Johnson v. State

Full title: JARRETT W. JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 22, 2008

No. 05-06-01310-CR (Tex. App. Apr. 22, 2008)

Opinion

No. 05-06-01310-CR

Opinion Filed April 22, 2008. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-80728-01.

Before Justices WHITTINGTON, WRIGHT, and FITZGERALD.

OPINION

Opinion By Justice WRIGHT.

Jarrett W. Johnson appeals his conviction for aggravated robbery. After the jury found appellant guilty, the trial court assessed punishment at six years' confinement. In two issues, appellant contends (1) his due process rights were violated by the State's use of perjured testimony before the grand jury and at trial, and (2) the trial court erred by refusing his request for certain lesser-included offense instructions in the jury charge. Although we do not condone the State's failure to correct certain false testimony used during the trial, we nevertheless overrule appellant's issues and affirm the trial court's judgment.

Background

Appellant, Douglas Havard, and Jeremiah Simmons broke into Willie James Carroll, II's apartment. The three men had guns and were wearing gloves and body armor. According to appellant, they were attempting to recover money after a bad drug deal. Carroll's brother, Christopher J. Moore, heard the disturbance and called 911. Carroll testified he was sleeping and was awakened by his dog barking. He saw three men pointing guns at him. The men demanded money, and after searching his room, took $1200 he had saved for college tuition. According to Carroll, Simmons then went through the house "grabbing-unhooking my Playstation, grabbing guns, going to my parents' room, getting-getting my Dad's guns" and taking them to the car. Carroll denied knowing the three men and denied being a drug dealer. Officer Jim Foster was one of the officers who responded to the 911 call. Foster testified that when he arrived at the apartment, he heard "loud voices coming from the open upstairs bedroom window; and, leaving out the rough language, it was something to the effect of, do you know that we could kill you right now." As Foster approached the front door, he saw that the window next to the door was broken, and that someone could reach through the window and unlock the door. Foster and Officer Clint Little entered the apartment and went upstairs to Carroll's bedroom. As Foster and Little approached the bedroom, Foster saw appellant, Havard, and Carroll in the bedroom. Carroll was lying on the bed, with appellant and Havard nearby. Foster and Little identified themselves as police officers and told the men in the bedroom to freeze. As they did so, Foster saw appellant "toss a chrome or silver-colored handgun onto the bed." Foster later found another handgun between Havard's feet where he had apparently dropped it. After the police secured the room, they called an ambulance for Carroll because he had "numerous cuts and bruises on [his] head. Blood was running from the top of his head down [onto] his face." Little testified to a substantially similar version of the incident. Additionally, Little testified that as he and Foster arrived at the location, Little saw a man closing the trunk of a car. The man then got into the car and drove away. Later, the police realized the man was Simmons. Moore testified he was sleeping and was awakened by the sound of glass breaking. A short time later, he heard what he thought was "roughhousing" in his brother's room. However, after hearing several threats, Moore realized the men were serious and called 911. Moore suspected his brother was involved with drugs and this incident was a "drug deal gone bad." After hearing this and other evidence, the jury found appellant guilty of aggravated robbery. This appeal followed.

Discussion

In his first issue, appellant contends, in part, that his due process rights were violated by the State's use of perjured testimony at trial.¹ Specifically, appellant complains that Carroll's testimony that he did not know appellant, Havard, and Simmons was false, and the State's failure to correct the false testimony led to an unfair trial. A prosecutor's knowing use of perjured testimony violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Mooney v. Holohan, 294 U.S. 103, 112 (1935). Likewise, a prosecutor's knowing failure to correct such testimony denies a defendant due process. Napue v. Illinois, 360 U.S. 264, 269 (1959). It does not matter whether the prosecutor actually knows that the evidence is false; it is enough if the prosecutor should have recognized the misleading nature of the evidence. Duggan v. State, 778 S.W.2d 465, 468-69 (Tex.Crim.App. 1989) (citing United States v. Agurs, 427 U.S. 97, 103 (1976)); Ramirez v. State, 96 S.W.3d 386, 395-96 (Tex.App.-Austin 2002, pet. ref'd). Nor does it matter that the falsehood goes merely to an issue of credibility. Napue, 360 U.S. at 269. The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the credibility of a witness that a defendant's life or liberty may depend. Id. With these standards in mind, we will review the record in this case to determine: (1) if the State "used" the testimony; (2) whether the testimony was "false"; (3) whether the testimony was "knowingly used"; and (4) if these questions are affirmatively answered, whether there is a reasonable likelihood that the false testimony could have affected the judgment of the jury. Ramirez, 96 S.W.3d at 394-95. With respect to the first question, the State contends it did not "use" the complained-of testimony because it was only developed during cross-examination. However, contrary to the State's assertion, testimony regarding credibility developed during cross-examination may constitute "use" of evidence. See Duggan, 778 S.W.2d at 467 (uncorrected false testimony on cross-examination that no leniency agreement existed between accomplices and State violated due process rights of defendant). Moreover, the record shows Carroll repeatedly testified he did not know the men who robbed him. Most of the instances were during cross-examination, but the first time Carroll testified he did not know the robbers was in response to the State's question about whether Carroll was in fear of imminent bodily injury or death. In response to that question, Carroll replied, "Oh, of course. I mean, three guys you don't know pointing guns at you, I mean, I believe anybody would be scared for their life." The State did not attempt to correct Carroll's testimony. Because the State permitted Carroll to testify on direct examination and several times on cross-examination, without correction, that he did not know the robbers, we conclude the State "used" the complained-of testimony. See Ramirez, 96 S.W.3d at 395. Turning to the question of whether the complained-of testimony was false, there is no need for the defendant to show the witness knew the testimony was false or otherwise harbored a sufficient culpable mental state to render the witness subject to prosecution for perjury. See Napue, 360 U.S. at 269; Ramirez, 96 S.W.3d at 395. Additionally, the court of criminal appeals has made clear that whether the rule is violated or not does not depend upon the defendant's ability to demonstrate the witness's specific factual assertions were technically incorrect or "false." Ramirez, 96 S.W.3d at 395. It is sufficient if the witness's testimony gives the trier of fact a false impression. Id. Here, Carroll repeatedly testified that he did not know any of the men. However, when appellant gave his statement, appellant identified Carroll by his nickname "Pee Wee," and Havard's telephone records show numerous calls from Havard's cellular telephone to Carroll's residence. Brandylinn Cook approached the police as they were investigating the incident and told them Carroll was a drug dealer who owed her $850 for drugs Carroll never delivered. The police found drug paraphernalia, including three bongs and a scale, in Carroll's bedroom. And, appellant's brother testified he suspected his brother was a drug dealer and the incident was a "drug deal gone bad." After reviewing the record, we conclude Carroll's testimony that he did not know the three men was false and misleading. With respect to whether the prosecutor knowingly used the false testimony, the record contains a letter the prosecutor sent defense counsel prior to trial. In the letter, the prosecutor stated as follows:

Enclosed is a copy of James Carroll's statement to the police in [this] case. I am supplying it to you because I believe there is Brady material involved. It is my understanding that you already know that Mr. Carroll, was on some level, selling drugs and your client and/or defendant Havard were his suppliers. Despite the fact that Mr. Carroll put in his statement and told the police that he didn't know his attackers. It is also my understanding that you are familiar with several contradictory, false, or misleading statements that Mr. Carroll has made concerning weapons taken, value, etc. It should be an interesting cross examination for you.

After reviewing the letter, we conclude there is no question the State knowingly used the testimony at trial. After considering the first three questions, we conclude the record shows the State knowingly failed to correct testimony that it should have recognized as false and misleading. Having done so, we now turn to the question of whether Carroll's testimony that he did not know the men was material. See Ex parte Castellano, 863 S.W.2d 476, 485 (Tex.Crim.App. 1993) (A finding of false testimony alone does not establish a due process violation. To violate due process, the false testimony must be material.). We presume false testimony is material unless we are convinced beyond a reasonable doubt that the complained-of testimony did not contribute to appellant's conviction or punishment. See id. at 485. In conducting this review, we calculate the probable impact of the error on the jury, in light of all other evidence available. See Rubio v. State, 241 S.W.3d 1, 3 (Tex.Crim.App. 2007) (discussing harm analysis in context of Confrontation Clause violation). We consider evidence of the defendant's guilt, but only as one factor in the analysis. Id. After considering the probable impact of Carroll's testimony that he did not know the men in light of the entire record, we are convinced beyond a reasonable doubt the false testimony did not contribute to appellant's conviction or punishment. Thus, we conclude his due process rights were not violated. With respect to the false testimony's direct impact on the jury's determination that appellant committed aggravated robbery, the record shows police officers arrived at the scene to find appellant and Havard holding Carroll at gunpoint in a ransacked room and making death threats. When appellant was later interviewed by the police, he admitted that he, together with Havard and Simmons, committed aggravated robbery. Carroll's characterization of the aggravated robbery as a "stranger-on-stranger home invasion" rather than an attempt to recover money following a bad drug deal is immaterial because, in either case, the facts show appellant committed aggravated robbery. See Tex. Pen. Code Ann. §§ 29.02, 29.03, 31.03 (Vernon 2003 Supp. 2007). As to whether the State's failure to correct the false testimony deprived the jury of an opportunity to determine Carroll's credibility, the record shows there was a concerted effort by the defense to show that Carroll did, in fact, know his assailants. In particular, the defense extensively cross-examined Carroll and brought out proof to support a prior relationship between Carroll and the men. For example, the defense admitted into evidence telephone records showing Havard's calls to Carroll's house, which Carroll could not explain; and appellant's brother testified he suspected the incident was the result of a bad drug deal. Moreover, the State placed limited reliance on Carroll's testimony. The State's direct examination of Carroll constituted of only seven pages in an almost 900-page record and, in its closing argument, the State reminded the jury the case was about appellant's actions, "not about Willie Carroll" and Carroll's testimony was not necessary for the jury to convict appellant. Finally, with respect to the false testimony's impact on appellant's punishment, the trial court assessed appellant's punishment at six years' confinement, a minimum punishment for aggravated robbery given the punishment range of five to ninety-nine years or life imprisonment. See Tex. Pen. Code Ann. § 12.32 (Vernon 2003). We note that, in making this determination, the trial judge was well aware of appellant's "pretty extensive criminal history" but believed appellant may have been manipulated by Havard, and that the trial judge had already considered appellant's due process complaint regarding the false testimony. Under these circumstances, we are convinced beyond a reasonable doubt Carroll's testimony that he did not know the men who robbed him did not contribute to appellant's conviction or punishment. Although we expressly disapprove of the State's failure to correct the complained-of testimony, under the record presented in this case, we conclude the false testimony was not material. Thus, we conclude appellant's argument that his due process rights were violated by the State's use of false testimony at trial lacks merit. Due to our disposition of this portion of appellant's first issue, we need not address appellant's contention that his due process rights were violated by the State's use of the same testimony before the grand jury. We overrule appellant's first issue. In his second issue, appellant claims the trial court erred by failing to instruct the jury on the lesser-included offenses of aggravated assault, assault, theft, and making a terroristic threat. According to appellant, the jury should have been instructed on the lesser-included offenses because the jury could have disbelieved certain evidence, and concluded (1) appellant, Havard, and Simmons "brandished" guns in self-defense, and (2) the men did not steal money and guns from Carroll. To determine if a defendant is entitled to a lesser-included offense instruction, a two-prong test applies: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. See Hampton v. State, 109 S.W.3d 437, 440 (Tex.Crim.App. 2003); Lofton v. State, 45 S.W.3d 649, 651 (Tex.Crim.App. 2001); Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994). Both prongs of the test must be met. Hampton, 109 S.W.3d at 440. When considering the second prong, some evidence directly germane to a lesser-included offense must exist for the jury to consider before an instruction on a lesser-included offense is warranted. Bignall, 887 S.W.2d at 24. It is not sufficient that the jury may disbelieve crucial evidence pertaining to the greater offense. Hampton, 109 S.W.3d at 441; Bignall, 887 S.W.2d at 24. The State's evidence showed appellant, Havard, and Simmons entered Carroll's house, with guns and Kevlar vests, with the intent to recover money from a bad drug deal. The men held Carroll at gunpoint and took Carroll's gun or guns, and money. The police arrived to find appellant in Carroll's bedroom holding him at gunpoint with the room "ransacked." The police and Carroll's brother overheard death threats. Carroll testified he was "scared for his life." Although the defense questioned whether the money found in Havard's pocket belonged to Carroll and whether Carroll lied about the number of guns taken from the house, the defense did not dispute that Simmons took at least one gun from Carroll or that appellant, Havard, and Simmons went to Carroll's apartment with the intent to get money from Carroll. This evidence is sufficient to show appellant committed aggravated robbery. In arguing he was entitled to the lesser-included offense instructions, appellant does not point to any independent evidence regarding the offenses. Rather, appellant argues the jury could have disbelieved or disregarded certain evidence. Because no affirmative evidence exists in the record showing appellant committed only aggravated assault, assault, theft, or making a terroristic threat, we conclude the evidence failed to raise the possibility that appellant, if guilty at all, was guilty only of the lesser-included offenses. See Hampton, 109 S.W.3d at 441; Bignall, 887 S.W.2d at 24. Thus, we conclude the trial court did not err by denying appellant's request for lesser-included offense instructions on aggravated assault, assault, theft, or making a terroristic threat. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment. FitzGerald, J., Concurring

Concurring Opinion By Justice FITZGERALD

CONCURRING OPINION

Appellant attacks both the indictment and the integrity of the trial based upon the State's alleged use of false testimony. The majority holds the State used false testimony, but it concludes that no due process violation occurred because the "use" was harmless. I write separately because I disagree with the majority's analysis and believe it warrants a response.

Appellant's Issue 1A: The trial court's denial of appellant's Motion to Quash Indictment based upon the State's use of known false testimony before the Grand Jury was error and requires the indictment be dismissed.

Issue Preservation

Appellant has not included his Motion to Quash Indictment in the appellate record before us. Instead, appellant has attached a copy of the motion to his brief as Exhibit A. A reviewing court cannot consider the contents of exhibits that are not contained in the appellate record. Amador v. State, 221 S.W.3d 666, 669 (Tex.Crim.App. 2007); Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 811 (Tex.App.-Dallas 2006, pet. denied). If an appellate court cannot consider the contents of an essential document such as the Motion to Quash because it is not in the appellate record, the appellate court may not reach the merits of the issue.

Merits

To place matters in perspective, appellant moved the court to quash the indictment on the ground that it was based on "material perjured testimony." At a pretrial hearing, appellant offered several documents that were admitted into evidence without objection: a "Collin County Grand Jury Civilian Witness Data Sheet," a transcript of co-defendant Simmons's plea of guilty, and a Collin County prosecutor's letter to appellant's counsel. Appellant offered the Data Sheet ostensibly to show that Carroll, the complainant, appeared before the grand jury that returned the indictment in this case. The Data Sheet, which identified Carroll as a grand jury witness, contained personal information about Carroll. The bottom of the sheet bore the written notation "did not testify" with the initials "J.H." This exhibit establishes the antithesis of what appellant sought to prove; that is, it shows that Carroll did not testify before the grand jury. Further, when Carroll was recalled by appellant late in the trial, he testified that he never appeared or testified before the grand jury. Appellant argued that the Simmons guilty-plea transcript showed that Carroll appeared at Simmons's trial and testified "he had never seen the three people that had entered his house." Appellant did not show whether this document was used before the grand jury, and, if so, its relevance. This document did not show Carroll admitted knowing the robbers. The letter from the prosecutor read:

Enclosed is a copy of James Carroll's statement to the police in case. I am supplying it to you because I believe there is Brady material involved. It is my understanding that you already know that Mr. Carroll, was on some level, selling drugs and your client and/or defendant Havard were his suppliers. Despite the fact that Mr. Carroll put in his statement and told the police that he didn't know his attackers. It is also my understanding that you are familiar with several contradictory, false, or misleading statements that Mr. Carroll has made regarding weapons taken, value, etc. It should be an interesting cross examination for you.

Please let me know if you need anything else. I believe we have previously given you the 38.22 notice for your client.

Someone with the initials "AR" signed the prosecutor's name. Carroll's statement was not attached and is not in the record. No witness was called with respect to this correspondence.¹ Appellant did not show this document was used before the grand jury. The trial court denied the Motion to Quash based on the evidence presented. Under these circumstances, the trial court properly denied appellant's Motion to Quash because appellant never showed the court what evidence the grand jury considered and certainly made no showing that the State used allegedly "known false testimony" before the grand jury.

Appellant's Issue 1B: The State's use of the known false testimony at trial violated the Due Process Clause of the United States Constitution Amendment XIV, was error, and requires reversal and remand.

Pretrial Background

At the pretrial hearing, the trial court entertained appellant's Motion in Limine.² The Motion in Limine alleged in part that appellant "anticipated introduction by the prosecution of possibly perjured testimony by the complainant, Willie James Carroll, II." Appellant contended the complainant would perjure himself "when he claims this is a `stranger-on-stranger' offense and not a dispute between a drug dealer and his customers." During the pretrial hearing, appellant moved the court to conduct a hearing to determine whether the complainant had committed perjury or intended to commit perjury during this trial, before the complainant would be permitted to testify. The State agreed that the trial court should conduct a hearing before Carroll was questioned as to whether he knew the three men prior to the robbery. The trial court granted the motion "if and when [Carroll] is called." Appellant never referred to this motion again nor did he ever make any trial objection based on its contents.

Trial Testimony at Issue

On appeal, appellant complains of the State's use of "known false testimony at trial." Appellant's claim is based entirely on Carroll's testimony. Appellant has failed to identify in his argument³ where in this voluminous six-volume record the State used this testimony. The "Statement of Facts" portion of his brief does refer to specific testimony of Carroll.⁴ On direct examination, after Carroll testified that his sleep was interrupted by armed robbers demanding his money, the following occurred:

Q. When they pointed the guns at you, were you in fear of imminent bodily injury or death?

A. Oh, of course. I mean, three guys you don't know pointing guns at you, I mean, I believe anybody would be scared for their life.

The portion of Carroll's answer referring to "three guys you don't know" was not responsive to the State's question whether he was in fear, and the State did not develop that statement further in its examination. On cross examination, appellant immediately revisited this subject, twice reaffirming Carroll was testifying that he did not know the three robbers.

Issue Preservation

Appellant did not object to the answer of the witness, and, therefore, failed to preserve the issue for review. See Tex. R. App. P. 33.1(a)(1); see also Roberts v. State, 220 S.W.3d 521, 533 (Tex.Crim.App.), cert. denied, 128 S. Ct. 282 (2007); Willeford v. State, 72 S.W.3d 820, 824-25 (Tex.App.-Fort Worth 2002, pet. ref'd) (citing Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990)) (almost every right, constitutional or statutory, may be waived by failure to object). In addition, appellant did not move to strike the testimony or ask to approach the bench at any time in order to re-urge his previously granted Motion in Limine. See Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App. 1999) (to preserve error, party must contemporaneously inform trial court, by request, objection, or motion, not only of objectionable matter, but also of specific grounds underlying complaint). It is well-settled that the denial of a motion in limine is not sufficient to preserve error for review, but rather there must be a proper objection to the proffered evidence. Castillo v. State, 79 S.W.3d 817, 826 (Tex.App.-Dallas 2002, pet. ref'd) (citing McDuff v. State, 939 S.W.2d 607, 618 (Tex.Crim.App. 1997)). In this case, the trial court granted the Motion in Limine and ordered a hearing on request, but appellant never made any such request. Further, a review of the record shows that a number of police officers testified before Carroll did, and that the State, in full compliance with the trial court's ruling, studiously refrained from questioning any of the witnesses about whether Carroll ever said he did not know the robbers. Appellant's approach was remarkably different. Well before Carroll testified, a supervising officer was called by the State.⁵ During cross examination, appellant elicited evidence that the officer received information at the scene that the three men who had broken into the condo were trying to collect money the complainant owed them, but that the complainant said he had no idea who these individuals were. He also testified that after further investigation he learned that the complainant and the three men were not strangers, that they were asking for money the complainant owed them, and that the complainant did know at least one of the men. Appellant cross-examined a second officer, a detective who had questioned appellant, as to whether it was his impression that the complainant and co-defendant Havard knew each other or were strangers.⁶ The officer likewise responded that he had the impression they may have known each other. The record shows appellant chose to develop the very subject matter his Motion in Limine was designed to challenge and exclude. Appellant specifically questioned two witnesses, both of whom testified before Carroll did, about whether Carroll knew the robbers. The trial court's ruling certainly did not proscribe appellant from so inquiring, but, having done so, appellant opened the door to such inquiries and cannot now be heard to complain of Carroll's brief testimony on direct examination on the same subject matter. See, e.g., Feldman v. State, 71 S.W.3d 738, 755-56 (Tex.Crim.App. 2002) ("an appellant who `opens the door' to otherwise inadmissible evidence risks having that evidence admitted and used against him"). Finally, after Carroll testified, another police officer testified on both direct and cross that Carroll claimed the robbers were strangers, but the officer was dubious about this claim; the officer did not believe, based on his experience, that this was a random attack. The same statement complained of by appellant was thus elicited from this officer, without objection.⁷ See Massey v. State, 933 S.W.2d 141, 149 (Tex.Crim.App. 1996) ("If a defendant objects to the admission of evidence but the same evidence is subsequently introduced from another source without objection, the defendant waives the earlier objection."); Cole v. State, 194 S.W.3d 538, 545 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) ("[A]n error in admission of evidence is cured when the same evidence comes in elsewhere without objection.").

Merits

On the merits, the majority holds the State used known false testimony in its prosecution of appellant, but that no due process violation occurred because the "use" was harmless error. The majority concludes the State used false testimony by permitting Carroll to testify on direct examination and several times on cross-examination, without correction, that he did not know the robbers. When an issue is not properly preserved, as a general rule no further discussion is undertaken. In this case, however, I am compelled to respond to the majority's conclusion that the State used false testimony. I strongly disagree. Initially, we must place the positions of the parties and the facts in context.

( 1) Opening Statements

During its opening statement, the State acknowledged that some evidence would show that the complainant "ripped [the robbers] off on a drug deal; they got bad drugs," and that this "may or may not be true, but there's certainly some indication of that." But, the State proposed, the evidence would also include appellant's statements to the police, in which he admitted committing the elements of aggravated robbery. In his opening statement, appellant stated that, after being solicited, he loaned $700 to Doug Havard "without knowing what the purpose of the $700 was." Several weeks later, Havard demanded appellant accompany him to retrieve the $700, and appellant agreed as long as he would not be late for class. When appellant met up with Havard in a parking lot, to his surprise a complete stranger was with Havard. The three men went to the condo and illegally entered. When they confronted the complainant in bed, "serious events occurred" and appellant was "the tag-along. Almost mere presence," through the subsequent assault.

( 2) Evidence

The undisputed facts showed the police caught appellant and his confederates in the act of committing aggravated robbery. The robbers wore gloves and brandished weapons, and at least Havard and appellant were wearing body armor, when they broke into the residence Carroll shared with his brother and his parents. Carroll was threatened and pistol whipped numerous times, and his property was taken. Appellant gave three separate statements.⁸ In each of them appellant admitted his active involvement in the armed robbery.⁹

( 3) Analysis The Law

Certain principles are well established: the State may not obtain a conviction based upon the knowing use of perjured testimony. The "deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with `the rudimentary demands of justice.'" Giglio v. United States, 405 U.S. 150, 153 (1972) (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)); see also Pyle v. Kansas, 317 U.S. 213, 216 (1942); Ramirez v. State, 96 S.W.3d 386, 393-94 (Tex.App.-Austin 2002, pet. ref'd). The prosecution also may not present a false picture of facts by failing to correct its own testimony when it becomes apparent it was false. Luck v. State, 588 S.W.2d 371, 373 (Tex.Crim.App. 1979); see also Napue v. Illinois, 360 U.S. 264, 269-70 (1959).

Use of Carroll's Statement

The majority holds Carroll's testimony that he did not know the three men was false and misleading because of matters developed by appellant either on cross-examination or by independent evidence. T here is no need to dwell on the issue of falsity¹⁰ because the State did not use the statement in question in this criminal prosecution. During the trial, the State stressed that the evidence-that is, the testimony of the arresting police officers and appellant's three confessions-proved appellant guilty of aggravated robbery, without regard to Carroll's veracity. Appellant presented no legal defense. Appellant never challenged the very statements he gave to the police in which he admitted committing aggravated robbery.¹¹ Appellant was the first and only party to develop through detailed cross-examination of several police officers that Carroll claimed he did not know the three robbers. Appellant then elicited evidence through the same officers that Carroll may have known the three robbers and that this incident could have escalated from a drug deal gone sour. Appellant engaged in this line of inquiry long before Carroll testified in this case. When Carroll testified, he volunteered on direct examination that "three guys" he didn't know pointed guns at him. On cross-examination, appellant further explored the nature of this statement and then impeached Carroll with evidence of other facts and circumstances. For example, immediately after his arrest, appellant identified Carroll by his nickname "PeeWee." Havard's telephone records showed calls from his telephone to the residence occupied by Carroll and his family. A female approached police at the scene and told them Carroll was a drug dealer who owed her money.¹² Finally, police found drug paraphernalia in Carroll's bedroom, and Carroll's brother suspected Carroll was a drug dealer and that this incident was a "drug deal gone bad." It is within this context that we must view appellant's complaint, that the State used false testimony to secure appellant's conviction. Appellant argued to the jury that the State's entire case hinged on the credibility of Carroll: Carroll's testimony constituted blatant perjury; therefore the jury should find Carroll's testimony unbelievable and acquit appellant of aggravated robbery. Appellant also argued that the State "did not want much to do with Willie Carroll," that the State literally asked Carroll his name, whether he was at home on the day of the event, and "what happened. Okay. Pass the witness." For its part, the State argued to the jury that the case was not about Carroll; it was about three robbers caught in the act of an armed robbery and about appellant's three unchallenged confessions. In short, appellant was not simply present but was an active participant. Appellant's trial strategy was designed to cast Carroll as a malevolent, lying drug dealer who preyed on the public and to characterize the charged offense of aggravated robbery as too harsh, unfair, and unjust.¹³ Appellant's trial strategy depended upon developing Carroll's statement, from law enforcement officers and from Carroll himself, that the robbers were strangers in order to lay the foundation for impeaching Carroll's credibility. Appellant's entire line of questioning, consistently highlighting and emphasizing Carroll's statement, confirms this strategy.¹⁴ Carroll's statement was beneficial to appellant, as it laid the groundwork that enabled appellant to subsequently impeach Carroll with extrinsic evidence. The State, on the other hand, never relied upon Carroll's statement, and, as stressed by appellant at trial, the State distanced itself from Carroll's testimony.¹⁵ When the testimony at issue is placed in context, it is appellant, not the State, who not only used but exploited Carroll's statement to buttress appellant's own position. See Luck, 588 S.W.2d at 373 (when alleged perjury is developed solely through cross-examination by defense, State has not "used" testimony to obtain conviction). In this case the State did not deliberately attempt to deceive the jury, either through nondisclosure of facts or intentional use of false evidence. The State properly disclosed Brady ¹⁶ material. Appellant's trial counsel then zealously represented his client by trying to undercut Carroll's credibility, first "exposing" a prior statement in which he claimed the robbers were strangers, and then undermining this claim with contradictory evidence. Viewed in perspective, the facts compel the conclusion that the State did not use Carroll's statement in the prosecution of appellant and that the State did not use allegedly "known false testimony" in the prosecution of appellant.

Corrective Action

The majority also holds the State failed to correct Carroll's statement. Prior to trial, the State fully disclosed Brady material in the form of a prosecutor's letter to defense counsel. Appellant was expressly made aware that Carroll claimed the robbers were strangers. During trial, appellant, with full knowledge of the Brady material, elicited from several police officers Carroll's statement that the robbers were strangers; appellant then developed testimony impeaching Carroll and contradicting his statement. Appellant's trial strategy, thus, fully developed all of the facts concerning Carroll's statement and effectively "corrected" any falsity in Carroll's statement. Indeed, it is not clear what more the State could have done to "correct" the statement once appellant had developed all the evidence contradicting it. Under these circumstances, the State did not use false testimony in order to perpetrate a deliberate deception of the jury and bore no obligation in this case to take corrective action. For these reasons, I concur in the judgment only as to both parts of appellant's first issue; I agree with the majority's disposition of appellant's remaining issue.