dissenting.
The majority opinion holds that death penalty sanctions (striking of plaintiffs pleadings and dismissing her claims with prejudice) are appropriate when a trial judge believes defense witnesses and concludes, after a hotly contested pretrial sanctions hearing, that the plaintiff has fabricated false evidence. I dissent.1
This case involves a swearing match. Plaintiff swore, and her expert witness swore, that the tape recording HAD NOT BEEN ALTERED in any way. They attributed the gaps in the tape to the fact that the recorder was on “auto mode.” Defendant admitted his voice is on the tape, said he could not recall what he said during the conversation with plaintiff, but denied the tape accurately reflected the conversation. Defendant’s two experts testified the tape HAD BEEN ALTERED. The trial court believed defendant and his experts. If the trial court or a jury instead believed plaintiff and her expert, we would hold the evidence supports that conclusion also.
This is not a case like Vaughn, relied on by the majority. Vaughn v. Texas Employment Comn’n, 792 S.W.2d 139 (Tex.App.—Houston [1st Dist.] 1990, no writ). The Vaughnopin-ion began with the important statement:
The plaintiff-appellant does not challenge the trial court’s findings that she committed perjury and fabricated evidence in her deposition and discovery responses, and that she committed perjury during the hearing on appellee’s motion for sanctions.
Id. at 140. Contrary to Vaughn, plaintiff DOES challenge the claims of “misdeeds” by her.
I am very concerned by the prospect that a trial judge can mete out the death penalty of striking pleadings and entering a take-nothing judgment based on the trial judge believing one set of witnesses in a hotly contested matter. I agree with the following principle articulated by the Corpus Christi Court of Appeals:
[A] trial court may not effectively adjudicate the merits of a case based on testimony of a party during a sanctions hearing because he was later impeached on testimony given at the hearing. The witness’ credibility should be tested when the case is tried. Otherwise, a trial court could at any time interrupt a trial proceeding if it believed a witness was being untruthful, and simply enter a default against the party procuring that witness for that reason.
Lanfear v. Blackmon, 827 S.W.2d 87, 91 (Tex.App.—Corpus Christi 1992, orig. proceeding).
*237Again, what makes this ease unique is that the plaintiff was not caught “red handed.” She made no confession. She was adamant in her denial of wrongdoing. At the sanctions hearing she found it necessary to rely on her expert’s affidavit and written deposition, while defendant presented two live expert witnesses; that must have hurt her case. The evidence is certainly legally and factually sufficient to support a finding that the tape was fabricated; however, the evidence is likewise legally and factually sufficient to support the opposite finding. Under such circumstances, death penalty sanctions should not be condoned.
SCHNEIDER, C.J., and O’CONNOR and ANDELL, JJ., join this dissenting opinion.
. I note that the trial court’s order striking plaintiff’s pleadings and granting sanctions states, in part:
The Court finds that Plaintiff, Reba Rocket Daniel, has intentionally fabricated false evidence by way of an audio tape recording of an alleged conversation between Reba Rocket Daniel and David Kelley. The Court further finds that Plaintiff has repeatedly resisted proper discovery requests made by Defendants, has failed to obey the Court’s June 1, 1995 Order with respect to the production of the subject audio tape, and has been held in contempt and sanctioned for her disobedience. Accordingly, the Court finds that Plaintiff has flagrantly and in bad faith violated the rules of discovery under the Texas Rules of Civil Procedure, specifically, Tex.R. Civ. P. 215, and that such patterns of discovery abuse by Plaintiff can be remedied only by an order striking Plaintiff's pleadings in their entirety, the dismissal with prejudice of Plaintiff's action, entry of a judgment that Plaintiff take nothing against Defendants, and further sanctions.
I express no opinion about whether the trial court's order was proper based on the full record and the totality of the findings made by the trial court. The majority opinion does not address the "further findings” in the trial court’s order; rather, the majority specifically holds that the first finding alone, that the plaintiff "has intentionally fabricated false evidence,” justified the death penalty sanctions.