offered by the State during the punishment phase of trial was not relevant
to determining his punishment under article 37.07 of the Texas Code of Criminal
Procedure and implicated his Fifth Amendment right against double jeopardy.
          The standard of review for a trial court’s admission or exclusion of evidence
is abuse of discretion.  Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App.
1996). As long as the trial court’s evidentiary ruling is within the zone of reasonable
disagreement, an appellate court may not disturb it.  Id. at 102.
Article 37.07 of the Texas Code of Criminal Procedure reads:
[R]egardless of the plea and whether the punishment be assessed by the
judge or the jury, evidence may be offered by the state and the defendant
as to any matter the court deems relevant to sentencing, including but
not limited to the prior criminal record of the defendant, his general
reputation, his character, an opinion regarding his character, the
circumstances of the offense for which he is being tried, and,
notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other
evidence of an extraneous crime or bad act that is shown beyond a
reasonable doubt by evidence to have been committed by the defendant
or for which he could be held criminally responsible, regardless of
whether he has previously been charged with or finally convicted of the
crime or act.   

Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2005).  In Erazo v.
State, the Court of Criminal Appeals explained that, insofar as concerns this portion
of the code, “relevance during the punishment phase of a non-capital trial is
determined by what is helpful to the jury.”  144 S.W.3d 487, 491 (Tex. Crim. App.
2004) (emphasis omitted). 
          Appellant argues that because the jury necessarily believed his version of the
events of the incident, at least as concerns the aggravated robbery, the State was
impermissibly trying to relitigate the guilt/innocence portion of the trial by having
witnesses testify to events and circumstances surrounding the aggravated robbery
rather than the unauthorized use of a motor vehicle.
          In support of his contention, appellant cites Bisby v. State and Garcia v. State. 
907 S.W.2d 949, 959–60 (Tex. App.—Fort Worth, 1995 pet. ref’d); 704 S.W.2d 495,
498-99 (Tex. App.—Corpus Christi, 1986 no pet.).  The Bisby Court held that a
defendant’s attempt to introduce evidence at the punishment phase of the trial that he
was not the person who shot complainant was irrelevant because it concerned his
guilt or innocence, not the proper punishment.  Bisby, 907 S.W.2d at 959–60. 
Likewise, the Garcia Court upheld the trial court’s exclusion of the defendant’s
attempt to introduce impeachment evidence that the State’s witnesses had consumed
more alcohol at the time of the incident than they had admitted to because “[s]uch
impeachment evidence might be collateral testimony regarding appellant’s guilt, but
would be of no import in determining punishment so as to require reversal.”  Garcia,
704 S.W.2d at 499; see also Oregon v. Guzek, 126 S. Ct. 1226, 1228 (2006) (holding
that there is no Eighth of Fourteenth Amendment rights to present alibi evidence at
punishment phase of capital murder trial).
          We hold that, in a case like this where there is an acquittal on one of the
charges and a conviction on another the State cannot relitigate the acquittal at the
punishment phase hearing by introducing testimony that is relevant only to the charge
on which the defendant was acquitted.  However, we must still determine whether the
evidence in the present case constitutes such impermissible relitigation.  Article 37.07
states that evidence of prior bad acts is admissible at the punishment phase if they can
be established beyond a reasonable doubt.  Tex. Code Crim. Proc. Ann. art. 37.07
§ 3(a)(1) (Vernon Supp. 2005).  The trial court admitted the testimony of the three
witnesses under the theory that the evidence was relevant to show the prior bad act
of perjury by appellant during the guilt/innocence phase of the trial.  We agree with
the trial court.  If the three witnesses’ testimony was true, then appellant was not
telling the truth when he testified during the guilt stage.  This constitutes the offense
of aggravated perjury.  See Tex. Pen. Code Ann. § 37.03 (Vernon 2005).  We hold
that the trial court did not abuse its discretion in admitting the evidence.
          Accordingly, we overrule appellant’s sole point of error.
CONCLUSION
          We affirm the judgment of the trial court.
 
                                                                        Sam Nuchia
                                                                        Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.

Justice Keyes dissenting in part, concurring in part, and concurring in the judgment.

Publish. Tex. R. App. P. 47.2(b).

 









 
 
 
 
 
 
 
 
