United States Court of Appeals,

Fifth Circuit.

No. 91-6258.

R.B. SPRINGER, Petitioner-Appellant,

v.

Lawrence COLEMAN, Director, Harris County Adult Probation Department, RespondentAppellee.

Aug. 23, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, GOLDBERG, and JONES, Circuit Judges.

GOLDBERG, Circuit Judge:

R.B. Springer appeals from the district court's denial o f his petition for a writ of habeas

corpus. Springer, a former Houston police officer, was investigated by a Texas grand jury regarding

allegations of police brutality. Specifically, the grand jury questioned Springer about numerous

complaints that Springer had choked suspects and prisoners in his custody. In the course of the grand

jury pro ceedings, and while Springer was under oath, one of the grand jurors asked Springer t he

f o llo wing question: "Mr. Springer, have you ever physically abused or mistreated a prisoner or

suspect in your custody?" Springer answered: "No sir."

On the basis of Springer's grand jury testimony, Springer was charged with aggravated perjury

and tried in state court. At Springer's bench trial, the state presented eight witnesses who testified

that Sprin g er had choked or otherwise mistreated them while they were in Springer's custody.

Springer was convicted and sentenced to ten years imprisonment, probated on the condition that he

serve 30 days in the Harris County jail.

Springer's conviction was affi rmed on direct appeal by the Texas Fourteenth Court of

Appeals. 721 S.W.2d 510. Springer's subsequent petition for discretionary review was denied by the

Texas Court of Criminal Appeals, as was Springer's application for a state writ of habeas corpus in

the trial court. On appeal of the denial of habeas corpus, a divided panel of the Texas Fourteenth

Court of Appeals again affirmed Springer's conviction.Springer next petitioned the federal district court for a writ of habeas corpus, alleging that his

state perjury conviction violated the Due Process Clause of the Fourteenth Amendment. The district

court rejected appellant's petition and declined to disturb the state perjury conviction, finding that "the

evidence showed the falsity of Springer's response in that numerous witnesses testified to t he

mistreatment that they received while in Springer's custody." We affirm the district court's denial of

Springer's petition for a writ of habeas corpus.

ANALYSIS

Under Texas law, a person commits perjury if the person makes a false statement under oath,

with intent to deceive, and with knowledge of the statement's meaning. Tex.P.C. § 37.02. The term

"statement" means "any representation of fact." Tex.P.C. § 37.01(3). Perjury is aggravated if the

false statement is made during an official proceeding, including a grand jury proceeding. Tex.P.C.

§ 37.03 and § 37.01(2). See Terrell v. State, 801 S.W.2d 544, 547 (Tex.App.1990).

It is the role of the fact-finder to determine whether the defendant understood the question

prop o unded t o him and intentionally lied. U nited States v. Thompson, 637 F.2d 267, 270 (5th

Cir.1981); U

nited States v. Cuesta, 597 F.2d 903, 921 (5th Cir.) cert. den. 444 U.S. 964, 100 S.Ct.

451, 62 L.Ed.2d 377 (1979). The state trial judge, who was the trier of fact in this non-jury trial,

found that Springer understood the question propounded to him, and intentionally lied to the grand

jury. In reviewing a state conviction under a petition for a writ of habeas corpus, "federal courts must

accord a presumption of correctness to any state court factual findings." B arnard v . Collins, 958

F.2d 634, 636 (5th Cir.1992); M iller v. Fenton, 474 U.S. 104, 105, 106 S.Ct. 445, 446, 88 L.Ed.2d

405 (1985); 28 U.S.C. § 2254(d).

Springer does not challenge the state court's factual findings, but instead argues that the

question, "[h]ave you ever physically abused or mistreated a prisoner or suspect in your custody?,"

was so "vague" that as a matter of constitutional law it could not form the basis of a constitutional

conviction. According to the appellant, the state perjury conviction violates the Due Process Clause

of the Fourteenth Amendment because there is no objective standard by which t o determine what

constitutes "physical abuse" or "mistreatment."1 A number of opinions employ an analysis similar to that urged by the appellant in reversing

convictions obtained under the federal perjury statute. In United States v. Bell, 623 F.2d 1132

(5th Cir.1980), the defendant was asked whether he had any of the records requested in a

subpoena. The defendant answered "no," even though his office files indisputably contained such

records. On appeal, the defendant argued that he thought he was being asked whether he had the Appellant's constitutional argument is based on an ana lo gy t o the well established

void-for-vagueness doctrine, under which state convictions obtained under vague statutes have been

found to be in violation of the Due Process Clause. In K olender v. Lawson, 461 U.S. 352, 103 S.Ct.

1855, 75 L.Ed.2d 903 (1983), the Court held that a statute requiring persons to show "credible and

reliable identification" when requested by a police officer was unconstitutionally vague on its face.

See also Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972)

(finding unconstitutionally vague a statute prohibiting inter alia "wandering or strolling around from

place to place without any lawful purpose or object"). "The void-for-vagueness doctrine requires that

a penal statute define the criminal offense with sufficient definiteness that ordinary peopl e can

understand what conduct is prohibited ..." K olender, 461 U.S. a t 357, 103 S.Ct. at 1858. A

conviction may be unconstitutional if it is obtained under a statute so vague that it does not provide

adequate notice of what conduct will be deemed criminal.

Arguing by analogy, the appellant maintains that some questions, like some statutes, may be

so vague that a reasonable person could not be expected to know whether the question propounded

was a question of fact or a question of opinion. If the witness mistakenly interprets a vague question

as o ne asking for an opinion, the witness would not be on notice that the answer to this question

could implicate the laws of perjury. According to Springer, the terms used in the question at issue,

"mistreat" and "abuse," are as vague as the terms "credible and reliable" in the statute struck down

by the Kolender Court. Thus, Springer co ncludes that the question of whether he had ever

"physically abused" or "mistreated" suspects in his custody was too vague to support a conviction

for perjury.

Appellant cites no precedent for the proposition that a state perjury conviction may be found

unconstitutional because the question in respo nse t o which the defendant was found to have

committed perjury was too vague. 1 We have no occasion to decide whether the Due Process Clauserecords with him that day in the court room. Recognizing the "problem that necessarily arises

when an answer would be true on one construction of an arguably ambiguous question but false

on another (citation omitted)," the Bell court reversed the perjury conviction. The court

explained that although the defendant "may very well have known what the government now says

it was seeking, ... the evidence does not establish that fact. "Defendants may not be assumed into

the penitentiary.' " Id. at 1137 (citation omitted).

Similarly, a federal perjury conviction on the basis of an ambiguous question was

reversed in United States v. Wall, 371 F.2d 398 (6th Cir.1967). Defendant Wall was

convicted of perjury on the basis of her testimony before a grand jury. Wall was asked

whether she had "been on trips with Mr. X," and she answered "I have not." Wall was

convicted of perjury after the government showed that in fact, Wall, who lived in

Oklahoma City, was seen with Mr. X in Miami. The Sixth Circuit reversed, finding that

the question propounded to Wall was susceptible to two interpretations. The question of

whether a person had been on trips with another could either mean "[t]hat a person

accompanied somebody else traveling with, or it can mean that they were there at a

particular place with a person." Id. at 399. There was no evidence that Wall accompanied

X on any trip to Miami, but there was evidence that Wall spent time in Miami with X. As

the question was readily open to two plausible interpretations, the Sixth Circuit held that

"no charge of perjury can be based upon an answer to such a question." Id. at 400. The

court explained that when "the question propounded admits of several plausible meanings,

the defendant's belief cannot be adequately tested if it is necessary to determine what the

question meant to him when he gave the disputed answer." Id. See also United States v.

Lattimore, 112 F.Supp. 507, 516 (D.D.C.1953) affd. in part and revd. in part 215 F.2d

847 (D.C.Cir.1954); O'Connor v. United States, 240 F.2d 404, 405 (D.C.Cir.1956).

2 Q: Have you ever, with any prisoner in your custody, choked that prisoner?

A: No, sir.

3 Q: Have you choked them or struck them in any fashion after they were in custody in the

police station? prohibits perjury convictions obtained with vague questions because we find that the question

propounded to Springer was not vague.

In view of the entire grand jury record, the question propounded to Springer, i.e., whether

he had physically abused or mistreated suspects in his custody, simply asked Springer whether he had

treated suspects in a way that caused them physical injury, such as choking them. Springer's answer,

"No Sir," was a reiteration of Springer's repeated denials of choking suspects in his custody. In the

course of the grand jury investigation Springer admit t ed t hat he had used choke holds while

attempting to apprehend violent suspects. However, in answering further questions, Springer

categorically denied choking persons in S p ringer's custody; whether they were prisoners, 2 or

suspects in his custody at the police station. 3 Springer also specifically denied choking several namedA: I would have to say "no' sir.

persons that were in his custody, including Mr. Phillips, and Mr. Vackar. It was after denying that

he had choked suspects in his custody, such as Mr. Phillips, that Springer was asked the more general

question: "Mr. Springer, have you ever physically abused or mistreated a prisoner or suspect i n your

custody? " In proper context, Springer's answer to this question, denying that he physically abused

or mistreated persons in his custody, is merely a generalized restatement of his more specific claim

that he never choked suspects such as Phillips, and Vackar. We agree with the Texas appellate court

that in this c o nt ext "the words "abuse' and "mistreatment' connote physical or mental injury."

Choking a person, stopping the breath of a person by squeezing or obstructing the windpipe, is a form

of physical abuse and mistreatment.

Contra ry t o Springer's general and specific denials of choking Phillips, Vackar, and other

persons in his custody, the state's witnesses at tri al est ablished that Springer had in fact choked

Phillips, Vackar, and others. There was ample evidence for the state t rial court t o conclude that

Springer's denial of such choking, or other forms of physical abuse, was an intentional lie. In sum,

when put in the context of the entire grand jury proceedings, the question propounded to Springer

was not vague, and his perjury conviction was not fundamentally unfair or otherwise in violation of

the constitution.

In addition to the void-for-vagueness argument, Springer cla ims that his state perjury

conviction was invalid because the grand juror's question called for an opinion, not a representation

of fact as required by Tex.P.C. § 37.01(3). The Texas state courts, applying Texas law, held that the

question at issue called for a statement of fact. As a Federal Court we may find that the state court's

application of state perjury law violates due process, but we may not interfere with the state court's

application of state law. S mith v. McCotter, 786 F.2d 697, 700 (5th Cir.1986) ("We do not sit as a

"super' state supreme court. (citation omitted) Consequently, we decide the following issues only

to the extent that federal constitutional issues are implicated and we refuse to act as an arm of the

Texas Court of Criminal Appeals"). As the district court correct ly held, this court holds no

supervisory power over state judicial proceedings and may intervene only to correct errors ofconstitutional dimensions. S mith v. Phillips, 455 U.S. U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d

78 (1982).

CONCLUSION

For the foregoing reasons, the decision of the district court is AFFIRMED.