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My AccountChapter 37
- 37.1 Perjury and Aggravated Perjury Generally
- 37.2 Instruction—Perjury by Making a False Statement under Oath
- 37.3 Instruction—Perjury by Inconsistent Statements
- 37.4 Instruction—Aggravated Perjury by Making a False Statement under Oath
- 37.5 Instruction—Aggravated Perjury by Inconsistent Statements
- 37.6 General Comments on False Report
- 37.7 Instruction—False Report to Peace Officer
- 37.8 General Comments on Tampering with or Fabricating Physical Evidence
- 37.9 Instruction—Tampering with Physical Evidence Knowing of Pending or Ongoing Investigation or Official Proceeding
- 37.10 Instruction—Tampering with Physical Evidence with Intent to Affect Pending or Ongoing Investigation or Official Proceeding
- 37.11 Instruction—Knowingly Tampering with Physical Evidence with Intent to Affect Any Subsequent Investigation or Official Proceeding
- 37.12 Instruction—Tampering with Physical Evidence by Failing to Report a Corpse
- 37.13 General Comments on Tampering with a Governmental Record
- 37.14 Making a False Entry or False Alteration
- 37.15 Instruction—Tampering with a Governmental Record—Making a False Entry or Alteration
- 37.16 Making or Using a False Thing with the Intent It Be Taken as Genuine
- 37.17 Instruction—Tampering with a Governmental Record—Making, Presenting, or Using a False Thing with the Intent It Be Taken as Genuine
- 37.18 Making, Presenting, or Using a False Governmental Record
- 37.19 Instruction—Tampering with a Governmental Record—Making, Presenting, or Using a False Governmental Record
- 37.20 Instruction—Tampering with a Governmental Record—Presumption of Intent to Harm or Defraud Another
- 37.21 Instruction—Tampering with a Governmental Record—Defense of No Effect on Government Purpose
Comment
Culpable Mental State. Texas Penal Code section 37.08 requires proof that the accused acted “knowingly” in giving a false report to a peace officer, federal special investigator, or law enforcement employee. Case law and the language of the statute indicate that this culpable mental state applies to both making the statement and the statement’s falsity. Wood v. State, 577 S.W.2d 477, 480 (Tex. Crim. App. 1978) (conviction for making false statement that officer was intoxicated reversed and defendant acquitted; evidence insufficient to show defendant knew officer in fact was not intoxicated). The Committee drafted its instruction on the assumption that this is the case.
No Definition of “Material.” The false statement must be proved to be “material to a criminal investigation.” Texas Penal Code section 37.04(a) contains a definition of when a statement is material. Because it appears within the same Penal Code chapter as both perjury and false report to a peace officer, some have argued that the section 37.04(a) definition might apply to false report. The Fort Worth court of appeals expressly rejected that argument in a sufficiency of the evidence case. McCreary v. State, 649 S.W.3d 902 (Tex. App.—Fort Worth 2022, pet. ref’d). The statute is drafted in terms suggesting it applies only to aggravated perjury under Tex. Penal Code § 37.03(a). For instance, section 37.07(a) defines the word in terms of its effect on the “official proceeding” rather than the criminal investigation, which is the focus of false report to a peace officer, Tex. Penal Code § 37.08. McCreary held that jurors were entitled to rely on the common, everyday meaning of the word “material.” The Committee agrees that no definition of “material” should be provided in a jury charge for false report.
Effort to Obtain Redress for Wrongful Official Behavior. If a prosecution for false report is based on a statement possibly made as part of an effort to obtain redress for wrongful official conduct, special care is necessary to avoid basing criminal liability on activity protected by the right to seek redress for grievances protected by article I, section 27, of the Texas Constitution. Wood, 577 S.W.2d 477, and McGee v. State, 671 S.W.2d 892 (Tex. Crim. App. 1984), can be read as holding that in such cases, the jury must be told that the state must prove, in addition to the statutory elements of the crime, that (1) the false statement was made in “bad faith,” and (2) the false statement was made for reasons other than to obtain action on a valid grievance. See Zahorik v. State, No. 14-13-00763-CR, 2015 WL 5042105 (Tex. App.—Houston [14th Dist.] Aug. 25, 2015, no pet.) (hypothetical jury instruction used to determine sufficiency of evidence on appeal should contain requirements suggested by Wood and McGee).
On the other hand, Wood and McGee can be read as requiring only that special care must be taken to assure that sufficient evidence supports a jury finding that the defendant actually knew that the statement constituting the offense was false. Further, this requirement may be one applied only on appellate review for evidence sufficiency and thus not one that should be included in the jury instructions.
The Committee was unable to determine with reasonable confidence that Wood and McGee, when they applied, required any particular jury instruction. Thus, the Committee chose not to attempt to address how, under one of several possible readings of these decisions, they might increase the state’s burden of proof under this offense in a manner that might have to be reflected in the jury instructions.