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Opinion filed June 7, 2007
In The
Eleventh Court of Appeals
____________
No. 11-05-00234-CR
__________
PETER HELLMUTH EGGERT, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CR 12121
O P I N I O N
The jury convicted Peter Hellmuth Eggert of conspiracy to fabricate physical evidence, and the trial court sentenced him to two years confinement, probated for five years, and a fine of $5,000. We affirm.
I. Background Facts
Peter Eggert and his son Mikel Peter Eggert were indicted for conspiracy to fabricate physical evidence by making, presenting, or using the purported affidavits of Kim Whiteley or M.W. with the knowledge that they were false and with the intent to affect an appeal pending in this court. The indictments were consolidated, and Peter and Mikel were tried together. The jury found both guilty, and the trial court assessed punishment at two years confinement and a $5,000 fine. The trial court probated the term of confinement for five years but not the fine.
II. Issues
Peter challenges his conviction with nine issues. These can be grouped into four areas:
$ sufficiency of the evidence;
$ charge error;
$ ineffective assistance of counsel; and
$ Peter=s motion for new trial.
III. Analysis
A. Was the Evidence Legally and Factually Sufficient?
Peter=s first three issues challenge the sufficiency of the evidence to support the jury=s guilty verdict. Specifically, Peter contends the evidence was insufficient because the affidavits were work product and the statute contains a work-product exception, the affidavits could not have altered the underlying proceedings, and he did not know the affidavits were false at the time he prepared them.
In reviewing claims of legal sufficiency of the evidence, we review all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). Due deference must be given to the fact‑finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996).
To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson, 23 S.W.3d at 10-11; Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 129. Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.
1. Work Product.
Tex. Pen. Code Ann. ' 37.09 (Vernon 2003) prohibits tampering with or fabricating physical evidence, but the statute does not apply Aif the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.@ Section 37.09(b). Peter argues that the Whiteley affidavits were work product, that the statutory exception applies, and that the evidence was, therefore, legally insufficient.
Section 37.09 proscribes several different methods of tampering with or fabricating physical evidence, but the work-product exception by its terms only applies to records, documents, or things concealed. See Cuadra v. State, 715 S.W.2d 723, 724 (Tex. App.CHouston [14th Dist.] 1986, pet. ref=d) (the work-product exception applies only to concealed documents). Peter was indicted for conspiracy to make, present, or use false affidavits. The exception is inapplicable, and issue one is overruled.
2. Legal Impossibility.
Peter next argues that the evidence was legally or factually insufficient to establish his intent to affect the Gallardo appeal[1] because the Whiteley affidavits could not have been considered by this court. The State responds that consideration of the Whiteley affidavits by this court was not legally impossible and that the language of Section 37.09 makes this immaterial because the State was not required to prove that the affidavits would or could have affected the outcome of the Gallardo appeal.
We agree with the State. Section 37.09 required the State to prove that Peter conspired to make, present, or use a document knowing that it was false and with the intent to affect the course or outcome of the Gallardo appeal. The statute is silent on any requirement that the State prove the attempt would have succeeded, and we have found no case recognizing or imputing such a requirement. Moreover, we believe such a requirement is inconsistent with the statute=s plain intent. Our judicial system necessarily relies upon a baseline belief in the sanctity of the process. Any attempt to use fabricated evidence B regardless of the ultimate success of that attempt B is completely inconsistent with not only the administration of justice but with the integrity of the process. The statute recognizes this by outlawing a wide range of activities whose mere presence could undermine confidence in the judicial system. It would make no sense to say that an attempt to make, present, or use fabricated evidence is any less culpable merely because the attempt was poorly conceived. The State was not required to prove that this court could have considered the Whiteley affidavits or that those affidavits would have affected the outcome of the Gallardo appeal. The State was merely required to prove that Peter intended to affect the outcome of the Gallardo appeal. Peter=s second and third issues are overruled.
3. Knowledge of the Affidavits= Falsity.
Peter next argues that the evidence was legally and factually insufficient to establish intent because he was not advised that the affidavits were untruthful until after they had been prepared. When all the evidence is viewed in the light most favorable to the verdict, a rational trier of fact could have found the requisite intent beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19. Peter knew that Gallardo was guilty of the underlying offense and, thus, knew that any affidavit asserting the crime did not take place was untruthful. However, Peter proceeded nonetheless. For this same reason, when the evidence is viewed in a neutral light, the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the verdict against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d 414-15.
Peter and his son were representing Gallardo in his deportation proceedings. Their efforts appeared unsuccessful, and they met with Assistant District Attorney Jason Cashon to discuss having Gallardo=s criminal conviction set aside. Cashon advised them that this could only occur if there was a finding of actual innocence. Gallardo had been indicted for aggravated sexual assault and indecency with a child. Gallardo signed a stipulation of evidence and pleaded guilty to indecency with a child by exposure, and that judgment became final. Subsequently, the Immigration and Naturalization Service detained Gallardo, who was on probation, for deportation based on the conviction. Cashon later discussed with them a potential writ of habeas corpus. Because neither Peter nor his son were licensed to practice law in Texas state courts, Mikel Eggert asked Joe Lopez, a law school friend, to help. A petition for writ of habeas corpus was filed, but the trial court denied that petition and found that it was frivolous and groundless. On February 13, 2004, Gallardo appealed that denial to this court.
Peter met with Lee Roy Gaitan, a former chief of police of Dublin. He told Gaitan that he was representing some people in an immigration matter, he described the Gallardo litigation, and he asked Gaitan if he would be interested in helping Gallardo. Specifically, he asked Gaitan to sign a document that he could use with the Board of Pardons and Parole and to help get documents to Kim and M.W. Gallardo had been convicted of indecency with a child by exposure; the victim was Kim Whiteley=s daughter, M.W. Peter told Gaitan that Gallardo had done wrong, that he was not disputing that, but that he was preparing something where Gallardo could possibly serve prison time to prevent the deportation. Gaitan signed the statement without thoroughly reading it. When he subsequently did read that statement, he realized that it contained false information.
On March 22, 2004, Peter gave Gaitan a folder with papers and told him to have Kim sign the papers in front of a notary and then to give the papers back to him. Subsequently, Peter started calling Gaitan every day to check on his progress. Gaitan met with Kim on March 31, 2004. By then, Gaitan realized that the documents Peter wanted Kim to sign were false. He did not give the documents to her but threw them in the trash and told her that Peter was trying to contact her. Kim gave Gaitan permission to provide Peter with her phone number.
Peter called Kim and asked her to meet with him to discuss the Gallardo case. She agreed to do so and went to his office. He asked her if she remembered what had happened to her daughter. When she began to describe the incident, he became upset and told her that he did not want to hear what happened and that he just wanted to get the matter fixed. He gave her an affidavit for herself and her daughter and asked her to read them and have them signed and notarized. Peter gave her $20 for gas. He told her that, if she and her daughter signed the papers, he would give her anything she wanted and that, if she needed more money, it was available.
Kim read the affidavits. Neither was truthful. The following day, Kim told Peter that she did not feel that he was being truthful, that she did not want to talk to her daughter about it, and that she wanted to drop the whole thing. She told Peter that she did not want him bothering her anymore. Peter told her that he would continue to call until she talked to her daughter.
On April 3, 2004, Peter called Kim again. He asked her to bring her daughter to Stephenville and told her that he really needed to talk to them and that he would continue to call her until she brought her daughter to meet him. That same day, Peter spoke with Gaitan and told him that he thought Kim was getting cold feet and that he wanted Gaitan to meet with her. After visiting with her attorney, Kim ultimately turned the documents over to the local Texas Ranger who investigated the matter.
This evidence is sufficient to support the jury=s finding. There was evidence that Peter knew from the beginning that Gallardo was guilty but that his sole intent was to prevent the deportation by whatever means necessary. Peter acknowledged to Gaitan that Gallardo had done wrong, and when Kim began relating what had happened, he told her that he was not interested in the facts. However, the statement he provided to Gaitan and the affidavits he prepared for Kim and her daughter were fundamentally inconsistent with Gallardo=s guilt. Moreover, there was evidence that, after Kim specifically told Peter that the affidavits were untruthful, he continued to pressure her.
The evidence also establishes that the affidavits were intended for use with this court. On April 5, 2004, Gallardo filed a motion to extend the time for filing his brief with this court. That motion included the following statement:
Appellant=s counsel has recently discovered new evidence which controverts the State=s original allegations. Appellant needs additional time to file his brief in order to document such new evidence.
The only evidence of Anew evidence@ is the proposed Whiteley affidavits. Furthermore, the motion indicates additional time was needed to Adocument@ the new evidence. Peter was then actively involved in obtaining signatures on the Whiteley affidavits. There was no evidence of any other efforts to document new evidence. This evidence is legally and factually sufficient to support the jury=s verdict. Issues four and five are overruled.
B. Charge Error.
Peter argues that the trial court erred by refusing to submit an instruction on the work-product defense or, alternatively, that his trial counsel was ineffective if this issue was not properly preserved. When analyzing a jury‑charge issue, we must first decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If so, we analyze that error for harm. The degree of harm necessary depends upon whether the error was preserved by objection. If the defendant properly objected to the charge, some harm requires reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If the defendant did not object to the charge, reversal is not required unless the record shows egregious harm to the defendant. Id.
We have previously found that the work-product exception only applies when the State alleges that the defendant concealed a document, record, or thing. Peter was not indicted for concealing evidence, but for conspiracy to fabricate evidence. The work-product exception, therefore, does not apply, and the trial court did not err when it refused to include Peter=s requested instruction. This holding makes Peter=s ineffective assistance claim moot. Issues six and seven are overruled.
C. Motion for New Trial.
Peter filed a motion for new trial that was based in part on newly discovered evidence. Peter testified at trial that he had tape-recorded his conversations with Gaitan but that they had been accidentally erased. Peter contended that, after the trial, he was able to recover part of the recordings and prepare a transcript. The trial court held a hearing and ordered Peter to produce all tape or digital recordings of his conversations with Gaitan as well as the digital recording device with memory card and the original analog tape used to create his transcript. Peter=s motion was subsequently overruled without further hearing or evidence.
We review the grant or denial of a motion for new trial under an abuse of discretion standard. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We may not substitute our judgment for that of the trial court, Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992), and credibility of the witnesses is primarily a determination for the trial court. Hoyos v. State, 951 S.W.2d 503, 511 (Tex. App.CHouston [14th Dist.] 1997), aff=d, 982 S.W.2d 419 (Tex. Crim. App. 1998). As finder of fact, the trial court may accept or reject any or all of the testimony given by State or defense witnesses. Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Thus, we are authorized to (1) apply a deferential standard of review to the trial court=s resolution of historical facts and (2) rely upon implied findings of fact that are supported by the record to uphold the trial court=s ruling, even when the trial court is not faced with expressly conflicting affidavits or testimony. Charles v. State, 146 S.W.3d 204, 206 (Tex. Crim. App. 2004); Villarreal v. State, 79 S.W.3d 806, 811‑12 (Tex. App.CCorpus Christi 2002, pet. ref=d).
A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial. Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon 2006). The party who moves for a new trial based on newly discovered evidence must satisfy a four‑part test: (1) the newly discovered evidence was unknown or unavailable to the accused at the time of his trial; (2) the accused=s failure to discover or obtain the evidence was not due to a lack of diligence; (3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in another trial. See Keeter v. State, 74 S.W.3d 31, 36‑37 (Tex. Crim. App. 2002).
The record does not establish an abuse of discretion. Peter knew about the recordings at the time of trial because he testified about them. Whether he exercised due diligence to recover those recordings before trial is inherently a fact issue. Under our deferential standard of review, we cannot second-guess the trial court=s implied finding that he did not do so. Furthermore, the only purpose of the new evidence was to impeach Gaitan=s testimony about his conversations with Peter. Because impeachment evidence is not Anew evidence@ for purposes of a new trial, this also supports the trial court=s decision. Issues eight and nine are overruled.
IV. Holding
The judgment of the trial court is affirmed.
PER CURIAM
June 7, 2007
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Marcos Gallardo pleaded guilty to the offense of indecency with a child by exposure. He filed an application for writ of habeas corpus. The trial court denied that application, and he appealed to this court. We affirmed the trial court. Gallardo v. State, No. 11-04-00049-CR (Tex. App.CEastland, Sept. 30, 2004, no pet.). All references to Gallardo=s appeal are to Cause No. 11-04-00049-CR.