Hardy v. State

• Decision Date: 10 January 2008
• Docket Number: No. 14-04-00595-CR.,14-04-00595-CR.
• Citation: Hardy v. State, 246 S.W.3d 290 (Tex. App. 2008)
• Parties: Dearl HARDY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

246 S.W.3d 290

Dearl HARDY, Appellant, v. The STATE of Texas, Appellee.

No. 14-04-00595-CR.

Court of Appeals of Texas, Houston (14th Dist.).

January 10, 2008.

James F. Keegan, Houston, for appellant.

Michael Adrian Mark, Liberty, for appellee.

Panel consists of Chief Justice HEDGES, Justice ANDERSON, and Senior Chief Justice MURPHY.^*

OPINION ON REMAND

ADELE HEDGES, Chief Justice.

Appellant, Dearl Hardy, was found guilty by a jury of perjury. The trial court sentenced appellant to six months confinement in the Chambers County jail and assessed a $2,500 fine. On appeal to this Court, we reversed appellant's conviction on the basis that the evidence was legally insufficient to prove that a false statement was made under oath. Hardy v. Texas, 187 S.W.3d 678, 684 (Tex.App.-Houston [14th Dist.] 2006), rev'd, 213 S.W.3d 916 (Tex.Crim.App.2007). The Court of Criminal Appeals granted appellee's petition for discretionary review, reversed our judgment, and remanded the cause to this Court to address appellant's remaining seven sub-points of error. Hardy, 213 S.W.3d at 917. We affirm.

BACKGROUND

A jury found appellant guilty of perjury after hearing evidence that appellant directed Deputy John Joslin to file a false DWI (driving while intoxicated) charge against Vernon Coates. On September 3, 2001, Deputy Brett Hulsey observed Coates make two turns without signaling and run a stop sign. Hulsey turned on his lights and siren for Coates to stop, but Coates failed to immediately pull over. When Coates finally stopped, Hulsey smelled an odor of alcohol emanating from Coates. Coates also admitted that he had been drinking. Hulsey later found empty beer cans in Coates' truck. Hulsey arrested Coates for evading arrest, failing to use his turn signal, and disregarding a stop sign. Hulsey did not administer any sobriety tests at the scene and did not arrest Coates for a DWI. Instead, Hulsey deferred to Joslin, who had arrived on the scene with Sergeant David Beck, to determine Coates' intoxication level because Joslin was more qualified to make such determination.

There is conflicting evidence as to whether Coates appeared to be intoxicated when he arrived at the county jail. Jailer Steve Wood saw Coates at booking and testified that Coates was verbally abusive, agitated, and belligerent, but did not appear to be intoxicated. Joslin thought Coates was borderline, but not legally intoxicated. Hulsey testified that while he never thought Coates was legally intoxicated, another deputy could have had probable cause to believe Coates was intoxicated. Hulsey later testified, seemingly in contradiction of himself, that Coates did not appear to have the normal use of his physical and mental faculties and that Coates appeared to be intoxicated. Hulsey stated, however, that he was not qualified to judge Coates' intoxication at the time of his arrest.

At the jail, Hulsey executed a probable cause affidavit on the traffic offenses committed by Coates. Carlton Carrington, a county dispatcher and notary, testified that appellant, who at the time was chief deputy of the Chambers County Sheriffs Department, learned of Coates' arrest and that his attorney was coming to the jail; appellant told the dispatcher "good news travels fast."¹ Appellant then contacted Hulsey at the jail. Hulsey explained to appellant the traffic violations precipitating Coates' arrest. Hulsey also told appellant that he was unsure whether Coates was legally intoxicated and that Joslin was handling the DWI aspect of the traffic stop.

After his initial conversation with Hulsey, appellant called the jail to speak to Joslin. Joslin told appellant that he had performed the HGN (horizontal gaze nystagmus) test at the jail and determined that Coates was borderline, but not legally intoxicated. Joslin did not perform any other sobriety tests and did not give Coates an intoxilyzer test. Joslin also told appellant that Coates had bloodshot eyes, smelled of alcohol, and had stumbled slightly while entering the jail. However, Joslin told appellant that he did not believe Coates was legally intoxicated because Coates had not demonstrated sufficient indicators on the HGN test.

A few minutes later, appellant called the jail again to speak with Joslin on an unrecorded line. According to Joslin, appellant said that he was very knowledgeable about DWIs and wanted Joslin to charge Coates with a DWI "or else." Joslin protested the fairness of Coates' DWI charge, but appellant told him that they needed the DWI in order to suspend Coates' driver's license. Although Joslin did not believe Coates was legally intoxicated, he filed a probable cause affidavit accusing Coates of DWI. Joslin testified that he thought he would be fired if he did not file the DWI charge. Appellant made it clear that anyone who broke the chain of command, in which appellant was second in line only to the sheriff, and "went above his head," would be fired.

In the probable cause affidavit, Joslin stated that he smelled "a very strong odor of an alcoholic beverage on [Coates'] breath and person." Joslin also wrote a separate report in which he reiterated that Coates smelled of alcohol and stated that he thought Coates "was intoxicated to the point that he was a danger to himself and others from losing the normal use of his mental and physical faculties."² At trial, Joslin testified that these statements were lies and that he filed the documents in violation of the law. Joslin told Hulsey, Wood, and Beck that he did not think Coates was legally intoxicated. Hulsey testified that after Joslin spoke with appellant the night of Coates' arrest, Joslin seemed upset, threw his hands in the air, and said "that he had never in his police career ever had to do anything like this before." Hulsey also testified that Joslin later told him that he was directed to file the DWI. Wood testified that when he rode home with Joslin after the Coates' incident, Joslin seemed as if something was bothering him. Joslin told Wood that appellant had ordered him to change his report and that he would lose his job if he did not file the report. Joslin also claimed to have videotaped his encounter with Coates in which he said: "I don't think it is there; I think he is a little short." However, Joslin was unable to locate the videotape.

The day after Coates' arrest, appellant summoned Joslin to his office to discuss Joslin's original report. Joslin testified that his original report indicated he had filed the DWI charge based on his conversation with appellant. Appellant told Joslin to delete any reference to appellant and their second telephone conversation from the report. Notwithstanding appellant's demands, he also told Joslin not to lie in his report and to tell the truth if anyone ever asked about their second telephone conversation. Joslin revised his report and gave both the original and the revised copies to appellant.

In April 2002, Ernest Rodney Yarbrough of the Sheriffs Criminal Investigation Division began an unrelated internal investigation on Beck. Yarbrough believed that appellant had tampered with the Beck investigation. Specifically, Yarbrough had obtained an affidavit in his investigation, but after speaking with appellant, the affiant wanted to change his story. Yarbrough and appellant argued about the investigation, and appellant confiscated Yarbrough's files. In May 2002, the sheriff altered the chain of command so that Yarbrough no longer reported to appellant. Upon learning of this change, Joslin and other deputies met with Yarbrough. Yarbrough then came to believe that appellant had engaged in wrongful conduct and relayed his concerns to the sheriff. Around the same time, in May 2002, Texas Ranger Frank Huff began investigating Joslin for allegations of sexual assault of a female deputy.³ In the course of this investigation, Joslin admitted to Huff that he had committed a crime in the Coates' incident. Huffs investigation eventually included Hulsey and appellant.

Hulsey and Joslin were charged with felonies stemming from the DWI charge against Coates. However, they were not tried pursuant to agreements with the State to testify against appellant at his trial. The State charged appellant with aggravated perjury and the lesser included offense of perjury. On appellant's motion, the trial court instructed the jury to find appellant not guilty on the aggravated perjury charge and to decide appellant's guilt or innocence on the perjury charge. The jury found appellant guilty of perjury, and the trial court sentenced appellant to six months confinement in county jail and assessed a $2,500 fine.

In appellant's remaining sub-points of error, he argues that the evidence is legally and factually insufficient to uphold his conviction because: (1) there is insufficient evidence proving Joslin made a statement; (2) there is insufficient evidence proving Joslin's declaration was false; (3) there is insufficient evidence proving that appellant told Joslin to lie; (4) the State presented no evidence that appellant did not think Coates committed the offense of DWI; (5) Joslin's accomplice testimony was not corroborated; (6) the evidence that Coates had not committed the offense of DWI rested solely upon the testimony of Joslin; and (7) Hulsey and Joslin had motive to lie.

ANALYSIS

Standards of Review

We utilize familiar standards of review for appellant's legal and factual sufficiency challenges. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a trier of fact could not have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App.2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996)....