Soliz, David S. v. State ( 2003 )

Affirmed and Memorandum Opinion on Remand filed October 28, 2003

Affirmed and Memorandum Opinion on Remand filed October 28, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-99-01095-CR

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DAVID S. SOLIZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 2

Fort Bend County, Texas

Trial Court Cause No. 73,076

M E M O R A N D U M  O P I N I O N  O N  R E M A N D

Appellant David S. Soliz was convicted by a jury of misdemeanor perjury and sentenced to one year in jail and a $500 fine, both probated.  On original submission in three issues, he complained that the evidence was legally and factually insufficient to prove venue was proper in Fort Bend County, Texas.  We reversed on original submission, finding the State failed to come forward with evidence of an act appellant committed in Fort Bend County to support venue.  On petition for discretionary review, the Court of Criminal Appeals held venue was proper in Fort Bend County and remanded to this court for proceedings consistent with its opinion.

Background

Appellant sued Apollo Paint and Body and its owner, Farouk Al Attar, in Fort Bend County small claims court, alleging Apollo converted appellant=s personal property when appellant=s employment with Apollo terminated.  Apollo suffered a default judgment and appealed de novo to the Fort Bend County Court.  In connection with its appeal, Apollo noticed appellant=s deposition.  Appellant gave his deposition at the office of Apollo=s attorney, William Harmeyer, in Harris County, Texas.  During the deposition, Harmeyer questioned appellant about his background, including his educational and employment history.  Appellant testified that he graduated with a business degree from the University of Houston.  At the trial of the civil lawsuit in Fort Bend County, appellant was called as a witness and readily admitted to the court and the jury that he had lied in his deposition when he testified that he earned a degree from the University of Houston.

Subsequently, the State charged appellant with perjury, a Class A misdemeanor, which provides that A[a] person commits an offense if, with intent to deceive and with knowledge of the statement=s meaning . . . he makes a false statement under oath . . . and the statement is required or authorized by law to be made under oath . . . .@  Tex. Pen. Code Ann. ' 37.02(a)(1) (Vernon 1994). Venue was predicated on appellant=s alleged attempted use of the perjured statement in Fort Bend County.  See Tex. Code Crim. Proc. Ann. art. 13.03 (Vernon 1977).  At the close of evidence, appellant moved for a directed verdict on the ground that the State failed to prove venue.  The motion was denied, and appellant was convicted and sentenced to a $500 fine and one year in jail, probated.

On original submission, appellant raised three issues contending the trial court erred in denying his motion for directed verdict because the evidence was legally and factually insufficient to support venue in Fort Bend County.  This court held the State failed to come forward with any evidence of an act appellant committed in Fort Bend County to support venue and reversed appellant=s conviction.

The Court of Criminal Appeals reversed this court and found that venue lies in Fort Bend County because appellant=s false statement in Harris County was Aused or attempted to be used@ in Fort Bend County when it was made in his party-witness deposition in a pending Fort Bend County lawsuit.  See Soliz v. State, 97 S.W.3d 137 (Tex. Crim. App. 2003).  The court further held: 

First, it is not necessary for a party-deponent to offer his own false deposition testimony into evidence in the county in which the lawsuit is pending to establish venue in that county.  Second, a party-deponent who intentionally makes a false statement in his deposition has Aused or attempted to use@ that statement in the underlying lawsuit when he testifies in his deposition.  Third, venue is indeed proper for misdemeanor perjury in a county where the party=s false deposition testimony is used by his opponent to impeach that party at trial.  Fourth, appellant=s false statement in his party-deposition was Aused@ in the underlying Fort Bend County lawsuit at the very moment he testified in the Harris County deposition.^[1]   

Based on that holding, the Court of Criminal Appeals remanded to this court for proceedings consistent with its opinion.  The only remaining issue to be resolved is appellant=s third issue in which he contends the evidence is factually insufficient to show that appellant attempted to use the false statement in Fort Bend County.^[2]  We conduct a factual-sufficiency review by asking whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Because the Court of Criminal Appeals held that appellant=s false statement was used in the underlying lawsuit Aat the very moment he testified in his Harris County deposition,@ we find the evidence factually sufficient to support venue in Fort Bend County.

The judgment of the trial court is affirmed.

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Leslie Brock Yates

Justice

Judgment rendered and Opinion filed October 28, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Soliz, 97 S.W.3d at 147-48.

^[2]  The Court of Criminal Appeals does not have jurisdiction over factual sufficiency issues. Tex. Const. art. V, ' 6.