Opinion filed September 13, 2018




                                      In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-16-00274-CR
                                    __________

                    TRAY DON GOSWICK, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 132nd District Court
                            Scurry County, Texas
                         Trial Court Cause No. 10396


                                   OPINION
      This appeal involves an interpretation of the evidentiary requirements set out
in Article 38.18 of the Texas Code of Criminal Procedure for a conviction for perjury
or aggravated perjury. See TEX. CODE CRIM. PROC. ANN. art. 38.18 (West 2005).
The jury convicted Tray Don Goswick of aggravated perjury and assessed his
punishment at confinement for ten years in the Institutional Division of the Texas
Department of Criminal Justice. The trial court ordered that this sentence run
consecutively with Appellant’s previously imposed sentence in trial court cause
number 10366 for possession of a controlled substance. The trial court further
ordered Appellant to pay attorney’s fees in the amount of $2,500. In two issues on
appeal, Appellant contends that (1) there is insufficient evidence under Article 38.18
to support his conviction and (2) the trial court erred in assessing attorney’s fees.
We reverse and render.
                                 Background Facts
      On October 21, 2015, law enforcement arrested Appellant and discovered that
he was carrying methamphetamine in his pocket. The trial for the possession offense
occurred on May 17, 2016. Appellant testified during the guilt/innocence phase that,
on the date of his arrest, he believed that he was carrying bath salts rather than
methamphetamine. The jury subsequently found Appellant guilty of possession of
a controlled substance.
      Following the conviction for possession of a controlled substance, Appellant
was indicted for aggravated perjury. The indictment alleged:
      [O]n or about the 17th day of May, 2016, . . . [Appellant] did then and
      there, with intent to deceive and with knowledge of the statement’s
      meaning, make a false statement under oath, namely, that at the time of
      his arrest on October 21, 2015, he believed the substance he possessed
      was bath salts and not methamphetamine, . . . such statement being false
      in that at the time of his arrest on October 21, 2015, [Appellant] had
      knowledge that the substance he possessed was methamphetamine . . . .
      At the trial on the aggravated perjury charge, the State called two witnesses:
Investigator John McDaniel and Deputy Maggie Souder. Investigator McDaniel
testified that he was present during Appellant’s trial for possession of a controlled
substance. He read for the jury Appellant’s testimony from that trial. He further
testified that Appellant’s testimony was contradicted by the testimony of
Deputy Souder.


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      Deputy Souder testified that on April 26, 2016, she arrested Appellant on
several outstanding warrants. At that time, Appellant told Deputy Souder that he
had a pending case for possession of methamphetamine.                  According to
Deputy Souder, Appellant complained that “[he] had ‘X’ amount of meth . . . [but]
only got charged with this.” She testified that Appellant “want[ed] to know where
the rest of [his] dope [was].” Deputy Souder also testified that Appellant never
mentioned at the time of his April 2016 arrest that he believed he was in possession
of bath salts when he was arrested in October 2015.
                                       Analysis
      In his first issue, Appellant contends that the evidence was insufficient to
support his conviction. Specifically, Appellant contends that the State failed to
present evidence of the falsity of his statement by more than one witness, as required
by Article 38.18(a). In response, the State contends that it was not required to
present more than one witness pursuant to Article 38.18(b) to testify about the falsity
of Appellant’s statement because it presented evidence that Appellant gave
inconsistent statements.
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
      Article 38.18(a) provides that “[n]o person may be convicted of perjury or
aggravated perjury if proof that his statement is false rests solely upon the testimony
of one witness other than the defendant.” CRIM. PROC. art. 38.18(a). However,
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Article 38.18(b) provides that “[p]aragraph (a) of this article does not apply to
prosecutions for perjury or aggravated perjury involving inconsistent statements.”
Id. art. 38.18(b). We have found no case law directly interpreting Article 38.18(b).
Nevertheless, the State contends that the plain language of Article 38.18(b) indicates
that, since Appellant gave inconsistent statements, one on April 26 to Deputy Souder
and one on May 17 at his trial, the State was not required to present two witnesses
of his statement’s falsity.    As set forth below, we disagree with the State’s
interpretation of Article 38.18 in light of the provisions of the Texas Penal Code
pertaining to the offenses of perjury and aggravated perjury.
      A person commits perjury if, with the intent to deceive and with knowledge
of the statement’s meaning, he makes a false statement under oath. TEX. PENAL
CODE ANN. § 37.02 (West 2016). A person commits aggravated perjury if the false
statement is made in connection with an official proceeding and is material. Id.
§ 37.03.   Section 37.06 of the Texas Penal Code is entitled “Inconsistent
Statements.” Id. § 37.06. It provides that “[a]n information or indictment for perjury
under Section 37.02 or aggravated perjury under Section 37.03 that alleges that the
declarant has made statements under oath, both of which cannot be true, need not
allege which statement is false. At trial, the prosecution need not prove which
statement is false.” Id. Thus, if the indictment alleges that the defendant made
inconsistent statements under oath, then the State is relieved of its burden of proving
that the statement was false. See Deckard v. State, 953 S.W.2d 541, 544 (Tex.
App.—Waco 1997, pet. ref’d); see also 6 Michael B. Charlton, Texas Practice
Series: Texas Criminal Law § 21.4 (2017) (“[U]nder Section 37.06, perjury can be
proven by the mere existence of conflicting statements.”).
      In Deckard, the defendant testified under oath that his cellmate had made
plans to escape from jail. 953 S.W.2d at 542. After the statute of limitations for
aggravated perjury had expired, the defendant recanted this testimony. Id. at 542–
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43. At a hearing on his cellmate’s petition for writ of habeas corpus, the defendant
testified that he had lied when he gave his previous testimony and that his cellmate
never told him of any plans to escape from jail. Id. The defendant was subsequently
charged with aggravated perjury based on his testimony at the habeas hearing. Id.
at 543. Before analyzing the sufficiency of the evidence under Article 38.18(a), the
Deckard court made the following comment:
      Deckard argues that, although the record reflects he made two
      contradictory statements under oath, this alone is insufficient to support
      his conviction for perjury. We agree with Deckard on this point. In
      this case Deckard was not charged using § 37.06 of the Penal Code
      which allows the State to merely allege the defendant made
      contradictory statements under oath and eliminates the need for the
      State to prove at trial which statement was false. . . . Instead the
      indictment affirmatively alleges that Deckard’s testimony at [the]
      habeas corpus hearing was false, and the State had the burden to prove
      this falsity beyond a reasonable doubt at trial.
Id. at 544 (emphasis added) (citations omitted). Reading Article 38.18 of the Code
of Criminal Procedure; Sections 37.02, 37.03, and 37.06 of the Penal Code; and
Deckard together, we conclude that, in order for the State to rely on Article 38.18(b),
the charging instrument must allege that the declarant made inconsistent statements
under oath, both of which cannot be true. See PENAL § 37.06.
      Sections 37.02 and 37.03 of the Penal Code set out the elements of perjury
and aggravated perjury. See id. §§ 37.02, .03. One of these elements is that the
declarant made a false statement. See id. § 37.02(a)(1). Article 38.18(a) sets out the
evidence required to prove this falsity. See CRIM. PROC. art. 38.18(a); Deckard, 953
S.W.2d at 544. Alternatively, the State may allege in the information or indictment
that the declarant “made statements under oath, both of which cannot be true.”
PENAL § 37.06. In this situation, “the prosecution need not prove which statement
is false.” Id. Thus, an indictment under Section 37.06 removes an element of perjury
or aggravated perjury (the statement’s falsity) that the State must otherwise prove.

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See Deckard, 953 S.W.2d at 544. Relieved of its burden to prove the statement’s
falsity, the State is no longer bound by the requirement that it produce more than one
witness other than the defendant. See CRIM. PROC. art 38.18(b).
      Here, the State contends that “Appellant was convicted under 38.18(b)
(inconsistent statements).” The indictment, however, alleged that Appellant “[made]
a false statement under oath” and that “such statement [was] false.” The indictment
did not allege that Appellant made inconsistent statements under oath. In fact,
Appellant’s statements to Deputy Souder were not made under oath. Therefore, the
State was not relieved of its burden under Article 38.18(a) to prove the element of
falsity by producing more than one witness. See Deckard, 953 S.W.2d at 544.
      Although the State produced two witnesses at trial, only one of those
witnesses, Deputy Souder, provided testimony that Appellant’s testimony on
May 17 was false. Therefore, the evidence is insufficient to support Appellant’s
conviction for aggravated perjury. See CRIM. PROC. art. 38.17 (“In all cases where,
by law, two witnesses, or one with corroborating circumstances, are required to
authorize a conviction, if the requirement be not fulfilled, the court shall instruct the
jury to render a verdict of acquittal, and they are bound by the instruction.”); see also
Dodson v. State, 268 S.W.3d 674, 677 (Tex. App.—Fort Worth 2008, pet. ref’d).
We sustain Appellant’s first issue.
      In light of our disposition of Appellant’s first issue, we do not reach
Appellant’s second issue challenging the assessment of attorney’s fees.




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                                         This Court’s Ruling
        We reverse the judgment of the trial court and render a judgment of acquittal.




                                                                   JOHN M. BAILEY
                                                                   JUSTICE


September 13, 2018
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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