SFLawyer said on December 17, 2008  

I think the more obvious weakness is "knowing that an investigation or official proceeding is pending or in progress."

Lumping in the ongoing war on drugs, or some sort of local drug task force or something (as you intimated in the other post) as one constant "investigation" to make section a) actionable is questionable. Your case law doesn't support this. I know neither you nor I are Texas lawyers, but just based on the cases you cited, in both instances there was an investigation underway of an alleged crime, even if no crime had actually occured. (Either sexual abuse or multiple crimes needing search warrants).

Here, there was no current investigation of a specific crime at the time the false "thing," whether the false tip or the innocuous grow room, occurred.

If I was in Court arguing this, (with no time to prep and off the top of my head, like right now) I would throw in the argument that section a, in this instance, would operate to make section d meaningless. The statute creates a distinction between pre and post investigation; if police activity generally related to the type of crime can substitute for investigating the specific crime (like having an investigative drug task force, not investigating this grow house specifically) then almost every false act can be prosecuted under a) and not d) so long as there was some sort of police intent to actively investigate that "type" of crime. Such a broad stroke seems kind of absurd.

 Anonymous said on December 17, 2008  

"In Waldrop v. the State, 2007 (no. 06-06-00073-CR, Court of Appeals of Texas, Texarkana), a woman was convicted of feeding her children a story about their father sexually abusing them and then having them repeat the story while she recorded them. The children told the police what their mother made them do and the story was proven false. No underlying offense here. Father didn't do anything. Mom's crime was the making and presenting of the false evidence. There was no crime until she did this and violated 37.09."


There IS an intent to break the law. The mother is trying to create a false arrest.


"In Delapaz v. the State, 2007 (no. 05-05-00660-CR, Court of Appeals of Texas, Dallas), a police officer was convicted under 37.09 because he made false statements on affidavits to get search warrants. Again, there is no commission of a crime prior to the officer making and presenting the false affidavits."

There IS a criminal offense at work here. The officer was trying to create a false arrest.

In both cases, the false evidence was created in service to an overlying criminal act - creating a false arrest.

Your fantasy still fails the test.

 Ken Lammers said on December 17, 2008  

SFLawyer - Yes, I think your reading of the statute is correct and concede this is the point I would expect to be the Defense's strongest argument in court.

 Ken Lammers said on December 17, 2008  

Anon - You are absolutely right about what their intents are, however, there is no actual criminal act committed until they make and present the false evidence.

 Mhoram said on December 18, 2008  

But it isn't false evidence in this case. The evidence they set up is in fact real evidence - it just isn't evidence of a crime.

Take an analogous situation: Police are driving around and they see a woman sitting the porch of a house and she has a busted lip and a black eye. Do they have probable cause to arrest the guy sitting next to her? Her injuries are evidence of nothing more than their own existence - they certainly are not evidence that a crime has been committed.

To make even more like the issue at hand, suppose the injuries were not even real - they had been applied with makeup. Would you really want to charge her with false report of a crime? If so, would Virginia juries actually convict someone of that?