Texas Stamp

New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012

Texas Rules of Appellate Procedure Rules 80-80.1, effective December 1, 2019
The State Prosecuting Attorney must be served on every petition for discretionary review or brief filed by any party or amicus curiae in the Court of Criminal Appeals, including replies, responses, amendments, and supplements.

UKWUACHU, SAMUEL

PD-0776-19 10/02/2019

“Can you have a ‘false testimony’ claim without testimony or falsity?”

Ukwuachu was convicted of sexual assault. His defense was that it was consensual, and he presented his roommate as an “ear witness” to the lack of sounds of struggle. The State cross-examined the roommate and his friend using the roommate’s phone records, which had been ruled inadmissible due to the absence of a sponsoring witness. The records showed the roommate was out of the apartment during the relevant time. The roommate appeared to agree with the time-line reflected in the records, and his friend conceded that she could not remember when the roommate went home that night. No objections were made to this questioning.

Ukwuachu’s motion for new trial alleged a false impression had been recklessly created by the State because its reading of the phone records could have been inaccurate. It was denied. On appeal, he framed it as a “false-evidence” claim. The court of appeals agreed that “the State’s repeated references to what the cell phone records showed . . . without their admission into evidence created a false impression with the jury” and reversed.

The State challenges this holding on substantive and procedural grounds. First, there was no false testimony because the State’s questions are not testimony, there is no evidence the phone records were inaccurate, and the witnesses said their testimony—the real evidence in this case—was truthful. Second, Ukwuachu did not object based on this or any other theory of improper comment, use, etc., and his appellate claim does not even match the error alleged in his motion for new trial. Third, even if properly preserved, this case could have been decided on the trial court’s ability to disbelieve any relevant evidence Ukwuachu presented in that motion.

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