Hardy, Dearl v. State ( 2006 )

Reversed and Rendered and Majority and Dissenting Opinions filed February 9, 2006

Reversed and Rendered and Majority and Dissenting Opinions filed February 9, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00595-CR

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DEARL HARDY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Cause No. 344-12404

D I S S E N T I N G   O P I N I O N

I respectfully disagree with the majority=s conclusion that the evidence is legally insufficient to support appellant=s conviction.  Under the Penal Code, a person commits perjury if he makes a false statement under oath with the intent to deceive and with knowledge of the statement=s meaning.  Tex. Penal Code Ann. _ 37.02(a)(1) (Vernon 2003).  While Aoath@ is not statutorily defined, it has been defined as Aa pledge to act in a truthful and faithful manner.@ Martin v. State, 896 S.W.2d 336, 339 (Tex. App.CAmarillo 1995, no pet.).

The majority found the State failed to prove that Joslin=s statements in his probable cause affidavit were made under oath.  In making its determination, the majority relied on Lowry v. State, 297 S.W.2d 848 (Tex. Crim. App. 1957), a nearly fifty-year-old case that has been cited by only one intermediate Texas appellate court. In Lowry, the State relied on witness identification of the appellant=s and notary=s signatures, the presence of a jurat, and the fact that the notary was authorized in the relevant county to prove that a legal oath had been administered.  Id. at 849.  The Court of Criminal Appeals found this evidence was insufficient to prove the appellant had executed a legal oath because the State did not show the notary actually administered the oath to the appellant or that the appellant ever appeared before the notary.  Id. at 850. 

The majority analogizes the instant case to Lowry, which it notes Awe are constrained to follow@ despite the majority=s recognition Athat a proper affidavit should substitute for live testimony under oath.@ I find this case distinguishable from Lowry.  Here, Joslin admitted he committed perjury because he felt threatened by appellant.  Moreover, several witnesses corroborated Joslin=s testimony and described his reaction the night appellant was arrested. Deputy Hulsey testified that he saw Joslin on the phone with appellant and that afterward Joslin was visibly upset and complained he could not believe he had to file a DWI against Coates. Also, Wood testified that Joslin confided in him that appellant ordered Joslin to change his report and that Joslin feared losing his job unless he complied.  Thus, there is corroborating evidence of Joslin=s accomplice witness testimony.  See Cathey v. State, 992 S.W.2d 460, 462B63 & n.4 (Tex. Crim. App. 1999) (noting that accomplice testimony must be corroborated with nonaccomplice evidence).  This evidence, viewed in the light most favorable to the verdict, could enable a rational fact-finder to find beyond a reasonable doubt that Joslin committed perjury.           

Finally, the majority concedes that two more recent cases suggest a notarized affidavit may suffice for a legally administered oath.  See Quinones v. State, No. 05-01-01876-CR, 2003 WL 21525305, at *1 (Tex. App.CDallas July 8, 2003, no pet.) (not designated for publication); Martin, 896 S.W.2d at 339.  In Quinones, the appellant argued the evidence was legally insufficient to support her conviction because the notary did not administer her oath when she signed her affidavit.  See Quinones, 2003 WL 21525305, at *1.  The Dallas Court of Appeals affirmed her conviction, noting that Aan affidavit is simply another way to manifest an oath.@ Id. (citing Martin, 896 S.W.2d at 339).  In Martin, the Amarillo Court of Appeals described an oath as Aan >unequivocal act by which [the individual] consciously takes upon himself the obligation of an oath= before someone authorized to administer an oath.@  Martin, 896 S.W.2d at 339 (citing Lowry, 297 S.W.2d at 850).  The Martin court went on to note that in that case, Athe stipulations executed by the parties evidenced that the Appellant orally pledged to the veracity of her . . . statement.@ Id.  These cases recognize the difficulty of demanding rigid adherence to swearing formalities.  Similarly, the existence of a technical defect in Joslin=s affidavit should not negate his testimony in which he admitted that he intended to and did commit perjury under appellant=s order.

For these reasons, I respectfully dissent.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Majority and Dissenting opinions filed February 9, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson (Hedges, C.J. majority).

Publish C Tex. R. App. P. 47.2(b)