Comment

Perjury can be committed in three alternative ways: (1) by making a false statement under oath, (2) by swearing to the truth of a false statement previously made, and (3) by making a false unsworn declaration. The instructions for perjury and aggravated perjury that follow set out what appears to be the most commonly prosecuted of these alternatives: making a false statement under oath.

To prove perjury by making a false statement under oath, the state has two options: (1) it can prove the falsity of the defendant’s sworn statement, or (2) under Tex. Penal Code § 37.06, the state can prove that the defendant made two inconsistent statements under oath, one of which must necessarily be false. Under this second option of establishing perjury by inconsistent statements, the state never has to prove—and the jury never has to decide—which of the two statements is false. By proving all the other elements of perjury for both statements and showing the two statements are inconsistent, the state circumstantially proves that one of the statements must be false. Because of this difference between perjury by inconsistent statements and perjury by proof of a single false statement, the Committee decided that separate instructions were warranted.

The Two-Witness Rule.  The most difficult challenge the Committee encountered in crafting a perjury instruction was how to instruct the jury on the two-witness rule from article 38.18(a) of the Texas Code of Criminal Procedure. This statute does not apply to perjury by inconsistent statements. But for all other forms of perjury and aggravated perjury, article 38.18(a) provides: “No person may be convicted . . . if proof that his statement is false rests solely upon the testimony of one witness other than the defendant.” Tex. Code Crim. Proc. art. 38.18(a).

One interpretation of the statute is that two witnesses are required for conviction. It is also possible that one witness plus corroborative evidence would be sufficient, because this, too, would be something more than “solely . . . the testimony of one witness.”

The history of the two-witness rule lends support to this second interpretation. The statute as it was written in 1865 provided that a conviction for perjury could rest on the testimony of two credible witnesses or one credible witness with “strong” corroborating circumstances. The rule ensured that a defendant would not be convicted for his sworn testimony when the proof of his guilt was of no better caliber (i.e., the sworn testimony of someone else). A trial that merely pitted an “oath against oath,” was insufficient to sustain a conviction. Maines v. State, 9 S.W. 51, 52 (Tex. App. 1888). For nearly a century, the statute remained largely the same (requiring two witnesses or one with strong corroboration) until its amendment to its present form in 1973. Given this history, it would have been a significant change for the legislature to eliminate one witness plus corroborative evidence as a way of proving perjury. Yet instead of showing signs that the legislature was departing from the prior rule, the legislative history indicates the revisions to article 38.18(a) were intended as a “language change” and not a change in the law. See Subcommittee on Criminal Matters, Jurisprudence Committee, 63d R.S., March 13, 1973, Texas Senate Recording 630526(a) at 20:18, available online at https://tsl.access.preservica.com/tda/reference-tools/senate-recordings/63rd/.

Article 38.17 and When to Instruct the Jury under Article 38.18(a). Under Tex. Code Crim. Proc. art. 38.17, the trial court may direct a verdict of acquittal if the state fails to satisfy the two-witness rule as a matter of law. If the judge does not resolve the issue as a matter of law, Texas courts have long held that the jury must be instructed on the two-witness rule. E.g., Knight v. State, 158 S.W. 543, 544 (Tex. Crim. App. 1913); Brown v. State, 276 S.W. 929, 931 (Tex. Crim. App. 1925). More recent case law suggests a trial court does not err—at least reversibly—in failing to instruct on the two-witness rule if the record shows the requirements of the rule were clearly met. McGuire v. State, 707 S.W.2d 223, 228 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d, untimely filed) (“Since we have found more than one witness testified as to the falsity of appellant’s statement there was no error in the failure to . . . instruct the jury [that no person may be convicted of perjury on the testimony of one witness].”). In those instances, however, where the evidence raises a possibility that the jury might convict solely on the testimony of a single witness (such as where the state offers the testimony of only two witnesses, one of whom has been impeached), the better practice is to instruct the jury on article 38.18. Otherwise, the jury could end up convicting a defendant solely on the testimony of a single witness.

How to Instruct the Jury under Article 38.18(a). Given the revision to article 38.18(a), the Committee could not agree on precisely what juries could be told. Some members of the Committee believed that the language of the statute (that the jury cannot convict solely on the testimony of one witness other than the defendant) would, in the mind of a nonlawyer, convey that two or more witnesses were required and that more guidance from the judge was necessary to explain that one witness with corroborating evidence would also be sufficient to convict. Other members were concerned that spelling out two or more witnesses or one witness with corroborating evidence, while possibly an accurate statement of the law, went beyond the language of the current statute. Still others believed one witness with corroboration has been written out of the statute and thus should not be presented to jurors as the law. In the face of this uncertainty, the Committee offers an instruction that tracks article 38.18(a) with additional language in brackets that might also be used. When the state’s evidence of falsity rests on the testimony of multiple witnesses whose credibility has not been attacked, the bracketed instruction will likely be unnecessary. But when the state’s evidence of falsity comes from only one witness with corroborative evidence, the state may be entitled to the additional bracketed instruction.

The Element of Materiality in Aggravated Perjury. Tex. Penal Code § 37.04(c) declares the issue of materiality to be a question of law. Because materiality is an element of aggravated perjury, however, refusing to submit the question of materiality to the jury infringes on a defendant’s right to have a jury determine his guilt of every element of the crime. United States v. Gaudin, 515 U.S. 506, 522 (U.S. 1995); Dodson v. State, 268 S.W.3d 674, 679 (Tex. App.—Fort Worth 2008, pet. ref’d). Consequently, the question of materiality must be submitted to the jury.

The Defense of Retraction. The defense of retraction applies only to aggravated perjury, not perjury. Tex. Penal Code § 37.05.

Perjury by Unsworn Declaration. Since 1993, the offense of perjury has applied to both false statements under oath and false unsworn declarations. Acts 1993, 73d Leg., R.S., ch. 900, § 1.01, sec. 37.02 (S.B. 1067), eff. Sept. 1, 1994. Unsworn declarations are governed by the Texas Civil Practice and Remedies Code, which provides a legally effective alternative to a sworn statement but, until recently, was only available to prison or jail inmates. See Tex. Civ. Prac. & Rem. Code § 132.001; Dominguez v. State, 441 S.W.3d 652, 657 (Tex. App.—Houston [1st Dist.] 2014, no pet.). In 2011, however, Tex. Civ. Prac. & Rem. Code § 132.001 was expanded to allow any person to use an unsworn declaration in lieu of a legally required affidavit or other sworn statement. Acts 2011, 82d Leg., R.S., ch. 847, § 1 (H.B. 3674), eff. Sept. 1, 2011, amended by Acts 2013, 83d Leg., R.S., ch. 946, § 1 (H.B. 1728), eff. June 14, 2013. The jury instruction for perjury by false statement under oath can be modified to suit this form of perjury by substituting references to a false unsworn declaration in place of a false statement under oath.