Joe Howard Hill v. State ( 2005 )

OPINION HEADING PER CUR

                     NO. 12-04-00145-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

  TYLER, TEXAS

  JOE HOWARD HILL,                                       §     APPEAL FROM THE 8TH

APPELLANT

V.                                                                         §     JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,                                  §     RAINS COUNTY, TEXAS

APPELLEE

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  MEMORANDUM OPINION

            Joe Howard Hill appeals his conviction by a jury for making a false document to affect the course or outcome of an investigation or official proceeding. The trial court assessed punishment at imprisonment for five years, probated for ten years. In eight issues, Appellant challenges the legal and factual sufficiency of the evidence. We affirm.

Factual and Procedural Background

            A Rains County grand jury issued the following indictment against Appellant:

INDICTMENT-Tampering With or Fabricating Physical Evidence

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

The Grand Jurors of the County of Rains, State of Texas, duly selected, impaneled, sworn, charged and organized as such at the JANUARY Term, 2003, of the Eighth Judicial District Court of said County, upon their oaths present in and to said Court, that JOE HOWARD HILL, on or about the 2nd day of May, 2003, and before the presentment of this indictment, in said County and State, did then and there knowing that an investigation was pending, to-wit: a driving while intoxicated offense against Alicia Clark, intentionally or knowingly make or present or use a record or document, to-wit: a statement indicating he did not wish to further prosecute Alicia Clark for the driving while intoxicated offense and said statement was produced on the Rains County Sheriff’s Office official letterhead at a time when JOE HOWARD HILL was not employed with Rains County Sheriff’s Office, with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

              AGAINST THE PEACE AND DIGNITY OF THE STATE OF TEXAS

                                                                                                    Mickey Thurman________________

                                                                                                    FOREMAN OF THE GRAND JURY

            Appellant was tried before a jury. The evidence at trial showed that Trooper Jason Dickerson of the Department of Public Safety (“DPS”) was called to investigate an accident in Rains County after 1:00 a.m. on April 11, 2003. He took over the investigation of the accident from law enforcement officials who had already arrived on the scene, including Appellant, a deputy in the Rains County Sheriff’s Department. In his investigation, Dickerson determined that one of the drivers in the accident, Kristopher Smith, had been driving while intoxicated. While still at the accident scene, Trooper Dickerson and the other law enforcement officials were informed that a vehicle careening and speeding recklessly on U.S. Highway 69 was nearing their location. The vehicle was driven by Alicia Clark, who was stopped near the accident scene by the DPS officers there.

            Soon after being removed from her vehicle, Clark approached Appellant, took him by the arm and asked him, “Is there anything you can do? Can you take me home and get me out of this?” Appellant testified that he told her “No” and that she needed to cooperate with the DPS troopers. Dickerson then had Clark perform several field sobriety tests. After concluding that Clark was intoxicated, Dickerson arrested her and arranged for her to be transported to the Rains County Jail. There both Smith and Clark were booked in by jailer Wendy Harris. Harris testified that to enter an arrest report in the Rains County computers, she had to show a Rains County law enforcement officer as the “arresting officer.” Because Dickerson was a DPS trooper, she could not use his name even though he had actually investigated the incidents and made the arrests. Harris testified that she used Appellant’s name because he was on duty at the time Smith and Clark were booked into the jail.             While Clark was being booked, Appellant arrived and told Clark that “everything would be okay.” Clark testified that Appellant called her after the arrest and that before the end of April he came to the addition where she resided to tell her he was going to check into her case. Both Appellant and Clark testified that he had also been in contact with her several times before her DWI arrest. Appellant had asked Clark out on dates, but she had declined each time.

            On April 30, Appellant was notified in a letter from Rains County Sheriff Richard Wilson that he would be terminated as a deputy on May 1, the next day. Appellant testified that he began going through the records of the sheriff’s department to take care of any loose ends. He testified that this was when he discovered he was listed as the “arresting officer” on Clark’s arrest report. He also stated that upon discovering this information, he completed the top part of a nonprosecution statement (the “statement”) that was on the sheriff’s department letterhead. The statement provided as follows:

THE STATE OF TEXAS, COUNTY OF RAINS BEFORE ME THE UNDERSIGNED AUTHORITY ON THIS DAY PERSONALLY APPEARED JOE HILL WHO AFTER BEING BY ME FULLY SWORN DEPOSES AND SAYS AS FOLLOWS: I, JOE HILL DO NOT WISH TO FURTHER PROSECUTE ALICIA MAE CLARK ON THE CHARGE OF DWI IST ON 4-11-2003.

SWORN TO and Subscribed before me by __________ on the _____ day of _______, _______.

(seal)______________________

AFFIANT

                                                                                                                   _____________________

                                                                                                                   WITNESS

______________

NOTARY  

            Appellant took the statement to the county attorney’s office on May 2, where in the presence of Cheryl South, a new and inexperienced employee there, he filled in the jurat of the statement before signing his name as affiant. However, he left the witness line blank and did not have South or anyone else notarize it. He then asked South to place the statement in Clark’s DWI file. South did as requested, but then told another office employee what she had done at Appellant’s behest. Rains County authorities immediately began an investigation. Dickerson was contacted by the sheriff’s department about the statement Appellant had completed. In response, he sent the following letter on DPS letterhead:

May 5, 2003

              Rains County Sheriff’s Office

              Deputy Fisher

              Deputy Fisher:

As per our earlier conversation, I have had no contact with Joe Hill regarding not prosecuting Alicia Mae Clark for DWI. It is my desire that the case be fully prosecuted and the Rains County Prosecutor should have my case report.

              Please contact me at the following phone numbers if I can be of any more assistance to you.

              [Phone numbers omitted]

              Sincerely,

              /s/

              Jason T. Dickerson

              Cc: Sgt. Ray Deaton

Clark later entered a guilty plea to the DWI charge.   

              Appellant was found guilty as indicted. His punishment was assessed at five years of imprisonment, probated for ten years. This appeal followed.

Sufficiency of the evidence

            In eight issues, Appellant challenges the legal and factual sufficiency of the evidence that his statement indicating that he did not wish to prosecute Clark was false, that he intended to affect the course or outcome of the investigation or official proceeding against Clark, and that he tampered with or fabricated the physical evidence in her case.

Standard of Review

            In reviewing a challenge to the legal sufficiency of the evidence, we review 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. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In reviewing the evidence for legal sufficiency, an appellate court does not reweigh the evidence and substitute its judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of 1) the facts, 2) the credibility of the witnesses, and 3) the weight to be given to the testimony of each witness. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). As factfinder, a jury may reject any or all part of a witness’s testimony. Id.

            In concluding a factual sufficiency review, an appellate court must review all of the evidence, but not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000). We must determine whether a neutral review of all of the evidence, both for and against the challenged finding, demonstrates that a rational jury could have found guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Id. at 484-85. Our evaluation should not intrude upon the factfinder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).

Applicable Law

            Section 37.09 of the Texas Penal Code states as follows:

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:

. . . ;

(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

Tex. Pen. Code Ann. § 37.09(a)(2) (Vernon 2003). A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003).

Analysis

            In his first two issues, Appellant contends that the evidence is not legally and factually sufficient to prove that the statement he signed was false. Sheriff Wilson testified that he had not authorized Appellant to file a nonprosecution statement in the Clark case. Wilson also testified that he did not know that Appellant was going to file the statement in the Rains County Attorney’s office the day after he was terminated as an employee of his department. Further, Wilson testified that Appellant did not use the sheriff’s department standard form for a nonprosecution statement. According to Wilson, the standard nonprosecution statements the department used were not on sheriff’s department letterhead. He also testified that the letterhead Appellant used was no longer used by the sheriff’s department.

            Wilson and his chief deputy, David Traylor, both testified that it was standard procedure for only the arresting or investigating officer to file a nonprosecution statement with either the county or district attorney, whoever was prosecuting the offense. Appellant testified that he was only assisting the DPS in the investigation and arrest of Clark. He also testified that he knew he was neither the arresting or investigating officer in the Clark case.

            Appellant testified that he did not realize he had been shown as the “arresting officer” on Clark’s arrest form on file with the sheriff’s department until the night of April 30, after he had been informed that he was to be terminated. He said his reason for completing the statement was that he did not want to be shown as Clark’s arresting officer. He also said that he completed the statement and filed it with the county attorney’s office so that he would no longer be listed as the arresting officer. Traylor testified that completing a nonprosecution statement was not the procedure used in the sheriff’s department for correcting an arrest report. He stated that if an officer wanted to correct an arrest report, he could go back and edit it himself. Traylor contended that Appellant, with eighteen years of law enforcement experience, knew the proper procedure to correct a mistake on an arrest form in the sheriff’s department and yet had not followed that procedure.

            The evidence established that Harris had booked Clark and Smith into the Rains County Jail at approximately the same time. The book-in form for both Clark and Smith showed that Appellant was the “arresting officer.” Appellant admitted that he had not filed a nonprosecution statement in Smith’s case. He testified that he had not done so because he had not realized that he was also the “arresting officer” listed in Smith’s case.

            After reviewing the evidence on the issue of falsity in the light most favorable to the guilty verdict, we conclude that there was legally sufficient evidence to support the jury’s determination of this issue in favor of the State. In reviewing the evidence, both for and against the verdict on the falsity issue, we cannot say that the evidence supporting the verdict, considered by itself, is too weak to support the finding of falsity beyond a reasonable doubt. Nor can we conclude that the contrary evidence is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Therefore, the evidence was factually sufficient to support the jury’s determination that Appellant knew the nonprosecution statement was false when he submitted it to the county attorney’s office. Appellant’s issues one and two are overruled.

            In issues three, four, five, and six, Appellant contends there is not legally and factually sufficient evidence to prove that he intended to affect the outcome or course of either the investigation or the official proceeding against Clark. In addition to the evidence already discussed, the record reveals that Appellant knew South was a relatively new employee in the county attorney’s office, having worked there less than three months. He signed the nonprosecution statement in her presence, but did not ask her or anyone else to witness it or to notarize it. He merely requested South to put the statement in Clark’s file. Appellant testified that he knew a nonprosecution statement in a criminal defendant’s file could have an effect on whether the offense was actually prosecuted.

            Appellant contends that if he had been trying to affect the outcome of the investigation or official proceeding against Clark, he had other opportunities to do so. First, he contends that he could have told Clark at the scene of her traffic stop not to cooperate with the DPS officers. Secondly, he argues that he could have changed actual evidence in Clark’s case. Finally, he contends that he would have had the nonprosecution statement notarized and witnessed if he had really meant to affect the investigation or outcome of the case against Clark.

            The intent of the accused is ordinarily determined by circumstantial evidence. See Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978). On appeal, we do not inquire whether the evidence persuades us that a defendant had a particular intent. Instead, we determine whether a rational jury could have found the intent to commit the crime beyond a reasonable doubt. Brimage v. State, 918 S.W.2d 466, 476 (Tex. Crim. App. 1994). After reviewing the evidence here in the light most favorable to the verdict, we conclude that the evidence was legally sufficient to show that Appellant intended to affect the course or the outcome of the Clark investigation or official proceeding.

            The jury determined the credibility of the witnesses and resolved the evidentiary inconsistencies in the State’s favor, which was its prerogative as factfinder. In reviewing the evidence, both for and against the verdict, we cannot say that the evidence supporting the determination that Appellant intended to affect the course or outcome of the Clark investigation or official proceeding was too weak to support the finding of guilt beyond a reasonable doubt. Nor can we say that the evidence contrary to the verdict was so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. We conclude the evidence was factually sufficient to show that Appellant intended to affect the course or the outcome of the Clark investigation or official proceeding. Appellant’s issues three, four, five, and six are overruled.

            In issues seven and eight, Appellant contends that the evidence was both legally and factually insufficient to prove that he tampered with or fabricated physical evidence. In reviewing these two issues, we must first examine Section 37.09(a), which states as follows:

§ 37.09. Tampering With or Fabricating Physical Evidence

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:

(1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; or

(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

Tex. Pen. Code Ann. § 37.09(a)(1), (2) (Vernon 2003) (emphasis added).

            The indictment in the instant case describes conduct that is prohibited by Section 37.09(a)(2), but does not include an allegation that Appellant engaged in conduct prohibited by subsection (a)(1). The conjunction “or” rather than “and” is used to join the two subsections. Therefore, an individual violates section 37.09(a) by engaging in the conduct described in either subsection 1 or subsection 2. The State was not required to prove that Appellant’s conduct violated both subsections. Appellant’s issues seven and eight are overruled.

Conclusion

            Having overruled Appellant’s eight issues, we affirm the judgment of the trial court.

                                                                                                     JAMES T. WORTHEN

                                                                                                                 Chief Justice

Opinion delivered July 29, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)