                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00376-CR

SAMUEL UKWUACHU,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2014-1202-C2


                           MEMORANDUM OPINION


      Samuel Ukwuachu appeals from a conviction for the offense of sexual assault.

TEX. PENAL CODE ANN. § 22.011. In six issues, Ukwuachu complains that his due process

rights were violated due to the presentation of false testimony relating to cell phone

records of his roommate during the State’s cross-examination of his roommate's friend

(issue one) and his roommate (issue two); that the indictment was defective; that evidence

of an extraneous offense was improperly admitted; that his due process rights were
violated due to an abuse of the grand jury process by the State; and that text messages

between the victim and a friend of hers the night of the alleged offense were improperly

excluded. Because we find that Ukwuachu's due process rights were violated by the use

of false testimony, we reverse the judgment of the trial court and remand for a new trial. 1

INDICTMENT

        Because the validity of the indictment would result in the greatest relief if granted,

we will address that issue first.         In his third issue, Ukwuachu complains that the

indictment against him is facially insufficient for failing to allege the manner and means

in which the lack of consent was obtained. Ukwuachu did not file a motion to quash the

indictment prior to trial.

        "The sufficiency of an indictment is a question of law." State v. Moff, 154 S.W.3d

599, 601 (Tex. Crim. App. 2004). "[T]o comprise an indictment within the definition

provided by the constitution, an instrument must charge: (1) a person; (2) with the

commission of an offense." Cook v. State, 902 S.W.2d 471, 477 (Tex. Crim. App. 1995). "[A]

written instrument is an indictment or information under the Constitution if it accuses

someone of a crime with enough clarity and specificity to identify the penal statute under

which the State intends to prosecute, even if the instrument is otherwise defective."




1We initially reversed the judgment based on the issue relating to the text messages; however, the Court
of Criminal Appeals reversed our judgment and remanded this proceeding for us to consider Ukwuachu's
other issues. See Ukwuachu v. State, 2018 Tex. Crim. App. Unpub. LEXIS 442, 2018 WL 2711167 (Tex. Crim.
App. June 6, 2018).

Ukwuachu v. State                                                                                Page 2
Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997). If the State fails to allege

an element of an offense in an indictment or information, then this failure is a defect in

substance. Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). The accused must

object to substance defects before trial begins; otherwise the accused forfeits his right to

raise the objection on appeal or by collateral attack. TEX. CODE CRIM. PROC. ANN. art.

1.14(b) ("If the defendant does not object to a defect, error, or irregularity of form or

substance in an indictment or information before the date on which the trial on the merits

commences, he waives and forfeits the right to object to the defect, error, or irregularity

and he may not raise the objection on appeal or in any other postconviction proceeding.");

Duron, 956 S.W.2d at 550-51. Because Ukwuachu did not file a motion to quash the

indictment in this proceeding, this complaint has been waived. We overrule issue three.

FALSE TESTIMONY

       In his first and second issues, Ukwuachu complains that his due process rights

pursuant to the Fifth and Fourteenth Amendments to the United States Constitution and

Article 1, Section 19 of the Texas Constitution were violated by the State's use of false

testimony. The false testimony relates to Ukwuachu's roommate's location and whether

phone calls were made around the time of the alleged offense. The complaint is that the

false testimony was created by the way in which the State made use of his roommate's

cell phone records, which were provided to Ukwuachu on the second day of the trial, but

which were excluded from evidence.


Ukwuachu v. State                                                                     Page 3
       Regardless of whether done knowingly or unknowingly, the State's use of material

testimony that is false to obtain a conviction violates a defendant's right to due process

under the Fifth and Fourteenth Amendments. Ex parte Chavez, 371 S.W.3d 200, 207-08

(Tex. Crim. App. 2012). The due-process inquiry is twofold: (1) was the testimony, in

fact, false, and if so, (2) was the testimony material. Ex Parte Weinstein, 421 S.W.3d 656,

665 (Tex. Crim. App. 2014). As to the falseness inquiry, the false testimony or evidence

need not rise to the level of perjury to violate due process; it is sufficient if the testimony

or evidence is "false." Id., at 665-66. But whether the testimony is "false" is determined

by asking whether the testimony, taken as a whole, "gives the jury a false impression."

Chavez, 371 S.W.3d at 208. If the testimony is determined to be false, we must then

determine whether the testimony was "material." Weinstein, 421 S.W.3d at 665. False

testimony is material if there is a "reasonable likelihood" that it affected the judgment of

the jury. Id. (citing Chavez, 371 S.W.3d at 206-07).

       On the second day of trial, the State informed the trial court that it had just received

Ukwuachu's roommate's cell phone records and had shown them to Ukwuachu's

roommate and Ukwuachu's roommate's attorney. Ukwuachu objected to the records and

was given a continuance for the afternoon to review the records and to speak with

Ukwuachu's roommate regarding whether or not he would testify or whether he would

invoke his Fifth Amendment right to not testify against himself. Based on what the phone

records allegedly showed, Ukwuachu's roommate was threatened with perjury charges


Ukwuachu v. State                                                                        Page 4
by the State relating to grand jury testimony he had been forced to give shortly before

trial if he were to choose to testify at trial consistent with his grand jury testimony.2 Based

on the time and location data shown in the phone records, the State argued that

Ukwuachu's roommate was across town during the alleged assault rather than in their

apartment as the roommate had testified before the grand jury. But the times shown in

the phone records were in UTC (Coordinated Universal Time), which was five hours

different from local time. Due to this five-hour difference in time for when the calls were

made, Ukwuachu claimed that his roommate's testimony was not shown to be untrue by

the records as argued by the State. The trial court did not allow the admission of the

phone records but allowed the State to ask questions about making phone calls.

        Notwithstanding the exclusion of the phone records, during its cross-examination

of both Ukwuachu's roommate and Ukwuachu's roommate's friend, the State referred to

the phone records as though they definitively showed that Ukwuachu's roommate was

calling his friend from across town during the time when the roommate had testified he

was in the apartment he shared with Ukwuachu. In addition to using the records during

cross-examination, in its closing argument the State referenced the time and location data

of the calls as showing that Ukwuachu's roommate was not in the apartment during the


2 The State discovered Ukwuachu's roommate's cell phone number during grand jury testimony he was
subpoenaed to provide a few weeks prior to Ukwuachu's trial. The alleged violation of Ukwuachu's due
process rights relating to Ukwuachu's roommate's being forced to testify before the grand jury relating to
this offense is the basis for Ukwuachu's fifth issue. The State used the information received from the grand
jury to subpoena Ukwuachu's roommate's cell phone records and to impeach his roommate’s testimony at
trial.

Ukwuachu v. State                                                                                    Page 5
alleged assault as Ukwuachu's roommate had testified.

           At the motion for new trial hearing, Ukwuachu provided an affidavit by an expert

in computer forensics who contended that it was impossible to accurately verify location

data solely from the records without additional review by an expert, that the latitude and

longitude given on this type phone records was rarely precisely accurate, and that it

would take many hours for an expert to accurately provide the location of where an

individual was when a call was made. The State had contended that it had just received

the records from the cell phone provider during trial, although the State mentioned that

its expert designated prior to trial had reviewed them.

           We find that the State's repeated references to what the cell phone records showed,

including the location and time of calls made, without their admission into evidence

created a false impression with the jury.3 Testimony was elicited from both Ukwuachu's

roommate and Ukwuachu's roommate's friend while referencing records that were not

in evidence and in a manner that indicated that the records definitively showed

Ukwuachu's roommate's location at certain critical times when they did not.

           We must next determine whether or not the testimony was "material," that being

that there is a "reasonable likelihood" that it affected the judgment of the jury. Chavez,

371 S.W.3d at 206-07. If a due-process violation stemming from a use of material false

testimony is found, harm is necessarily proven. Weinstein, 421 S.W.3d at 665.


3   We do not disagree with the trial court's exclusion of the records.

Ukwuachu v. State                                                                       Page 6
       It was extremely important to the State’s case to put the roommate outside the

apartment at the time of the alleged assault. Ukwuachu's roommate testified that he was

in the apartment prior to Ukwuachu returning home the night of the alleged assault,

heard Ukwuachu and a female come into the apartment, and did not hear any sounds or

signs of a struggle as the victim described in her testimony. The State went to great

lengths to discredit Ukwuachu's roommate's testimony by showing his location at the

time the phone calls were made using records the State could not get admitted into

evidence.

       This was a case where the central issue was consent. There was no dispute that

sexual intercourse occurred. The credibility of Ukwuachu, the victim, and his roommate,

who were the only persons potentially in the apartment, was the most significant aspect

of the trial. The State's case was strengthened significantly by showing that Ukwuachu's

roommate was not in the apartment or that he was making calls at times he had

contended he was asleep based on records that the State knew it could not admit into

evidence and that created a false impression.       We find that there is a "reasonable

likelihood" that the false impression affected the judgment of the jury. Chavez, 371 S.W.3d

at 206-07. Because of this, we sustain issues one and two and reverse the judgment of the

trial court and remand for a new trial. Because we are reversing the judgment and

remanding for a new trial, it is not necessary for us to address Ukwuachu's other

remaining issues. TEX. R. APP. P. 47.1.


Ukwuachu v. State                                                                    Page 7
CONCLUSION

         Having found that the use of the cell phone records constituted a due process

violation, we reverse the judgment of conviction and remand this proceeding for a new

trial.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Reversed and remanded
Opinion delivered and filed July 10, 2019
Do not publish
[CR25]




Ukwuachu v. State                                                               Page 8
