Mikel Peter Eggert v. The State of Texas--Appeal from 266th District Court of Erath County

Opinion filed June 7, 2007

Opinion filed June 7, 2007

In The

Eleventh Court of Appeals

____________

   No. 11-05-00227-CR

__________

   MIKEL PETER EGGERT, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 266th District Court

Erath County, Texas

Trial Court Cause No. CR12119

O P I N I O N

The jury convicted Mikel Peter Eggert of conspiracy to fabricate physical evidence, and the trial court sentenced him to two years confinement, probated for five years, and a fine of $5,000. We affirm.

I. Background Facts

 

Mikel Peter Eggert and his father Peter Hellmuth Eggert were indicted for conspiracy to fabricate physical evidence by making, presenting, or using the purported affidavits of Kim Whiteley or M.W. with the knowledge that they were false and with the intent to affect an appeal pending in this court.[1] The indictments were consolidated, and Peter and Mikel were tried together. The jury found both guilty, and the trial court assessed punishment at two years confinement and a $5,000 fine. The trial court probated only the confinement portion of the sentence.

II. Issues

Mikel challenges his conviction with twelve issues. These can be grouped into two areas: sufficiency of the evidence and the denial of Mikel=s motion for new trial.

III. Standard of Review

In reviewing claims of legal sufficiency of the evidence, we review all of 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. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). Due deference must be given to the fact finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996).

To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson, 23 S.W.3d at 10-11;Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 129. Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

IV. Analysis

A. Was There Sufficient Evidence of a Conspiracy?

 

Mikel argues initially that there was insufficient evidence of a conspiracy between him and his father, that the evidence reveals that Peter Eggert acted alone, and that at most the evidence indicates that he knew the Whiteley affidavits existed. A person commits criminal conspiracy if, with the intent that a felony be committed, he agrees with one or more persons that one or more of them will engage in conduct that constitutes the offense and one or more of them performs an overt act in furtherance of the agreement. Williams v. State, 646 S.W.2d 221, 222 (Tex. Crim. App. 1983). Because conspirators= work is often clandestine in nature, direct evidence is not required to support a conviction for criminal conspiracy; circumstantial evidence will suffice. Butlerv. State, 758 S.W.2d 856, 860 (Tex. App.CHouston [14th Dist.] 1988, no pet.). An agreement constituting a conspiracy may be inferred from the acts of the parties. Tex. Pen. Code Ann. ' 15.02(b) (Vernon 2003).

We have on this same day affirmed Peter Eggert=s conviction.[2] We have found that the evidence was sufficient to show that Peter knew Gallardo was guilty of indecency with a child by exposure but proceeded nonetheless to attempt to persuade Kim and M.W. to execute affidavits recanting any allegation of wrongdoing by Gallardo and that he did so in an attempt to impact Gallardo=s pending appeal in this court.[3] This evidence is sufficient to satisfy the requirement of an overt act. The evidence is also sufficient to support the jury=s finding that Peter Eggert=s actions were done as part of a conspiracy with his son.

Mikel was integrally involved in Gallardo=s representation. He was Gallardo=s attorney-in-fact for all federal matters.[4] He spoke with Assistant District Attorney Jason Cashon twice about Gallardo=s case. At one meeting, they discussed a potential writ of habeas corpus. Mikel was not licensed to practice law in Texas. When the Eggerts needed a Texas lawyer to appear in state court on the application for writ of habeas corpus, Mikel called a law school friend, Joe Lopez. Lopez agreed to participate, and Mikel signed Lopez=s name to the pleadings that were filed in this court in connection with the Gallardo appeal.

 

The Eggerts= intent was to prove Gallardo=s actual innocence. Mikel was aware that Gallardo had pleaded guilty and that Gallardo signed a stipulation acknowledging his guilt. Mikel was present for the meeting between Kim Whiteley and his father, and he had previously spoken with her. He testified that his father prepared the Whiteley affidavits but acknowledged that they discussed them before they were prepared and that he printed them off and read them before they were given to Kim. Kim described Mikel=s role at the meeting differently. She testified that he typed up the papers that were given to her and that it took him fifteen to twenty minutes to do so. She also testified that she told Peter that the affidavits were false. Mikel described this testimony as a lie.

This evidence was legally and factually sufficient to support the jury=s finding that Mikel conspired with his father. Mikel=s own testimony is sufficient to establish that, at a minimum, he was aware that Kim and her daughter were being asked to sign affidavits that recanted any allegation of wrongdoing and that were completely inconsistent with his client=s prior admissions to the court. He knew that he needed a determination of actual innocence to block Gallardo=s deportation. He was integrally involved in all phases of Gallardo=s representation: he visited with his father about the Whiteley affidavits before they were prepared, he visited with Kim before their meeting, he read the affidavits before they were given to Kim, and he knew that they were completely inconsistent with his client=s admissions. The jury was responsible for resolving conflicts in the evidence. It could, therefore, choose to believe Kim=s testimony that Mikel typed the papers rather than Mikel=s testimony that he merely printed them off.

Based upon this evidence, a rational juror could have found beyond a reasonable doubt that Mikel conspired with his father to fabricate evidence. Jackson, 17 S.W.3d at 668-69. If the evidence is viewed in a neutral light, the evidence supporting the jury=s verdict is not so weak that the verdict is clearly wrong or manifestly unjust, nor is the verdict against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15. Issues one and two are overruled.

B. Was There Sufficient Evidence of Intent?

Mikel next argues that there was insufficient evidence that he intended to use the Whiteley affidavits to affect the outcome of the Gallardo appeal. His own testimony belies that contention. He was asked:

Q. You were trying to prove his actual innocence, were you not, of Marcos Gallardo?

A. Yes.

 

Q. And B huh B if those affidavits had been signed by Kim and [M.W.] as they had been prepared, if they=d been notarized and actually filed in [this] court, it B it could very well have affected the outcome of that case, could it not?

A. I=m going to assume so, I have no idea, I have no way of knowing, I would hope so.

Q. You would expect so, would you not?

A. I would.

On April 5, 2004, Gallardo filed a motion to extend the time for filing his brief with this court. Mikel testified that he signed Lopez=s name to the pleadings that were filed with this court. Thus, he signed the motion for extension and represented to this court:

Appellant=s counsel has recently discovered new evidence which controverts the State=s original allegations. Appellant needs additional time to file his brief in order to document such new evidence.

The only evidence of Anew evidence@ was the proposed Whiteley affidavits. Mikel represented to this court that additional time was needed to document this new evidence. The only evidence of efforts to document new evidence was the effort to have the Whiteleys sign affidavits.

The only logical conclusion that can be drawn from the evidence is that the Eggerts wanted the Whiteleys to sign the affidavits so that they could be used in some manner in connection with the Gallardo appeal. The evidence was legally and factually sufficient to support the jury=s determination that Mikel intended to use the Whiteley affidavits to affect Gallardo=s appeal. Issues three and four are overruled.

C. Legal Impossibility.

Mikel next argues that the evidence was legally or factually insufficient to establish his intent to affect the Gallardo appeal because the Whiteley affidavits could not have been considered by this court. The State responds that consideration of the Whiteley affidavits by this court was not legally impossible and that the language of Tex. Pen. Code Ann. ' 37.09 (Vernon 2003) makes this immaterial because the State was not required to prove that the affidavits would or could have affected the outcome of the Gallardo appeal.

 

We agree with the State. Section 37.09 required the State to prove that Mikel conspired to make, present, or use a document knowing that it was false and with the intent to affect the course or outcome of the Gallardo appeal. The statute is silent regarding any requirement that the State prove the attempt would have succeeded, and we have found no case recognizing or imputing such a requirement. Moreover, we believe such a requirement is inconsistent with the statute=s plain intent. Our judicial system necessarily relies upon a baseline belief in the sanctity of the process. Any attempt to use fabricated evidence B regardless of the ultimate success of that attempt B is completely inconsistent with not only the administration of justice but also with the integrity of the process. The statute recognizes this by outlawing a wide range of activities whose mere presence could undermine confidence in the judicial system. It would make no sense to say that an attempt to make, present, or use fabricated evidence is any less culpable merely because the attempt was poorly conceived.

The State was not required to prove that this court could have considered the Whiteley affidavits or that those affidavits would have affected the outcome of the Gallardo appeal. The State was merely required to prove that Mikel intended to affect the outcome of the Gallardo appeal. Mikel=s fifth issue is overruled.

D. Was There Sufficient Evidence that Mikel Made, Presented, or Used an Affidavit?

Mikel next argues that the evidence was legally and factually insufficient because the documents given to Kim were not purported affidavits as alleged in the indictment.[5] Mikel=s position is that the documents could not become an affidavit until executed and that there was no evidence that he ever represented to anyone that the documents given to Kim were signed. Mikel=s argument is essentially that there was a fatal variance between the allegations in the indictment and the proof offered at trial. See Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (a variance occurs when a discrepancy exists between the allegations in the indictment and the proof at trial).

 

Only a material variance renders the evidence insufficient. Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). To determine whether a variance violated Mikel=s substantial rights, we must decide if the indictment sufficiently informed him of the charges to allow him to prepare an adequate defense or if prosecuting under the deficient document would subject him to a subsequent prosecution for the same offense. Id.

Mikel did not file a motion to quash his indictment or otherwise object to the language of that instrument. The documents he gave Kim were entitled AAFFIDAVIT OF KIMBERLY WHITELEY@ and AAFFIDAVIT OF [M.W.].@ Both contained signature lines for the affiant and signature lines and oaths for the notary. By the use of the word Apurported,@ the State acknowledged that these documents were not executed. It may have been possible to describe these documents differently and more precisely, but we cannot discern that the indictment prevented Mikel from preparing an adequate defense or would subject him to subsequent prosecution in connection with the documents he gave Kim. Issues six and seven are overruled.

E. Are the Affidavits Work Product?

Section 37.09 prohibits tampering with or fabricating physical evidence, but the statute does not apply Aif the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.@ Section 37.09(b). Mikel argues that the Whiteley affidavits were work product, that the statutory exception applies, and that the evidence was, therefore, legally and factually insufficient.

Section 37.09 proscribes several different methods of tampering with or fabricating physical evidence, but the work-product exception by its terms only applies to records, documents, or things concealed. See Cuadra v. State, 715 S.W.2d 723, 724 (Tex. App.CHouston [14th Dist.] 1986, pet. ref=d) (the work-product exception applies only to concealed documents). Mikel was indicted for conspiracy to make, present, or use false affidavits. The exception is inapplicable, and issues eight and nine are overruled.

F. Is the Evidence that Mikel Knew the Affidavits Were False Sufficient?

 

We have previously found sufficient evidence that Mikel and his father conspired to fabricate evidence. Mikel knew that, to block Gallardo=s deportation, he needed to set aside the conviction for indecency with a child by exposure. Mikel knew that his client had pleaded guilty to this charge and had signed a stipulation establishing his guilt. The evidence is clear that Mikel and his father decided to overcome Gallardo=s admission by having the victim and her mother recant any allegation of wrongdoing. The Whiteley affidavits are completely inconsistent with Gallardo=s prior confession.

Excluding the Eggerts= testimony, no witness testified that either the victim or her mother ever expressed any desire to recant their allegations against Gallardo. Kim=s testimony was exactly the opposite. She testified that Lee Roy Gaitan approached her one day and told her that some lawyers wanted to talk to her daughter about changing her statement and that, if the charges against Gallardo were dropped, the lawyers would make it worth her while. This evidence is legally and factually sufficient to establish that Mikel knew the Whiteley affidavits were false when he gave them to Kim. Issues ten and eleven are overruled.

G. Did the Trial Court Properly Deny Mikel=s Motion for New Trial?

Mikel filed a motion for new trial that was based in part on newly discovered evidence. Peter testified at trial that he had tape-recorded his conversations with Gaitan but that they had been accidentally erased. Peter contended that after the trial he was able to recover part of the recordings and that he prepared a transcript. The trial court held a hearing and ordered Peter to produce all tape or digital recordings of his conversations with Gaitan as well as the digital recording device with memory card and the original analog tape used to create his transcript. Mikel=s motion for new trial was overruled without further hearing or evidence.

 

We review the grant or denial of a motion for new trial under an abuse of discretion standard. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We may not substitute our judgment for that of the trial court, Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992), and credibility of the witnesses is primarily a determination for the trial court. Hoyos v. State, 951 S.W.2d 503, 511 (Tex. App.CHouston [14th Dist.] 1997), aff=d, 982 S.W.2d 419 (Tex. Crim. App. 1998). As finder of fact, the trial court may accept or reject any or all of the testimony given by State or defense witnesses. Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Thus, we are authorized to apply a deferential standard of review to the trial court=s resolution of historical facts and may rely upon implied findings of fact that are supported by the record to uphold the trial court=s ruling, even when the trial court is not faced with expressly conflicting affidavits or testimony. Charles v. State, 146 S.W.3d 204, 206 (Tex. Crim. App. 2004); Villarreal v. State, 79 S.W.3d 806, 811 12 (Tex. App.C Corpus Christi 2002, pet. ref=d).

A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial. Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon 2006). The party who moves for a new trial based on newly discovered evidence must satisfy the following four part test: (1) the newly discovered evidence was unknown or unavailable to the accused at the time of his trial; (2) the accused=s failure to discover or obtain the evidence was not due to a lack of diligence; (3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in another trial. See Keeter v. State, 74 S.W.3d 31, 36 37 (Tex. Crim. App. 2002).

The record does not establish an abuse of discretion. Mikel knew about the recordings at the time of trial because his father testified about them. Whether he exercised due diligence to recover those recordings before trial is inherently a fact issue. Under our deferential standard of review, we cannot second-guess the trial court=s implied finding that he did not do so. Furthermore, the only purpose of the new evidence was to impeach Gaitan=s testimony about his conversations with Peter Eggert. Because impeachment evidence is not Anew evidence@ for purposes of a new trial, this also supports the trial court=s decision. Issue twelve is overruled.

V. Holding

The judgment of the trial court is affirmed.

PER CURIAM

June 7, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

 

[1]Marcos Gallardo pleaded guilty to the offense of indecency with a child by exposure. He filed an application for writ of habeas corpus. The trial court denied that application, and he appealed to this court. We affirmed the trial court. Gallardo v. State, No. 11-04-00049-CR (Tex. App.CEastland, Sept. 30, 2004, no pet.). All references to Gallardo=s appeal are to Cause No. 11-04-00049-CR.

[2]Eggert v. State, No. 11-05-00234-CR (Tex. App.CEastland, June 7, 2007, no pet. h.).

[3]M.W. was Gallardo=s victim; Kim Whiteley was her mother.

[4]In addition to the habeas corpus proceeding, Mikel was representing Gallardo in his deportation proceeding.

[5]The indictment alleged that Mikel conspired with:

Peter Hellmuth Eggert, knowing that an official proceeding was pending, to-wit: Cause Number 11-04-00049-CR in the Court of Appeals for the Eleventh District of Texas, entitled Marcos Gallardo v. State of Texas, made, presented or used a record or document, to-wit: the purported affidavit of Kim Whiteley, or [M.W.], with knowledge of its falsity and with intent to affect the outcome of the official proceeding described above.