Deckard v. State

• Decision Date: 15 October 1997
• Docket Number: No. 10-94-351-CR,10-94-351-CR
• Citation: 953 S.W.2d 541
• Parties: Grady DECKARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 541

953 S.W.2d 541

Grady DECKARD, Appellant, v. The STATE of Texas, Appellee.

No. 10-94-351-CR.

Court of Appeals of Texas Waco.

Oct. 15, 1997.

H. Todd McCray, San Antonio, for appellant.

Bill Turner, District Attorney, Douglas Howell, III, Asst. District Attorney, Bryan, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION ON REMAND

CUMMINGS, Justice.

Following a bench trial, the appellant, Grady Deckard, was convicted of aggravated perjury and sentenced to five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. See TEX. PEN.CODE ANN. § 37.03 (Vernon 1994). On appeal, Deckard disputes the sufficiency of the evidence showing his in-court testimony was false.

I. Factual Background

In the fall of 1985, Deckard was being detained in the Brazos County Jail on attempted murder charges. During his detention, Deckard informed a jail administrator that Robert Black, a capital murder defendant, was planning an attempt to escape from the jail. Based on this information, the district attorney called Deckard to testify, during the punishment phase of Black's capital murder trial, about Black's plans to escape from the Brazos County Jail.

The jurors in Black's case imposed a death sentence on Black and attorneys from the Texas Appellate Practice and Educational Resource Center ("Resource Center") ¹ began representing Black on his petition for a writ of habeas corpus. As a part of their representation of Black, investigators from the Resource Center visited Deckard to ask him about his testimony, and Deckard told them his previous testimony at Black's trial had been untrue. The investigators assured Deckard that the statute of limitations for perjury had run and he could not be prosecuted for any lies told at Black's trial. Consequently, Deckard was called as a witness at Black's hearing on his petition for a writ of habeas corpus. At the hearing Deckard stated he never heard Black planning an escape attempt, but he had lied about this because the jail administrator had promised to make him a trustee ² if he told the jail officials about Black's escape plans. Immediately after giving this testimony, Deckard was arrested and charged with perjury.

The State proceeded to trial on the July 9, 1992 indictment which charged that Deckard had committed aggravated perjury by lying at Black's habeas corpus hearing. The State alleged that Deckard's testimony at Black's trial was true and Black had actually told Deckard about his plans to escape from the Brazos County Jail. After a bench trial, Deckard was convicted on the aggravated perjury charge.

II. Points of Error

Before beginning our review of the evidence supporting Deckard's conviction, we must first determine what type of sufficiency review Deckard is seeking: legal sufficiency, factual sufficiency, or both. In Deckard's original appeal to this court, he raised one point of error disputing the legal sufficiency of the evidence to support his conviction. This court affirmed his conviction, but the Court of Criminal Appeals vacated that judgment because the Court found the sufficiency of the evidence had been measured against the wrong indictment. The Court's opinion directs us to reconsider Deckard's legal sufficiency claim as it relates to the July 9, 1992 indictment. Deckard v. State, No. 1496-96 (Tex.Crim.App.1997) (not designated for publication). Thus, we must necessarily review the legal sufficiency of the evidence supporting Deckard's conviction. However, in Deckard's first point of error he claims that the State did not produce factually sufficient evidence to support a conviction. Then in points two through five Deckard argues why specific evidence is "insufficient" to establish Deckard's guilt. Nowhere in his brief does Deckard set out the appropriate standard of review for either a legal or factual sufficiency point and in his prayer for relief he requests both a reversal and rendition of a judgment of acquittal or in the alternative a reversal and remand for a new trial. In the interest of justice, we will consider Deckard's brief to have raised complaints about both the legal and factual sufficiency of the evidence supporting Deckard's conviction. ³ See Calhoun v. State, 951 S.W.2d 803, 810 (Tex.App.--Waco 1997, no pet.h.); see also Turro v. State, 950 S.W.2d 390, 397-98 (Tex.App.--Fort Worth 1997, pet.filed).

A. Legal Sufficiency of the Evidence

A challenge to the legal sufficiency of the evidence is resolved by looking at the evidence in the light most favorable to the verdict to determine if a rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996). During a bench trial the trial court is the "exclusive judge of the credibility of the witnesses and the weight to be given to their testimony," and on appeal the judge's determination of the weight and credibility of the evidence will not be re-evaluated. Joseph v. State, 897 S.W.2d 374, 376 (Tex.Crim.App.1995); see also Hernandez v. State, 938 S.W.2d 503, 513 (Tex.App.--Waco 1997, pet. ref'd); DeLeon v. State, 937 S.W.2d 129, 131 (Tex.App.--Waco 1996, pet. ref'd).

In an aggravated perjury prosecution the State must prove the defendant:

(1) with intent to deceive and (2) with knowledge of the statement's meaning, (3) made a false statement under oath, (4) that was required or authorized by law to be made under oath, (5) in connection with an official proceeding, and (6) that the false statement was material.

Bonilla v. State, 933 S.W.2d 538, 540 (Tex.App.--Houston [1st Dist.] 1995, no pet.); see TEX. PEN.CODE ANN. §§ 37.02, 37.03 (Vernon 1994); McCullar v. State, 696 S.W.2d 579, 581 (Tex.Crim.App.1985). Furthermore, the Code of Criminal Procedure requires that a perjury conviction not be based "solely upon the testimony of one witness other than the defendant." TEX.CODE CRIM. PROC. ANN. § 38.18(a) (Vernon 1979).

Deckard, in five points of error, asserts that insufficient evidence exists to show he made a false statement under oath when he testified at Black's habeas corpus hearing that Black never discussed a plan to escape from the Brazos County Jail with Deckard. ⁴ Deckard argues that, although the record reflects he made two contradictory statements under oath, this alone is insufficient to support his conviction for perjury. We agree with Deckard on this point. In this case Deckard was not charged using § 37.06 of the Penal Code which allows the State to merely allege the defendant made contradictory statements under oath and eliminates the need for the State to prove at trial which statement was false. See TEX. PEN.CODE ANN. § 37.06 (Vernon 1994). Presumably this provision was not used because the statute of limitations had run as to Deckard's testimony given in Black's trial. See Ex parte Zain, 940 S.W.2d 253, 253-54 (Tex.App.--San Antonio 1997, no pet.) (finding the statute of limitations for aggravated perjury is two years); see also Ex Parte Matthews, 933 S.W.2d 134, 136 (Tex.Crim.App.1996). Instead the indictment affirmatively alleges that Deckard's testimony at Black's habeas corpus hearing was false, and the State had the burden to prove this falsity beyond a reasonable doubt at trial. See Benson v. State, 661 S.W.2d 708, 713 (Tex.Crim.App.1983) (on rehearing).

The State, in meeting its burden of proof, may present evidence that Deckard's original testimony was actually true, and consequently, his later statements directly contradicting this truthful testimony must necessarily be false. See Brasher v. State, 715 S.W.2d 827, 831 (Tex.App.--Houston [14th Dist.] 1986, no pet.) (perjury may be proved by circumstantial evidence). At Deckard's trial, the State produced evidence that Black had actually planned an attempt to escape from the jail. A jail officer from the Brazos County Jail testified that a hand-drawn map of the jail and surrounding area was found under Black's mattress in his cell. The officer testified that this map could have aided Black in an escape attempt. While in jail Black also attempted suicide, and jail officials believed this might have been an attempt to escape from custody. Also, Deckard's testimony at Black's trial showed he knew how Black might attempt to escape. Deckard testified that Black had considered escaping when he was transported to MHMR for medication, and the jail administrator, Ron Huddleston, confirmed that Black made many requests to go to the MHMR facility. The State also introduced into evidence a letter written by Deckard to his lawyer which states: "The only reason I told [the jail administrator] anything is because he promised to make me a trustee, so of course I told him what I knew." ⁵

Furthermore, there were inconsistencies in Deckard's testimony at the habeas corpus hearing which the trial judge could have considered in finding that Deckard's recantation was not credible and his former testimony was in-fact true. When he testified at the habeas corpus hearing Deckard attempted to explain what had occurred in the Brazos County Jail which led him to lie at Black's trial. Deckard stated that, while he was in jail, Huddleston, the jail administrator, approached him to ask if Black was planning an escape. Deckard said he told Huddleston he did not know of any plans to escape but he agreed to try to find out what Black was planning in return for Huddleston's promise to make him a trustee. Deckard then explained that Huddleston began to come visit him every few days to ask what Deckard had learned about the escape. Deckard stated he kept telling Huddleston he...