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577 S.W.2d 265

Ex Parte Burkett

Court of Criminal Appeals of Texas

Decided February 21, 1979

Court of Criminal Appeals of Texas · decided 1979-02-21

Key passage — most relied on by later courts

“"Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words."”

quoted by 3 later decisions, including Jones v. State, Sifford v. State

““... AUDREE LACY [sic] MCCULLAR, hereinafter styled Defendant, on or about the 24th day of June One Thousand Nine Hundred and Eighty-Two and anterior to the presentment of this indictment, in the County of El Paso and State of Texas, did then and there unlawfully with intent to deceive and with knowledge of the statement’s meaning the said AUDREE LACY [sic] MCCULLAR made a false statement under oath, to-wit: that he had never been in the penitentiary anywhere, said statement being required or authorized by law to be made under oath, and said statement was a material statement, and was made during or in connection with an official proceeding, to-wit: a Writ of Habeas Corpus, ...””

quoted by 2 later decisions, including Yarbrough v. State, McCullar v. State

Relies on Church v. State · Nixon v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1979-02-21

How this case has been cited

Cited by 15 later decisions — most recently October 2002

15 state decisions

1201979198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1OPINION

DOUGLAS, Judge.

¶2Charles Ray Burkett filed this application for writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P.

¶3On May 16,1978, petitioner was convicted by a jury of the offense of aggravated perjury. Punishment was assessed at two years.

¶4Petitioner contends that the indictment upon which he was convicted is fundamentally defective in that it fails to allege all of the elements of the offense of aggravated perjury. The relevant portions of the indictment charge that Burkett did:

“. . . Personally appear at an official proceeding, to-wit: a trial in the 89th District Court of Wichita County, Texas, styled ‘The State of Texas vs. Charles Ray Burkett’, and being Cause No. 17,-758-C on the docket of said Court and in connection with and during said official proceeding and after being duly sworn by the Honorable Temple Driver, Judge of said Court authorized by law to administer oaths, made, under oath, a false statement, to-wit: when the said Charles Ray Burkett was.asked Is it true that you have never before been convicted of a felony in this or any other State, he replied Yes, whereas in truth and in fact was convicted of the felony offense of theft of cattle on the 14th day of July, 1969, in the 50th Judicial District Court of Baylor County, Texas, in Cause No. 3003 styled the State of Texas vs. Charles Ray Burkett, and the said Charles Ray Burkett made said false statement with knowledge of the statement’s meaning and with intent to deceive, and said statement was material to the issue under inquiry during said official proceeding as to whether the said Charles Ray Burkett was eligible for probation, and said false statement could have affected the course and outcome of said official proceeding.

¶5The applicable elements of aggravated perjury, as defined in Chapter 37 of the Penal Code, are:

*2661. A person;
2. With intent to deceive;
3. With knowledge of the statement’s meaning;
4. Makes a material false statement under oath;
5. When the law authorized or required the statement to be made under oath;
6. During or in connection with an official proceeding.

¶6Petitioner contends that the indictment’s failure to allege that “the statement is required or authorized by law to be made under oath” renders the indictment fundamentally defective.

¶7Petitioner did not challenge the indictment during his original trial and even now does not contend that he was not given sufficient notice to defend himself against the charge. Article 21.17, V.A.C.C.P., provides:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

¶8The exact words of the statute need not be alleged when there is no material difference between the allegations. Nixon v. State, 572 S.W.2d 699 (Tex.Cr.App.1978); Church v. State, 552 S.W.2d 138 (Tex.Cr.App.1977).

¶9The indictment alleges that petitioner made the statement during an “official proceeding and after being duly sworn by the Honorable Temple Driver, Judge of said Court, authorized by law to administer oaths.” An allegation that he took an oath, by someone authorized to give an oath, during an official proceeding necessarily indicates that the statements made under that oath were “authorized by law to be made under oath.” The wording of the indictment and statute is sufficiently similar and there is no material difference. The indictment is proper.

¶10Relief is denied.

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