Chapter 37
Perjury and Other Falsification
37.5 Instruction—Aggravated Perjury by Inconsistent Statements
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of aggravated perjury.
Relevant Statutes
A person commits the offense of aggravated perjury if the person commits perjury and the false statement is made during or in connection with an official proceeding and is material.
A person commits perjury if the person, with intent to deceive and with knowledge of the statements’ meaning, makes two inconsistent statements under oath, one of which is necessarily false, and the statements were required or authorized by law to be made under oath.
The state is not required to prove which of the two statements is false.
[Include the following if raised by the evidence.]
It is not a defense to prosecution that the defendant mistakenly believed the statement to be immaterial.
[Include the following if raised by the evidence.]
It is not a defense that the oath was administered or taken in an irregular manner.
[Include the following if raised by the evidence.]
It is not a defense that there was some irregularity in the appointment or qualification of the person who administered the oath.
[Include the following if raised by the evidence.]
It is not a defense that a document was not sworn to if the document contains a recital that it was made under oath, the declarant was aware of the recital when he signed the document, and the document contains the signed jurat of a public servant authorized to administer oaths.
Definitions
Statement
“Statement” means any representation of fact.
Intent to Deceive
“Intent to deceive” means the conscious objective or desire to deceive.
Knowledge of a Statement’s Meaning
“Knowledge of a statement’s meaning” means awareness of the meaning of the statement.
Material
A statement is “material” if it could have affected the course or outcome of the official proceeding.
Official Proceeding
“Official proceeding” means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant.
Public Servant
“Public servant” means a person elected, selected, appointed, employed, or otherwise designated, even if he has not yet qualified for office or assumed his duties, as—
- an officer, employee, or agent of government;
- a juror or grand juror;
- an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy;
- an attorney at law or notary public when participating in the performance of a governmental function;
- a candidate for nomination or election to public office; or
- a person who is performing a governmental function under a claim of right although he is not legally qualified to do so.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, eight elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date] made the statement [insert substance of the first statement], and on or about [date] made the statement [insert substance of the second statement];
- the two statements could not both be true;
- both statements were made under oath;
- both statements were required or authorized by law to be made under oath;
- the defendant made the statements with knowledge of their meaning;
- the defendant had the intent to deceive;
- each statement was made during or in connection with an official proceeding [if alleged, insert details of official proceeding]; and
- the statements were material [insert any allegation of how the statement was material].
You must all agree on elements 1 through 8 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1 through 8 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the eight elements listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Comment
The offense of aggravated perjury is provided for in Tex. Penal Code § 37.03. The definition of “statement” is based on Tex. Penal Code § 37.01(3). The definitions of culpable mental states are derived from Tex. Penal Code § 6.03. The definition of “material” is based on Tex. Penal Code § 37.04(a). The definition of “official proceeding” is based on Tex. Penal Code § 1.07(a)(33). The definition of “public servant” is based on Tex. Penal Code § 1.07(a)(41).
Whether Both Statements Must Be Material. Tex. Penal Code § 37.06 allows the state to prove falsity by two inconsistent statements and provides that the jury does not have to decide which of the two inconsistent statements is the false one. If the jury does not decide which statement is false, the state has to prove both statements meet all of the other elements of perjury or aggravated perjury. For aggravated perjury, this includes the element of materiality.
Sometimes, however, the evidence will be clear enough that the jury could decide, beyond a reasonable doubt, that one of the statements is the false one. When this occurs in an aggravated perjury case, the jury does not have to find that both statements are material, only that the false statement is. The Committee believed that this occurrence would be fairly rare and that it would complicate the aggravated perjury instruction to provide for this possibility in every case. That said, when the jury is likely to find one statement is clearly the false one and also that the other statement was not material, the state may be entitled to an additional instruction that allows the jury to convict the defendant for the single false, material statement.
Defense of Retraction. The defense of retraction included in the instruction at CPJC 37.4 could be modified and incorporated into this instruction, as well.