                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-07-161-CR


CAROLIN HIGHT TEAGUE                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

        FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

      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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