Samuel Ukwuachu v. State

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0776-19

SAMUEL UKWUACHU, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
MCLENNAN COUNTY

SLAUGHTER, J., delivered the opinion of the Court in which KEASLER,
RICHARDSON, YEARY, and KEEL, JJ., joined. KELLER, P.J., and HERVEY, NEWELL,
and WALKER, JJ., concurred.

OPINION

It is axiomatic that a due process claim based on false evidence requires the

defendant to prove first and foremost that the evidence was actually false. Ex parte

Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014). In the instant case, the court of appeals

reversed Appellant’s conviction for sexual assault by concluding that the State improperly
 Ukwuachu - 2

used cell-phone call and location records to impeach two defense witnesses, thereby

resulting in the introduction of false evidence in violation of his due process rights. Yet,

the phone records at issue were never admitted into evidence nor made part of the record.

Further, no expert testimony was introduced to establish that the State misled the jury

regarding any particular information shown in the records. Without these phone records or

such expert testimony, Appellant cannot prove that the State actually elicited witness

testimony that conflicted with the substance of those records. Accordingly, Appellant has

failed to make the requisite showing of falsity that must underlie any false-evidence due

process claim. We, therefore, reverse the judgment of the court of appeals granting

Appellant a new trial, and we remand this case for consideration of Appellant’s remaining

issues on appeal. 1

I. Background and Procedural History

In 2014, Appellant was indicted for sexually assaulting a college classmate,

Krystal. 2 The record showed that the two had met in class and spent time together on

1
This is the second time this Court has granted the State’s petition for discretionary review in this
case. We previously granted review following the court of appeals’ earlier reversal of Appellant’s
conviction based on its conclusion that the trial court had erroneously excluded from evidence
certain records of text messages between the victim and a friend during the time leading up to the
assault. Ukwuachu v. State, No. 10-15-00376-CR, 2017 WL 1101284 (Tex. App.—Waco March
22, 2017) (mem. op., not designated for publication). On review of that decision, we reversed the
court of appeals’ judgment and remanded for consideration of Appellant’s remaining points of
error. Ukwuachu v. State, No. PD-0366-17, 2018 WL 2711167, at *4 (Tex. Crim. App. June 6,
2018) (plurality op., mem. op., not designated for publication). On remand, the court of appeals
once again reversed Appellant’s conviction based on the introduction of false evidence at his trial.
Ukwuachu v. State, No. 10-15-00376-CR, 2019 WL 3047342 (Tex. App.—Waco July 10, 2019)
(mem. op., not designated for publication). It is this opinion after remand that is at issue in this
proceeding.
2
Aside from identifying her as “Jane Doe” in the indictment, it does not appear that the
complainant in this case has been assigned any pseudonym thus far in the proceedings to protect
her confidentiality. We assign her the pseudonym above for that purpose.
 Ukwuachu - 3

several occasions before the incident in question, with some suggestion that there was a

romantic interest forming between them.

At Appellant’s jury trial, it was undisputed that he and Krystal had sex on the night

in question. Therefore, the sole contested issue at trial was consent. Krystal testified that

on the night of the offense, she and Appellant had seen each other at a party and agreed to

meet afterwards. Shortly thereafter, Krystal called Appellant to let him know that she was

home. Appellant picked her up from her apartment a little after 2 a.m. Although Krystal

believed they were going to another party or to get something to eat, Appellant instead took

her back to his apartment. Once there, they went into his bedroom where, after a short time,

Appellant forced himself upon Krystal and raped her. She testified that she repeatedly

screamed “no” and “stop.” Krystal believed that if anyone else had been in the apartment

at the time, he or she would have heard the screams. She further testified that she knew

Appellant had a roommate, but she believed that she and Appellant were alone in the

apartment during the offense.

Following Krystal’s testimony, on the second day of trial, the State informed

defense counsel that it had just that morning obtained the cellular phone records of

Appellant’s roommate, Peni Tagive, from the night of the offense. Tagive was expected to

testify, consistent with his grand jury testimony, that he had been home in his room at the

time of the alleged offense and had not heard any screams or sounds of a struggle coming

from Appellant’s bedroom. 3

3
The record indicates that Appellant and Tagive shared a two-bedroom apartment, with each
having their own bedroom separated by a shared living room / kitchen area.
 Ukwuachu - 4

In a discussion outside the jury’s presence, the State told the court that its designated

expert reviewed Tagive’s cell phone call and location records. The expert noted that the

records conflicted with Tagive’s grand jury testimony that he was home asleep by around

midnight or 12:30 a.m. on the night of the offense. Instead, according to the State, the

records showed that Tagive was “making calls all night and his phone bounces around at

different [cell] towers in town.” In light of this information, Tagive’s attorney informed the

prosecutor that Tagive “might take the Fifth.” 4 Defense counsel asked for and was granted

a recess for the remainder of the afternoon to review the records and speak to Tagive.

The following morning, defense counsel filed a motion in limine regarding the

State’s use of Tagive’s phone records. Counsel asserted that the State had failed to provide

timely notice of its intention to admit business records and that there was no live witness

to sponsor the records. He also urged that the time stamps in the records were “based on

time zones that were five hours off.” This time difference, he argued, meant that the State’s

interpretation of the records was incorrect and did not prove inaccuracies in Tagive’s grand

jury testimony. In response, the State acknowledged the time zone issue and asserted that,

even if the time stamps were off by five hours, the adjusted time stamps and location data

were still in conflict with Tagive’s prior statements regarding his whereabouts at the time

of the offense.

4
Tagive had retained an attorney to represent him after he was arrested following his earlier failure
to appear before the grand jury. Tagive eventually did appear before the grand jury and gave
testimony favorable to Appellant’s defense, as indicated above.
 Ukwuachu - 5

The trial court ruled the phone records inadmissible because the State had not timely

filed notice of its intent to introduce business records. But, the trial court also agreed that

the State could ask Tagive “if he was making phone calls” on the night of the offense.

The trial proceeded with the testimony of Tagive, as well as Tagive’s friend, Morgan

Reed, who had given him a ride home on the night in question. Tagive and Reed provided

largely consistent timelines of the events that night. Sometime shortly after midnight,

Tagive called Reed to ask for a ride home from a party. At approximately 12:30 a.m., Reed

picked up Tagive, went through a fast-food drive-thru, and then drove Tagive home to his

apartment. Appellant was not home when Tagive and Reed arrived. Reed testified that she

left the apartment between 1:00 and 1:30 a.m., and Tagive testified that he then went to

bed. Tagive later heard Appellant talking to a female in the living room. When the voices

stopped, Tagive assumed that the two had gone into Appellant’s bedroom. Tagive testified

he never heard any screaming or sounds of a struggle. He stated that he was a light sleeper

and would have heard such noises coming from Appellant’s bedroom.

On cross-examination, the State attempted to impeach Tagive and Reed’s testimony

by alluding to inconsistencies allegedly shown by Tagive’s phone records. For example,

the prosecutor asked Reed “why [her] phone records show [Tagive] called you at one

o’clock from across town from his apartment?” Reed responded, “I don’t believe that’s

true.” The State pressed Reed further, asking her why her timeline didn’t “match up” with

the phone records regarding when and from where Tagive had called her that night. 5 Reed

5
The following exchange occurred between Reed and the prosecutor:

Q: Okay, ma’am. He [Tagive] made calls at one o’clock from across town. Would you like to
tell this jury why that doesn’t match up to your statement?
 Ukwuachu - 6

maintained that she was being truthful in her testimony and that her timeline was not

inconsistent with the phone records. But she also conceded that she may have picked up

Tagive from the party as late as 1 a.m. and that she was not sure of the exact time she

dropped Tagive off, but believed it was between 1:00 and 1:30 a.m.

Similarly, while cross-examining Tagive, the State pointed out that Tagive told

investigators and the grand jury that he was home and in bed by midnight or 12:30 a.m. on

the night of the offense. In response, Tagive indicated that he was not sure of the exact

times and his recollection of the timeline was only an estimate. The following exchange

then occurred:

[State] Now, you know we got your phone records.
[Tagive] Yes, sir.
[State] You know your phone records show you were across town at one o’clock
in the morning and you were making calls to [Reed] at one o’clock in the morning.
[Tagive] Yes, sir.
[State] Okay. You know your phone call . . . records also show you were making a
call around 2:00 in the morning.
[Tagive] Yes, sir.

A: I believe it does.
Q: So if he’s calling you from his apartment at one o’clock and you’re there.
...
Q: Tell this jury why that doesn’t match up.
A: Honestly, it was two years ago. I could have picked him up at 1:00.
Q: Well, no, you’re calling him at 12:30 as well. Why are you still calling him at 1:00?
A: I had a recruit with me that night and I think that he called me multiple times. I wasn’t on
my phone.
Q: No. I’m talking about calls between you and [Tagive].
A: Yeah. I’m saying that I think he called me multiple times before I answered. We had a few
calls, like calls going back and forth. . . .
Q: Yeah, I understand that. Hold on. But if you’re with him at 1:00, why is he calling you?
A: I’m saying—
Q: You told this jury you were out of there by 1:00 to 1:30. Why is he still calling you?
Because you said you went to get something to—something to eat in that time period.
Would you like to tell the jury about this?
A: I’m telling the truth.
Q: It doesn’t match the facts.
 Ukwuachu - 7

Notably, during the State’s cross-examination of Tagive and Reed, defense counsel

did not raise any objections to the State’s use of the unadmitted phone records. The only

objection defense counsel raised occurred during the cross-examination of Reed, when

counsel at one point objected to the State’s repetitive questioning of Reed on an issue that

had been “asked and answered.” The jury ultimately convicted Appellant and sentenced

him to eight years’ imprisonment. Upon the jury’s recommendation, the trial judge

suspended imposition of the sentence and placed Appellant on community supervision for

a period of ten years.

Motion for New Trial

Following his conviction, Appellant filed a motion for new trial in which he

contended, among other things, that the State improperly used the unadmitted phone

records to impeach Tagive at trial. Specifically, Appellant contended that the State’s use

of the phone records “without authentication, introduction into evidence, or use of a witness

qualified to interpret the records . . . created a false image to the jury that was reckless on

the part of the State.” In support of this claim, Appellant submitted an affidavit from Tagive

indicating that, after the State received the phone records and confronted Tagive about the

alleged inconsistencies, Tagive’s attorney reviewed the records and determined “that the

times listed on the telephone records were being misinterpreted and that the records

matched with [Tagive’s] version of the events.” Tagive further stated that he testified

truthfully at Appellant’s trial regarding the timeline of events. 6

6
Appellant also submitted an affidavit from Tagive’s attorney, which stated, “Upon review of the
records, it was determined that the times shown on the records were not based on central daylight
time. Once a proper conversion was made, the records would otherwise match with the events
related by my client, Mr. Tagive.”
 Ukwuachu - 8

Appellant also submitted an affidavit from Dan James, a computer forensic

investigator who reviewed Tagive’s phone records. James stated that the call times listed

in the records were stored and displayed in “UTC” (Coordinated Universal Time) and that

a conversion to Central Daylight Savings Time would require an adjustment of six hours.

Thus, according to James, the times reflected on the records would have to be adjusted by

six hours earlier than the time indicated in order to convert the recorded time to the local

time in Waco on the night of the offense. 7 Regarding the records’ location data, James

stated:

[T]he longitude and latitude figures provided on the mobility usage, in my
experience, are rarely accurate. Those figures cannot be relied upon to
accurately provide locations of cell towers used to connect the calls. In my
experience it would take an expert to spend a number of hours to evaluate
the records and cell tower locations in order to make a final determination of
whether the longitude and latitude listed is accurate. Without the proper
training and expertise necessary in order to properly evaluate the accuracy of
these records, any use of those records would be reckless and without any
factual basis.

The trial court held a hearing on Appellant’s motion for new trial. No witnesses

relevant to these claims were called to testify. In his arguments to the court, Appellant

asserted based on James’s affidavit that it was “impossible to demonstrate in that short

7
In this portion of his affidavit regarding the time zone issue, James stated,

An examination of the records provided pursuant to the search warrant begins by
clearly stating that the call times were stored and displayed in UTC. UTC is a
primary time standard by which the world regulates clocks and time. A conversion
from UTC to Central Daylight Savings Time would be a difference of 6 hours.
Therefore, when analyzing the records provided by AT&T for [Tagive’s] cellular
number [ ], the times reflected on the records would have to be adjusted by 6 hours
earlier than the time stated in order to convert the connection time to that time in
Waco, Texas, on October 20, 2013.
 Ukwuachu - 9

amount of time [after the State received the records] where these calls were being made

from.” Appellant pointed out that the records had not been admitted, nor was there an

expert “to sponsor those [records] or to demonstrate the times or locations of any of the

calls, but yet [the records] were still used during . . . cross-examination of [Tagive].” 8 In

response to Appellant’s arguments, the State asserted that because the records were used

solely for impeachment purposes and Tagive admitted to making the calls, it was

unnecessary for the records themselves to be admitted or authenticated by an expert.

Further, regarding the time stamps not matching the local time zone, the State asserted that

the parties at trial “were aware” of the difference in time zones, and “it did not affect the

testimony.” The State contended that “[n]o incorrect times were given before the jury.”

The trial court denied Appellant’s motion for new trial without comment and without

entering any findings of fact or conclusions of law.

Court of Appeals’ Opinion

On direct appeal, Appellant raised six issues, including that the State’s use of

Tagive’s unadmitted phone records to cross-examine Tagive and Reed “created a false

impression with the jury” and thus violated Appellant’s due process rights. 9 The court of

8
We note here that, by the time of his motion for new trial, Appellant was being represented by
new appellate counsel. Counsel indicated to the trial court during the hearing that he did not have
access to the trial record, presumably because the record had not yet been prepared. Thus, counsel
would not have had any knowledge of the exact manner in which the State used the phone records
to impeach Tagive at trial (e.g., actual questions asked and answers given regarding call times /
locations). Counsel’s uncertainty in this regard is reflected in the record from the motion for new
trial.
9
Specifically, Appellant argued that because the phone records had not been admitted into
evidence or properly analyzed by an expert, the State’s suggestion during cross-examination that
the records established the untruthfulness of Tagive’s and Reed’s testimony was wholly
unsupported by any facts and was misleading. See Appellant’s Amended Brief to Court of Appeals
 Ukwuachu - 10

appeals agreed, concluding that the State’s use of Tagive’s phone records amounted to false

evidence that materially affected the outcome of Appellant’s trial. Ukwuachu v. State, No.

10-15-00376-CR, 2019 WL 3047342, at *2 (Tex. App.—Waco July 10, 2019) (mem. op.,

not designated for publication). The court reasoned that “the State referred to the phone

records as though they definitively showed that [Appellant’s] roommate was calling his

friend from across town during the time when the roommate testified he was in the

apartment he shared with [Appellant].” Id. at *2-3. The court also relied upon the affidavit

from Dan James, observing that it “contended that it was impossible to accurately verify

location data solely from the records without additional review by an expert, that the

latitude and longitude on this type [sic] phone records was rarely precisely accurate, and

that it would take many hours for an expert to accurately provide the location of where an

individual was when a call was made.” Id. at *3. Regarding the falsity prong of a false-

evidence claim, the court of appeals concluded,

We find that the State’s repeated references to what the cell phone records
showed, including the location and time of calls made, without their
admission into evidence created a false impression with the jury. Testimony
was elicited from both Ukwuachu’s roommate [Tagive] and Ukwuachu’s
roommate’s friend [Reed] while referencing records that were not in
evidence and in a manner that indicated that the records definitively showed
Ukwuachu’s roommate’s location at certain critical times when they did not.

on Remand, at 20-21 (noting that the phone records “were not introduced into evidence nor
substantiated as to the location of a telephone at the time a call or text was generated;” thus, the
cross-examination of Tagive and Reed “created a false impression with the jury that [Tagive] was
placing a call or text to [Reed] from a location other than his apartment. No such evidence of the
location of [Tagive’s] telephone was ever introduced into evidence during trial.”). The law cited
by Appellant in support of his claim was this Court’s precedent addressing due process violations
stemming from the use of false evidence to procure a conviction. See id. at 25-26 (citing Ex parte
Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014); Ex parte Chavez, 371 S.W.3d 200, 207
(Tex. Crim. App. 2012); Ex parte Ghahremani, 332 S.W.3d 470, 478 (Tex. Crim. App. 2011)).
 Ukwuachu - 11

Id. The court of appeals went on to determine that the false evidence was material, such

that its introduction warranted a new trial. Id. at *3-4.

Following the court of appeals’ decision, we granted the State’s petition for

discretionary review to address a single issue: “Can you have a ‘false testimony’ claim

without testimony or falsity?”

II. Analysis

A false-evidence claim must be supported by facts showing that some evidence was

presented to the jury that was demonstrably false or misleading. Ex parte De La Cruz, 466

S.W.3d 855, 866 (Tex. Crim. App. 2015). In this case, the court of appeals concluded that

the prosecutor’s unobjected-to cross-examination questions which referenced the cell

phone records led to false evidence being presented to the jury. But the record includes

neither the phone records at issue nor any credible expert testimony identifying actual

inconsistencies between those records and the witness testimony presented at trial. Thus,

the court of appeals erred in its holding because there is no proof that the State actually

elicited or presented any false evidence. 10

A. A false-evidence claim requires demonstrably false evidence.

10
We note here that the court of appeals did not consider whether Appellant’s false evidence
complaint was preserved with a timely objection at trial. In at least one prior decision, this Court
has considered the merits of an unpreserved false evidence complaint raised on direct appeal where
the defendant “had no duty to object because he could not reasonably be expected to have known
that the testimony was false at the time that it was made.” Estrada v. State, 313 S.W.3d 274, 288
(Tex. Crim. App. 2010). Although we could plausibly remand this case to the court of appeals for
an analysis of whether preservation requirements were met here, because we find the resolution of
the merits to be more straightforward, we will assume without deciding that the claim was
preserved and address the merits.
 Ukwuachu - 12

The use of material false testimony to procure a conviction violates a defendant’s

due process rights under the Fifth and Fourteenth Amendments to the United States

Constitution. Ex parte De La Cruz, 466 S.W.3d at 866. Therefore, in any claim alleging

the use of material false testimony, a reviewing court must determine: “(1) whether the

testimony was, in fact, false, and, if so, (2) whether the testimony was material.” Ex parte

Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014). Because only the first prong is

at issue in this case, we focus the remainder of our discussion on the matter of falsity.

In examining the requirements for establishing falsity in this context, we have

repeatedly indicated that the proper inquiry is “whether the particular testimony, taken as

a whole, ‘gives the jury a false impression.’” Id. at 666 (quoting Ex parte Chavez, 371

S.W.3d 200, 208 (Tex. Crim. App. 2012)); see also Ex parte Chaney, 563 S.W.3d 239, 263

(Tex. Crim. App. 2018) (“Whether evidence is false turns on whether the jury was left with

a misleading or false impression after considering the evidence in its entirety.”); Ex parte

Ghahremani, 332 S.W.3d 470, 477 (Tex. Crim. App. 2011) (“It is sufficient if the witness’s

testimony gives the trier of fact a false impression.”) (internal quotation marks and citations

omitted). We have observed that the testimony “need not be perjured” and that a witness’s

good or bad faith is irrelevant to establishing falsity. Weinstein, 421 S.W.3d at 666; Chavez,

371 S.W.3d at 208. This is true because a false-evidence due-process claim is “not aimed

at preventing the crime of perjury—which is punishable in its own right—but [is] designed

to ensure that the defendant is convicted and sentenced on truthful testimony.” Weinstein,

421 S.W.3d at 666 (quoting Chavez, 371 S.W.3d at 211 (Womack, J., concurring)).
 Ukwuachu - 13

To prove the falsity prong of a false-evidence claim, the record must contain some

credible evidence that clearly undermines the evidence adduced at trial, thereby

demonstrating that the challenged evidence is, in fact, false. See, e.g., Weinstein, 421

S.W.3d at 666 (finding that mental health records demonstrated that witness gave false

testimony at trial about whether he had ever experienced hallucinations); Chavez, 371

S.W.3d at 208 (concluding that another person’s confession to shooting the victim during

armed robbery demonstrated that witnesses had provided false testimony at defendant’s

trial by identifying him as the shooter); Ghahremani, 332 S.W.3d at 478-79 (determining

that police reports indicating that minor sexual assault victim had been assaulted by others

and had abused drugs demonstrated falsity of parents’ testimony that victim’s need for

intensive mental health treatment was caused solely by defendant’s abuse of victim);

Estrada v. State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010) (taking judicial notice of

prison regulation regarding classification system for incarcerated capital murderers, and

holding that regulation was sufficient to establish falsity of contradictory expert testimony

at trial). Thus, while “various types of evidence . . . may serve to demonstrate the falsity of

evidence introduced at trial,” our cases have been consistent in signaling that to meet the

falsity prong, some “definitive or highly persuasive evidence” is needed to undermine the

truthfulness of the evidence adduced at trial. De La Cruz, 466 S.W.3d at 867.

B. The record fails to establish that Tagive or Reed provided any
false testimony.

The basis for Appellant’s false-evidence claim is that the State misled the jury by

referring to the unadmitted phone records during its cross-examination and argument in a

manner that suggested Tagive and Reed were lying about their whereabouts on the night
 Ukwuachu - 14

of the offense. This type of assertion, while perhaps suggestive of some other type of

complaint, 11 does not fall within the scope of our false-evidence jurisprudence. As

explained above, the law governing the falsity prong of a false-evidence claim requires

both an allegation of falsity of some particular testimony and proof of that falsity with

highly persuasive evidence that undermines the evidence presented at trial. See Weinstein,

421 S.W.3d at 666; De La Cruz, 466 S.W.3d at 867. Here, Appellant has satisfied neither

requirement. He points to no specific testimony from any witness that actually left the jury

with a false impression. Instead he focuses his complaint on the State’s questions and

arguments that were allegedly misleading by suggesting that Tagive and Reed were lying.

Likewise, in its false evidence analysis, the court of appeals also focused on the State’s

questions and arguments about the phone records, rather than identifying any particular

testimony that misled the jury. See Ukwuachu, 2019 WL 3047342, at *2-3 (taking note of

the State’s repeated references to the unadmitted records “as though they definitively

showed” inconsistencies between Tagive’s testimony and his actual whereabouts, and

concluding that such references by the State “created a false impression with the jury”).

11
Of course, a prosecutor’s reference to facts not in evidence in a manner that prejudices the
defense may constitute reversible error. See, e.g., Freeman v. State, 340 S.W.3d 717, 728 (Tex.
Crim. App. 2011) (noting, in the context of improper closing argument, that a prosecutor’s
“[i]mproper references to facts that are neither in evidence nor inferable from the evidence are
generally designed to arouse the passion and prejudice of the jury and, as such, are inappropriate”).
Likewise, improper prosecutorial questioning of witnesses may rise to the level of a due process
violation in some instances. See Greer v. Miller, 483 U.S. 756, 765 (1987) (observing, in context
of claim of improper questioning by prosecutor, that “prosecutorial misconduct may so infect the
trial with unfairness as to make the resulting conviction a denial of due process”). Though it
appears that Appellant’s complaint would fit more neatly within this category of prosecutorial-
misconduct type complaints, we are bound by our procedural rules to consider the complaint that
was actually raised by Appellant and considered by the court of appeals. See TEX. R. APP. P.
38.1(i), 66.3.
 Ukwuachu - 15

But a prosecutor’s questions of a witness and his arguments to the jury are not “evidence”

within the meaning of a false-evidence claim. 12 See, e.g., Coble v. State, 871 S.W.2d 192,

206 (1993) (finding that a jury argument “is not considered evidence”); Barrientez v. State,

487 S.W.2d 97, 101 (Tex. Crim. App. 1972). Given our precedent’s focus on “testimony”

or “evidence” that leaves the jury with a false impression, we cannot sustain a false

evidence claim based solely on an allegation of misleading prosecutorial questioning

absent some identifiable testimony that was problematic.

Even if Appellant had properly focused only on the testimony of Tagive or Reed as

the basis for his false evidence complaint, nothing in this record credibly shows that Tagive

or Reed misinformed the jury on any particular facts. 13 At trial, Tagive and Reed were

both largely unwavering in their testimony. They both maintained they were telling the

truth about the time that they arrived at the apartment, even when faced with aggressive

questioning by the State suggesting that the phone records showed otherwise. Further,

12
At the close of voir dire, the trial court informed the jury that the lawyers’ opening and closing
statements “are not evidence but are made to help you understand the nature of the case and the
evidence that will be presented.” The court then continued, “Your oath states that you will render
a verdict only on the evidence submitted to you under my rulings. The evidence you may consider
will consist of the testimony of witnesses either in person or through written transcripts of their
testimony called depositions. Evidence will also be presented in the form of physical objects of
documents called exhibits.” These statements indicate that the jury was aware that the State’s
assertions and questions to witnesses did not constitute evidence upon which Appellant could
properly be convicted.
13
Appellant’s brief states, “The issue decided in the instant case is a false impression created by
the prosecutor during testimony of Defense witnesses at guilt-innocence. The false impression was
that the prosecutor knew what the non-evidentiary records showed and that the witnesses’
testimony was false. This assertion by the prosecutor was done without any factual basis in the
record.” Appellant’s brief on discretionary review, at 11-12 (emphasis added); see also id. at 14
(describing the issue in this case as “the use of the unadmitted phone records by the prosecutors
by implying that they were evidence of the untruthfulness of the witness[es] Reed and Tagive”).
 Ukwuachu - 16

even if isolated portions of Tagive and Reed’s testimony could be interpreted as agreeing

with the State’s alternative timeline of events based on the phone records, 14 Appellant has

not pointed to any credible evidence showing that the State’s interpretation of the records

was incorrect. We actually have no way of knowing what the phone records show because

they were never admitted into evidence at trial, nor were they made part of the record.

Appellant did not offer those records at the motion for new trial hearing. Because we cannot

know what information the phone records would ultimately reveal, we are precluded from

finding that the State misrepresented the contents of those records during its questioning.

Additionally, Appellant did not present any expert testimony analyzing the State’s

use of the phone records to prove that the State elicited false or misleading testimony from

Tagive and Reed. We have only the affidavit from Dan James, submitted in conjunction

with Appellant’s motion for new trial. But James’s affidavit merely calls into question the

State’s reliance on the cell phone records. It does not establish that any particular false

testimony was elicited. Specifically, James’s affidavit takes note of the difference in time

zones between UTC (which was reflected in the records) and Waco Daylight Savings Time

on the night of the offense. He opines that an adjustment of six hours would be required to

align the time stamps in the records with the local time zone. But James’s affidavit does

not expressly indicate that the State failed to properly account for the difference in time

zones. And the State acknowledged the time zone issue at trial (even though it, as well as

14
For example, at one point during his testimony, Tagive agreed with the State’s assertions that
the records showed he was “across town” making calls to Reed at 1 a.m., which was after the time
he reported arriving at home. In other places, the witnesses conceded, when pressured by the State,
that they were not entirely certain about the timeline of events given the information shown in the
records.
 Ukwuachu - 17

defense counsel, suggested during discussions with the trial court that an adjustment of

only five hours was proper) and claimed that it had made the necessary adjustments. 15 Even

if we were to conclude that the difference between the five-hour and six-hour adjustment

rendered the State’s timeline of events unreliable, we reiterate that the absence of the cell

phone records themselves or any expert testimony identifying actual inconsistencies

between the testimony and the records prevents us from determining falsity. Thus,

Appellant has not identified any “testimony” that meets the requisite definition for falsity

resulting from failure to properly adjust the time zones.

James’s affidavit also generally questions the State’s ability, without the aid of an

expert, to rely on longitude and latitude figures provided in the phone records to pinpoint

Tagive’s location at the time of his calls. James suggests that without the proper training,

such use of the records would be “reckless and without any factual basis.” But the State

asserted at trial that its expert had, in fact, examined the records prior to the State using

them. And, similar to our reasoning above, James does not point to any particular instances

in the record where the State was ultimately mistaken about Tagive’s whereabouts at the

times of the calls. Because James did not perform any detailed review of the records or

compare the records to the State’s assertions or Tagive’s and Reed’s testimony, his

affidavit establishes only that the State’s use of the records could have led to inaccuracies.

15
Although the State and defense counsel at trial discussed a five-hour difference between UTC
and local time, as opposed to the six-hour difference identified by James, it is nevertheless unclear
whether the State’s expert who examined the records and advised the State on the locations and
times of the calls applied a five- or six-hour time adjustment. Thus, it is possible that the State’s
expert also applied the six-hour adjustment and advised the State accordingly. In any event,
because the State’s expert did not testify and the records were not admitted, we again have no way
of knowing whether a five or six hour adjustment was proper or whether the State’s expert correctly
advised it regarding the information shown in the records.
 Ukwuachu - 18

That is not the same thing as establishing that false or misleading testimony was actually

placed before the jury. Therefore, because James’s affidavit merely calls into question the

reliability or accuracy of the State’s methods without refuting any particular assertions or

evidence elicited based on the records, it falls short of establishing that the State’s use of

the records resulted in false testimony. Appellant has presented no other evidence that

could be construed as demonstrating the falsity of any assertions by the State or testimony

resulting therefrom. Accordingly, because the record does not contain any evidence that

persuasively undermines the evidence adduced at trial, Appellant cannot satisfy the falsity

prong of a false-evidence claim. See De La Cruz, 466 S.W.3d at 867.

III. Conclusion

The court of appeals erred by applying false-evidence principles to conclude that

the instant record established that any false or misleading testimony was placed before the

jury. We, therefore, reverse the judgment of the court of appeals granting Appellant a new

trial on that basis, and we remand this case to that court for consideration of Appellant’s

remaining points of error.

Delivered: November 18, 2020
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