COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-161-CR
CAROLIN HIGHT TEAGUE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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OPINION
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Appellant Carolin Hight Teague was charged by indictment with
tampering with a governmental record and aggravated perjury. The jury
acquitted Appellant of tampering with a governmental record and convicted her
of aggravated perjury. The trial court sentenced her to ten years’ confinement
in the Institutional Division of the Texas Department of Criminal Justice and a
$5,000 fine. The trial judge suspended imposition of confinement and placed
her on community supervision for ten years.
Appellant brings seven issues on appeal, arguing that the evidence is
legally and factually insufficient to support the verdict and that the trial court
erred by admitting inadmissible hearsay and instructing the jury on materiality.
For the reasons stated below, we affirm the trial court’s judgment.
S TATEMENT OF F ACTS
On November 23, 2002, Gayla Beth Dodson was working as a dispatcher
for the Young County Sheriff's Department, which provides dispatch services
to the Graham Police Department. Graham police officer Michael Viehmann,
who worked the 3:00 p.m.–11:00 p.m. shift, attempted to contact the
dispatcher several times while on patrol. Dodson responded slowly initially and
eventually did not respond at all. After Viehmann told another officer over the
radio that dispatch was not responding to him, Dodson immediately told
Viehmann to come into the Young County Sheriff's office. Viehmann had been
talked to by his supervisor in the past about having problems with other
dispatchers, so he had turned on his car's video and audio recording system
before talking to Dodson.
At dispatch, Dodson confronted Viehmann about what he had said over
the radio. Viehmann called his supervisor, Assistant Chief Tony Widner, and
2
told him about the problem. Dodson also spoke with Widner at that time. The
911 system was set up to record all radio traffic in addition to incoming 911
calls, and both Viehmann and Widner requested a copy of the radio traffic
recording from that evening.
Widner started an internal affairs investigation the next working day in
response to the incident. In the course of that investigation, Viehmann made
a written statement and turned over the recording that he had made. As for the
911 tape, Widner declined to go to dispatch and listen to the original dispatch
tape there; he instead again requested a copy. At some point when he called
the sheriff’s office for a copy, he heard Dodson in the background say, “If he
wants to listen to the tape, he can come over here and listen to it.” When
Widner did not receive any tape from Dodson, he called to ask Sheriff Pettus
about getting a copy of the tape; he was told by dispatcher Teresa McGehee
that the copy had been made and that the sheriff had it. Pettus personally
handed the tape to Widner.
The tape was about two or three minutes long and did not include all the
traffic stops that were recorded on Viehmann’s in-car camera. After discussing
the tape with his chief, Jim Nance, Widner asked Pettus to watch Viehmann’s
videotape. At trial, Widner testified that after seeing and listening to the tape,
Pettus stated, “I guess I didn’t get the whole story,” and “I guess I have been
3
lied to.” The internal affairs investigation into Viehmann’s conduct was closed.
The tape used by Viehmann was put back into rotation to be re-used.
In 2004, Viehmann discussed the events with Texas Ranger Aaron
Dwayne Williams while the two were having lunch. Williams then began an
investigation into the incident. He presented his findings to the Young County
grand jury. The grand jury heard testimony from Richard Ferguson, a Graham
police officer, that he had heard the radio conversations between Dodson and
Viehmann, and that a couple of days later, he saw Dodson and Appellant at
dispatch with a tape recorder hooked up to the 911 system, taping an edited
copy of what was playing on the system. Ferguson recognized what he heard
as the events of November 23. Ferguson gave this same testimony at trial.
The tape used by Viehmann was turned over to Williams, but by then it
had already been taped over. In February 2003, the 911 system had been
replaced, and the old system had been put into a storage room. In April 2004,
Jan Hammond, the IT administrator for Young County, was asked to locate the
old system and the tapes that had been used with it. She found the machine
in Chief Deputy Gary Barnett’s office on the floor. The top had been taken off
of the machine, and it looked to Hammond as though it had been pried off.
Hammond found the tapes on a shelf in the storage room. That machine
recorded on two tapes simultaneously—an “A” tape and a “B” tape. The “A”
4
tape from November 2002 had “bad” written on it and had been erased. The
“B” tape was turned over to Williams.
Dodson testified to the grand jury that on the night of the confrontation
with Viehmann, she called Appellant, another employee of the Young County
Sheriff’s office, because she was upset, and Appellant cam e to the station.
Dodson further testified that she did not remember anyone asking for a copy of
a tape, if anyone had asked her to make a tape, she would have asked someone
else to do it because she did not know how to make a copy, she did not make
a copy of a tape and did not remember assisting anyone to do so, and she did
not know who made the tape. She also stated that she did not erase the
original 911 tape and did not know who did. Her grand jury testimony was
read to the jury at trial.
Appellant testified to the grand jury that on November 23, 2002, she was
assigned to the patrol division but was not working that day. After receiving
a call from Dodson that night, she ran dispatch for Dodson, who was upset.
Appellant testified that she did not make the recording, did not assist in making
the recording, and was not present when it was made. She testified that she
would not call Ferguson a liar, that "[i]f he said he saw [her] making [the tape],
then evidently [she] was," but she did not remember making the tape. She also
5
stated that she did not erase the original 911 tape. Her grand jury testimony
was read to the jury at trial.
At trial, four people who had worked with Ferguson, including Ferguson's
supervisor, testified that Ferguson's reputation in the community for truth and
veracity was bad.
L EGAL S UFFICIENCY OF THE E VIDENCE U NDER A RTICLE 38.18
Appellant argues in her second issue that the evidence is legally
insufficient under article 38.18 of the code of criminal procedure to support the
verdict. Article 38.18(a) provides that “[n]o person may be convicted of perjury
or aggravated perjury if proof that [her] statement is false rests solely upon the
testimony of one witness other than the defendant.” 1 Appellant argues that
article 38.18 is controlled by article 38.17, which provides, “In all cases where,
by law, two witnesses, or one with corroborating circumstances, are required
to authorize a conviction, if the requirement be not fulfilled, the court shall
instruct the jury to render a verdict of acquittal, and they are bound by the
instruction.” 2 The State argues that article 38.18 is merely “a statutorily
imposed sufficiency review and is not derived from federal or state
1
… T EX. C ODE C RIM. P ROC. A NN. art. 38.18(a) (Vernon 2005).
2
… See id. art. 38.17.
6
constitutional principles that define the legal and factual sufficiency standards,”
much like the accomplice witness rule.3 The State is only partially correct. The
accomplice witness rule specifically states that in addition to an accomplice
witness’s testimony, there must be evidence tending to connect the defendant
to the offense.4 The accomplice witness rule is not a true sufficiency test; it
merely instructs in the determination of sufficiency. That is, the accomplice
witness’s testimony must be disregarded in determining whether there is other
evidence tending to connect the defendant to the offense. 5 The additional
evidence does not have to be legally or factually sufficient to sustain the
conviction.6 It need only tend to connect the defendant to the offense. 7
Article 38.18 is slightly different. It instructs that there must be more
than a single witness’s testimony. To sustain a conviction for perjury or
aggravated perjury, the State must produce more evidence than the testimony
3
… Cathey v. State, 992 S.W.2d 460, 462–63 (Tex. Crim. App. 1999),
cert. denied, 528 U.S. 1082 (2000).
4
… T EX. C ODE C RIM. P ROC. A NN. art. 38.14 (Vernon 2005).
5
… Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001).
6
… Id.
7
… Id.
7
of the defendant and another witness.8 But there is no corroboration
requirement.9
The State produced the testimony of Richard Ferguson. In addition, as
the State points out, it offered Appellant’s grand jury testimony, and that of
Dodson, “including their vacillating and implausible testimony and sudden loss
of memory after being confronted with the fact that Ferguson claimed to have
seen them making the record, which the grand jurors themselves apparently
found to be incredible.” The State also points to testimony from multiple
witnesses that Dodson and Appellant were together in the dispatch office that
Saturday night after Widner had requested a copy of the 911 tape, as well as
evidence from the B tape that Widner had made the request and that Dodson
had told the sheriff about it.
Additionally, the State relies on testimony that both Appellant and
Dodson attempted to shift the blame to another dispatcher and testimony
regarding the B tape and its contents that proved that Dodson had testified
untruthfully about other aspects of the night’s events. The State also directs
8
… T EX. C ODE C RIM. P ROC. A NN. art. 38.18.
9
… See id.; see also Martin v. State, 13 S.W.3d 133, 140 (Tex.
App.—Dallas 2000, no pet.); Tamayo v. State, 924 S.W.2d 213, 216 n.1 (Tex.
App.—Beaumont 1996, no pet.).
8
us to testimony from Ranger Williams and from the defense expert that
corroborated the background voices on the tape, one of which Williams testified
he recognized as Ferguson’s. The State also points to testimony from multiple
witnesses that Dodson was essentially the instigator of the initial dispute and
had motive to alter the tape to make herself look better and shift blame to
Viehmann, Appellant was Dodson’s good friend, the two of them had the
opportunity to make the cassette tape that Saturday night, and the tape
appeared in the sheriff’s office on Monday morning.
The State argues that the jury was able to consider the entirety of the
evidence and compare Appellant’s and Dodson’s testimony and their similar
losses of memory, their demeanor, and their grand jury testimony. We hold
that the evidence recited above is sufficient to satisfy article 38.18. We
therefore overrule Appellant’s second issue.
S UFFICIENCY OF THE E VIDENCE OF INTENT TO D ECEIVE
In her third issue, Appellant contends that the evidence is legally
insufficient to support the verdict. In her fourth issue, she contends that the
evidence is factually insufficient to support the verdict. Specifically, Appellant
contends that the evidence is legally and factually insufficient to show that she
had the intent to deceive. Section 37.03 of the penal code provides,
(a) A person commits an offense, [aggravated perjury], if he
9
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.10
Section 37.02 provides,
(a) A person commits an offense 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. 11
Dodson testified that she did not make the tape, she did not know how
to use the equipment, she knew nothing about the original 911 tape being
erased, she had told the sheriff that she did not remember making a copy of the
911 tape, and if she had anything to do with making a copy of the tape, she
did not remember it. She also testified that she could not dispute Ferguson’s
testimony that he saw her with Appellant making the tape because she did not
remember it. Dodson denied telling the sheriff that Widner had asked for a
copy of the 911 tape, but she admitted that if the tape showed that she had
done so, then it did in fact happen. When asked if she had ever listened to the
10
… T EX. P ENAL C ODE A NN. § 37.03 (Vernon 2003).
11
… Id. § 37.02.
10
real 911 tape after the night in question, or on that night, Dodson responded,
“Not that I know of.” When the prosecutor admonished her that false
testimony could lead to an aggravated perjury charge and explained to her the
defense of retraction, she stated, “I do not remember making that tape with
[Appellant]. I did not make the tape by myself. I called the sheriff to tell him
that I threw a fit.”
Appellant testified that, “[I]f you have my name and initials on that tape
then I probably did [assist in making the tape]. I don’t remember making it is
what I’m telling you.” She also explained that she did not think that any of that
was important at the time. Finally, when a grand juror asked her if she had
heard Dodson telling Sheriff Pettus that night that Widner had requested a copy
of the tape, Appellant stated, “She did? Okay. Then maybe she made it that
night.”
Marsha Sumpter, the 911 coordinator for Young County, testified that
Dodson was the person who had a fight with Viehmann and that both she and
Appellant knew how to operate the logger machine. Sumpter listened to the
November 25, 2002, transmissions and heard Widner call in and ask for taped
copies again. She also heard Teresa McGehee call back about ten minutes later
and tell Widner that the tape had been made. Sumpter testified that you should
not be able to copy a tape of twenty-eight minutes of activity in ten minutes.
11
The defense expert forensic tape examiner, Al Yonovitz, opined that he
did not believe that the tape had been maliciously changed. He did agree,
however, that State’s exhibit 1A, the cassette tape, did not reflect everything
in the 911 transmissions for November 23, 2002, from 5:30-6:00 p.m. and
again from 6:27-6:30 p.m.
As the State points out, in a prosecution for aggravated perjury, intent to
deceive may be inferred from the circumstances.12 The State argues that the
jury could consider Appellant’s grand jury testimony in light of all the other
evidence including their knowledge of her background as an officer and the
likelihood that she had testified before. They were free to take into account the
fact that she did not experience memory problems until Ferguson was discussed
as an eyewitness. They were also free to consider as suspicious her repeated
assertions that her name would be written on the tape had she recorded it and
her reaction of “sudden and selective memory loss” to the news that Ferguson
had implicated her, which was strangely similar to Dodson’s sudden and
selective memory loss.
Applying the proper standards of review,13 we hold the evidence legally
12
… Bodmer v. State, 161 S.W.3d 9, 12 (Tex. App.—Houston [14th Dist.]
2004, no pet.).
13
… See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
12
and factually sufficient to prove Appellant’s intent to deceive. We overrule
Appellant’s third and fourth issues.
D EFENSE OF R ETRACTION
In her fifth and sixth issues, Appellant argues that the evidence is legally
and factually insufficient to disprove the defense of retraction. Section 37.05
of the penal code provides,
It is a defense to prosecution under Section 37.03 (Aggravated
Perjury) that the actor retracted his false statement:
(1) before completion of the testimony at the official
proceeding; and
(2) before it became manifest that the falsity of the
statement would be exposed.14
When interpreting a statute, we look to the literal text for its meaning, and we
ordinarily give effect to that plain meaning.15 The only exceptions to this rule
are where application of the statute's plain language would lead to absurd
consequences that the Texas Legislature could not possibly have intended, or
(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (both
providing legal sufficiency standard of review); Watson v. State, 204 S.W.3d
404, 414 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799
(Tex. Crim. App. 2005); Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App.
2003); Johnson, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (all providing factual
sufficiency standard of review).
14
… T EX. P ENAL C ODE A NN. § 37.05 (Vernon 2003).
15
… Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
13
if the plain language is ambiguous. 16
The plain language of this statute required Appellant to retract the
statement before the completion of her testimony and before it became
manifest that the falsity of the statement would be exposed.17 Retract means
to draw back, take back, withdraw, disavow, or recant.18 We have carefully
examined the record and find no place in which Appellant retracted the
testimony at issue; a lack of recollection is not a retraction. Applying the
proper standards of review for legal 19 and factual20 sufficiency of the evidence
disproving the defense, we hold that the evidence is legally and factually
sufficient to disprove the defense of retraction. We overrule Appellant’s fifth
and sixth issues.
A DMISSIBILITY OF H EARSAY
In her first issue, Appellant argues that the trial court erred in admitting
over objection a hearsay statement of Sheriff Pettus, who did not testify at
16
… Id.
17
… T EX. P ENAL C ODE A NN. § 37.05.
18
… M ERRIAM-W EBSTER O NLINE D ICTIONARY 2008, http://www.merriam-
webster.com/dictionary/retract (last visited August 21, 2008).
19
… See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003);
Saxton v. State, 804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991).
20
… See Watson, 204 S.W.3d at 414; Zuliani, 97 S.W.3d at 595.
14
trial. We have carefully examined the record. Assistant Chief Widner and Jim
Nance were allowed to testify over Appellant’s hearsay objection that, at the
meeting they had with Sheriff Pettus, after listening to the cassette tape, Pettus
stated, “I guess I’ve been lied to.” As Appellant argues, the statement is
clearly hearsay. The State conceded at trial that the statement was hearsay by
offering it as an exception to the prohibition against hearsay evidence. The
State offered the statement as a present sense impression, evidence of then
existing mental or emotional state, and an excited utterance. 21
The statement satisfies none of those exceptions. The State argues that
Appellant failed to preserve this complaint. Appellant did not object after the
first time the statement was offered. Instead, she objected earlier, in the
middle of the statement. The witness testified that the sheriff said, “I guess I
didn’t get the whole story. I guess—.” Appellant objected on hearsay grounds,
her objection was overruled, and she requested a limiting instruction.
Afterward, the rest of the statement came in without additional objection.
Under the facts of this case, we hold that the objection made mid-sentence also
applied to the rest of the statement that was admitted after the objection.
Appellant also timely objected the second time the statement was made.
21
… See T EX. R. E VID. 803(1), (2), (3).
15
But Appellant did not object to the third mention of the statement. Because
Appellant did not object to the third admission of the statement, she has not
preserved error. 22 We overrule Appellant’s first issue.
C HARGE E RROR
In her seventh issue, Appellant contends that the trial court improperly
instructed the jury that the statement in question, if any, made by Appellant,
if it was made, would be material. Appellant argues that because materiality
is an element of the offense, 23 an instruction that the statement in question was
material instructed the jury on an element to be determined by the jury and that
the instruction therefore violated Appellant’s right to due process under the
Constitution of the United States. We note that section 37.04(c) of the penal
code provides that materiality is a question of law. 24 But, as Appellant points
out, the United States Supreme Court has held that whether a statement is
material must be submitted to the jury.25
22
… See Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.), cert.
denied, 528 U.S. 1026 (1999); Leday v. State, 983 S.W.2d 713, 718 (Tex.
Crim. App. 1998); Ethington v. State, 819 S.W.2d 854, 858–59 (Tex. Crim.
App. 1991).
23
… See T EX. P ENAL C ODE A NN. § 37.04 (Vernon 2003).
24
… Id. § 37.04(c).
25
… United States v. Gaudin, 515 U.S. 506, 522–23, 115 S. Ct. 2310,
2320 (1995) (holding refusal to submit issue of materiality to jury
16
The case before this court is distinguishable in part from Gaudin because
Appellant’s jury was instructed in the application paragraph that it must
determine the materiality of the statement. But the jury was also instructed
that the statement under consideration was, in fact, material and that the only
issue was whether Appellant had made the statement. We therefore hold that
the charge was erroneous.
Appellant timely objected to this error, so we must determine whether
Appellant suffered any harm from the improper instruction. 2 6 A properly
preserved error will require reversal as long as the error is not harmless.27 In
making this determination, “the actual degree of harm must be assayed in light
of the entire jury charge, the state of the evidence, including the contested
issues and weight of probative evidence, the argument of counsel and any other
relevant information revealed by the record of the trial as a whole.” 28
Appellant argues that reversal is mandated by the Fifth Circuit decision
unconstitutional); see also Ward v. State, 938 S.W.2d 525, 530 (Tex.
App.—Texarkana 1997, pet. ref'd) (noting that section 37.04(c) is most likely
not good law after Gaudin).
26
… See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)
(op. on reh’g).
27
… Id.
28
… Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App.
2000).
17
in U.S. v. Pettigrew. 29 Pettigrew addressed the complete withholding of the
issue of materiality from the jury, resulting in the jury’s rendering no verdict as
to that element of the offense. 30 In the case now before this court, however,
the jury did render a verdict as to the materiality element. But the jury was
instructed to render that verdict if they found Appellant had made the
statement in question.
The State argues that materiality was never an issue in the case.
Materiality was unchallenged and uncontested. Based on our review of the
record, we agree. Because materiality was never an issue in this case, we hold,
under the limited and unique facts of this case, that Appellant suffered no harm
from the erroneous instruction. Accordingly, we overrule Appellant’s seventh
issue.
C ONCLUSION
Having overruled Appellant’s seven issues, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: CAYCE, C.J.; DAUPHINOT and MCCOY, JJ.
CAYCE, C.J. concurs without opinion.
29
… 77 F.3d 1500 (5th Cir. 1996).
30
… Id. at 1511.
18
PUBLISH
DELIVERED: August 21, 2008
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