Opinion filed January 19, 2012
In The
Eleventh Court of Appeals
__________
No. 11-10-00012-CR
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MARKUM WOODROW PEAVEY, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 26th District Court
Williamson County, Texas
Trial Court Cause No. 08-1604-K26
MEMORANDUM OPINION
The trial court convicted Markum Woodrow Peavey of aggravated perjury. The trial
court found three enhancement allegations to be true and assessed appellant’s punishment at
confinement for a term of thirty years. Because appellant committed the aggravated perjury
offense while he was incarcerated, the trial court ordered that the thirty year sentence run
consecutively to the fifty-five year sentence appellant was serving when he committed the
aggravated perjury offense. See TEX. CODE CRIM. PROC. ANN. art. 42.08(b) (West Supp. 2011).
In his sole point of error on appeal, appellant challenges the sufficiency of the evidence to
support his conviction. We affirm.
Background
In 2003, appellant pleaded guilty to the felony offense of driving while intoxicated in
Cause No. 01-995-K368 in Williamson County, Texas. Appellant also pleaded true to an
enhancement allegation. Pursuant to the plea bargain agreement, the trial court sentenced
appellant to confinement for a term of seven years. Appellant was released from prison on
parole in late 2004 or early 2005.
In 2006, appellant was convicted of another felony offense of driving while intoxicated
and sentenced as a habitual offender to confinement for fifty-five years. On March 5, 2008, the
district clerk of Williamson County received and filed an ―Application for a Writ of Habeas
Corpus Seeking Relief from Final Felony Conviction under Code of Criminal Procedure,
Article 11.07.‖ At that time, appellant was serving his fifty-five year prison sentence. The
application for writ of habeas corpus was assigned Cause No. 01-995-K368A. The application
was on the correct fill-in-the-blank form for filing an application for writ of habeas corpus. See
TEX R. APP. P. 73.1(a), app. H. The blanks in the form were filled in with typewritten words.
Appellant’s name and prison identification number were typed into the appropriate blanks on the
first page of the application. The application indicated that appellant was seeking relief from his
2003 conviction in Cause No. 01-995-K368 for driving while intoxicated. The application
alleged, among other things, that appellant was actually innocent of the driving while intoxicated
offense charged in Cause No. 01-995-K368. The application contained an ―INMATE’S
DECLARATION‖ requiring that the inmate ―declare under penalty of perjury that, according to
[his] belief, the facts stated in the application are true and correct.‖ The signature, ―Mark
Peavey,‖ was on the ―Signature of Applicant‖ line of the ―INMATE’S DECLARATION.‖
Ultimately, the application for writ of habeas corpus was denied.
The Charged Offense in This Cause
The State charged appellant with aggravated perjury under Section 37.03 of the Penal
Code because he allegedly made material false statements, under oath, in the above-mentioned
application for writ of habeas corpus. See TEX. PENAL CODE ANN. § 37.03 (West 2011).
Section 37.02 of the Penal Code provides, in relevant part, that a person commits the offense of
perjury ―if, with intent to deceive and with knowledge of the statement’s meaning: (1) he makes
a false statement under oath or swears to the truth of a false statement previously made and the
statement is required or authorized by law to be made under oath.‖ Id. § 37.02(a)(1). A person
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commits the offense of aggravated perjury ―if he commits perjury as defined in Section 37.02,
and the false statement: (1) is made during or in connection with an official proceeding; and
(2) is material.‖ Id. § 37.03(a)(1), (2).
The indictment alleged all the statutory elements of the offense of aggravated perjury.
Paragraphs One through Three of the indictment alleged that, in the application, appellant made
false statements under oath or swore to the truth of false statements previously made, as follows:
―that he is actually innocent of the offense when in fact [he] is guilty of the offense of Driving
While Intoxicated‖; ―that he passed the breath tests when in fact [he] failed the breath tests‖; and
―that the two breath tests indicated below a .01 when in fact the defendant’s breath tests were
0.10 or greater.‖ Paragraph Four of the indictment alleged that appellant made a material false
statement under oath or swore to the truth of a false statement previously made by making the
following two statements under oath, both of which cannot be true: ―(1) that he is guilty of the
offense of Driving While Intoxicated, a statement made during a guilty plea proceeding, and
(2) that he is actually innocent of the offense, a statement made in an application for writ of
habeas corpus.‖
Appellant’s Challenge to the Sufficiency of the Evidence
In his point of error, appellant challenges the factual sufficiency of the evidence to
support his conviction. In his appellate brief, appellant does not deny that the application for
writ of habeas corpus contained false statements. He acknowledges that the evidence established
that he pleaded guilty to the offense of driving while intoxicated and that the application for writ
of habeas corpus ―was filed for him.‖ However, appellant contends that there was no evidence
that he made a false statement under oath because the State failed to prove that he signed the
inmate’s declaration in the application. Therefore, appellant contends that the evidence is
insufficient to support his conviction for aggravated perjury.
Standard of Review
We review a sufficiency of the evidence issue, regardless of whether it is denominated as
a legal or as a factual sufficiency claim, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010);
Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the
Jackson standard, we examine all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and any reasonable inferences from it, any rational
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trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
The Evidence at Trial
The record shows that, on July 21, 2003, pursuant to a plea bargain agreement, appellant
pleaded guilty to the offense of driving while intoxicated in Cause No. 01-995-K368 in
Williamson County, Texas. The State introduced into evidence a copy of the judgment of
conviction in that cause number as State’s Exhibit No. 1. Before pleading guilty, appellant
signed his name – ―Mark Peavey‖ – on page 2 of a document entitled ―Admonitions to the
Defendant.‖ Appellant verified his signature to the court clerk. The State introduced a copy of
the admonitions into evidence as State’s Exhibit No. 8. In the admonitions, appellant judicially
confessed to committing the offense of driving while intoxicated. During the plea hearing,
appellant admitted that he committed the offense of driving while intoxicated on May 27, 2001,
as was alleged in the indictment in Cause No. 01-995-K368. The trial court accepted appellant’s
plea, found appellant guilty of the offense of driving while intoxicated, found an enhancement
allegation to be true, and assessed appellant’s punishment at seven years confinement. In late
2004 or early 2005, appellant was released from prison on parole.
In August 2005, appellant was indicted for the offense of driving while intoxicated in
Cause No. 05-855-K368 in Williamson County. That cause proceeded to a jury trial in June
2006. The jury convicted appellant, found three enhancement allegations to be true, and
assessed his punishment at fifty-five years confinement. Appellant testified during the
guilt/innocence phase and the punishment phase of the jury trial in Cause No. 05-855-K368.
When questioned about his 2001 arrest for driving while intoxicated that led to his 2003
conviction in Cause No. 01-995-K368, appellant testified that he did not realize how intoxicated
he was ―until he had the test‖ and that there was no doubt he was driving while intoxicated on
that occasion.
On March 5, 2008, the district clerk of Williamson County filed the subject application
for writ of habeas corpus. The State introduced a copy of the application into evidence as State’s
Exhibit No. 3. As stated above, the application indicated that appellant was seeking relief from
his conviction in Cause No. 01-995-K368 for driving while intoxicated. The application
contained the following statements, among others: (1) ―Applicant is actually innocent of this
offense as he passed two breath tests‖; (2) ―Applicant is Actually Innocent of Offense Charged‖;
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and (3) ―Applicant is actually innocent of this offense when the two breath tests indicated below
.01 on the breath test.‖ Page 11 of the application contained the following declaration:
INMATE’S DECLARATION
I, Markum Peavey, BEING PRESENTLY INCARCERATED IN McConnell
Unit-TDCJ-CID, DECLARE UNDER PENALTY OF PERJURY THAT,
ACCORDING TO MY BELIEF, THE FACTS STATED IN THE
APPLICATION ARE TRUE AND CORRECT.
SIGNED ON 2-26-2008.
/s/ Mark Peavey
Signature of Applicant
The name ―Markum Peavey‖ and the name of the prison unit were typewritten into the blanks in
the above declaration. The name on the signature line – ―Mark Peavey‖ – was handwritten.
The State introduced copies of other documents that were filed in the habeas proceeding
(Cause No. 01-995-K368A) into evidence as State’s Exhibit Nos. 4 through 7. Appellant’s name
was signed on each of these exhibits.
Department of Public Safety Trooper Michael Klein testified about appellant’s May 27,
2001 arrest for driving while intoxicated. Trooper Klein testified that he observed appellant
driving eighty-eight miles per hour in a sixty-five mile-per-hour zone. Trooper Klein also said
that appellant was driving erratically. Therefore, Trooper Klein activated the video equipment in
his patrol car and stopped appellant. The State introduced a copy of the videotape into evidence
as State’s Exhibit No. 14. Trooper Klein testified that appellant showed all six clues on the
horizontal gaze nystagmus test. Trooper Klein administered a portable breath test to appellant,
and the test indicated that appellant had an alcohol level of .15, which Trooper Klein said was
almost twice the legal limit. Appellant submitted to a second portable breath test, and it showed
the same result. Trooper Klein testified that he did not tell appellant he passed the test and that
he never told appellant that the test showed an alcohol level of below .01. Based on his
investigation, Trooper Klein arrested appellant for driving while intoxicated.
Trooper Klein administered an intoxilyzer test to appellant at the DPS office. Appellant
provided two breath samples during the test. The first breath sample taken from appellant
showed an alcohol concentration of .141, and the second breath sample taken from appellant
showed an alcohol concentration of .138. At one point, appellant thought he had passed the test
because the machine showed a ―000‖ during the test. The State introduced a printout showing
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the results of appellant’s intoxilyzer test into evidence as State’s Exhibit No. 17. Trooper Klein
testified that he showed the printout to appellant and explained to appellant that his samples
showed levels of .141 and .138.
Appellant presented Michael McCann as a witness. McCann testified that he was an
inmate at the McConnell Unit of the Texas Department of Corrections, which was also
appellant’s prison unit. McCann said that he was serving a life sentence for a capital murder
conviction. He also said that he had prepared over 600 applications for writs of habeas corpus
for inmates at the McConnell Unit.
McCann said that he and appellant discussed appellant’s Williamson County convictions.
Appellant provided McCann with information about those convictions. McCann believed that
appellant should attack his 2003 conviction for driving while intoxicated because that conviction
had been used to enhance appellant’s sentence in his later case. McCann testified that he typed
appellant’s application for writ of habeas corpus. At one point, McCann testified that he
believed he signed appellant’s name to the inmate’s declaration in the application. At another
point, McCann testified that he was ―90 percent sure‖ that he signed appellant’s name to the
inmate’s declaration. During cross-examination, the prosecutor showed the ―Mark Peavey‖
signature underneath the inmate’s declaration to McCann and asked McCann whether he wrote
it. McCann answered, ―I don’t think so. I’m not sure. That’s -- I don’t think that’s mine. That’s
really close.‖ Soon thereafter, McCann again testified that he was ―90 percent sure‖ that he
signed appellant’s name to the inmate’s declaration.
McCann was also questioned about other documents that were filed in appellant’s habeas
proceeding. The name, ―Mark Peavey,‖ was signed on each of these documents. State’s Exhibit
No. 4 was a letter to the district clerk. McCann testified that he wrote the letter and that
appellant signed appellant’s name on the letter. State’s Exhibit No. 5 consisted of an affidavit of
Mark Peavey and a letter transmitting the letter to the district clerk. McCann testified that he did
not sign appellant’s name to the letter and that he did not think he signed appellant’s name to the
affidavit. State’s Exhibit No. 6 was a motion requesting the court to review the videotape of the
2001 stop of appellant. McCann testified that he signed appellant’s name to the motion. State’s
Exhibit No. 7 was a response to the State’s answer to the application for writ of habeas corpus,
and it also included a request for an evidentiary hearing. McCann testified that he signed
appellant’s name to the response and to the certificate of service on the response.
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Analysis
Appellant states in his brief that ―[t]he issue in this appeal is whether [he] made a false
statement under oath.‖ Appellant contends that the State failed to prove that he signed the
inmate’s declaration on the application for writ of habeas corpus and that, therefore, the State did
not establish that he made any statements under oath. Based on these contentions, appellant
argues that the evidence was insufficient to establish that he made a false statement under oath.
Under Article 38.27 of the Code of Criminal Procedure, authentication of handwriting
may be established by a comparison of documents performed either by experts or by the jury.
TEX. CODE CRIM. PROC. ANN. art. 38.27 (West 2005); Logan v. State, 48 S.W.3d 296, 301 (Tex.
App.—Texarkana 2001), aff’d, 89 S.W.3d 619 (Tex. Crim. App. 2002). In a nonjury trial, such
as this cause, Article 38.27 authorizes the trial court to compare handwriting on documents to
determine the authenticity of the handwriting in question. Herndon v. State, 543 S.W.2d 109,
118 (Tex. Crim. App. 1976). Proof by comparison to other writing samples is sufficient, by
itself, to establish authenticity of the signature of a defendant on a document if the defendant
fails to deny, under oath, the authenticity of his signature on the document. Article 38.27;
Camacho v. State, 765 S.W.2d 431, 434 (Tex. Crim. App. 1989); Ex parte Watson, 606 S.W.2d
902, 905 (Tex. Crim. App. 1980); Logan, 48 S.W.3d at 301. Appellant did not deny, under oath,
the authenticity of his signature on the application for writ of habeas corpus. Thus, the
authenticity, or lack thereof, of appellant’s signature on the application could be established by
the trial court’s comparison of the signature on the application with appellant’s signature on
other exhibits that were admitted into evidence. Logan, 48 S.W.3d at 301.
The evidence showed that appellant signed his name on the admonitions to defendant in
Cause No. 01-995-K368. A copy of the admonitions was admitted into evidence as State’s
Exhibit No. 8. A copy of the application for writ of habeas corpus was admitted into evidence as
State’s Exhibit No. 3. The signature, ―Mark Peavey,‖ is under the inmate’s declaration in the
application. The signatures on the application and the admonitions are very similar. Based on
the evidence, the trial court could have reasonably concluded that appellant signed the
application. Article 38.27; Logan, 48 S.W.3d at 301. Therefore, we find that the evidence is
sufficient to establish that appellant signed the application.
McCann gave inconsistent testimony about whether he signed appellant’s name on the
application for writ of habeas corpus. McCann first testified that he was ―90 percent sure‖ that
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he signed appellant’s name. Later, McCann said that he did not think he signed appellant’s
name. Finally, McCann again said that he was ―90 percent sure‖ that he signed appellant’s
name. As the trier of fact, the trial court was the sole judge of the credibility of the witnesses and
the weight to be given their testimony, and it was free to believe or disbelieve all or any part of
any witness’s testimony. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App, 1987);
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Polk, 337 S.W.3d at 289. Thus,
the trial court was free to disbelieve McCann’s testimony. McCann also testified that he signed
appellant’s name on State’s Exhibit Nos. 6 and 7. We note that the ―Mark Peavey‖ signatures on
these exhibits are different from the ―Mark Peavey‖ signature on appellant’s application for writ
of habeas corpus.
The evidence, which is summarized above, showed that appellant’s application for writ of
habeas corpus contained false statements that appellant was ―actually innocent of this offense,‖
that appellant ―passed two breath tests,‖ and that ―the two breath tests indicated below .01.‖ A
statement is ―material‖ if it could have affected the course or outcome of the official proceeding.
TEX. PENAL CODE ANN. § 37.04(a) (West 2011). A habeas proceeding is an official proceeding.
See id. § 1.07(a)(33) (West Supp. 2011) (―Official proceeding‖ is defined as including ―any type
of . . . judicial proceeding that may be conducted before a public servant.‖). Whether a statement
is material in a given factual situation is a matter of law. Id. § 37.04(c) (West 2011). The false
statements in appellant’s application, if true, could have affected the course or outcome of the
habeas proceeding. Therefore, the false statements were material. We hold that the evidence is
sufficient to support appellant’s conviction for aggravated perjury. Appellant’s point of error is
overruled.
This Court’s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
January 19, 2012 JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.
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