Jay S. Boutwell v. State ( 2004 )

  Opinion issued November 18, 2004.

In The

Court of Appeals

For The

First District of Texas

---

NO. 01-03-00563-CR

---

JAY S. BOUTWELL, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 930848

---

MEMORANDUM OPINION

          A jury found appellant, Jay S. Boutwell, guilty of tampering with physical evidence, found the enhancement paragraph true, and assessed punishment at seven years’ confinement. In three issues, appellant contends that the trial court erred by (1) admitting evidence of “extraneous bad acts and irrelevant testimony,”(2) admitting evidence of extraneous bad acts despite the fact that the State failed to provide notice under Rule 404(b) of the Texas Rules of Evidence, and (3) failing to submit a limiting instruction in the jury charge on the burden of proof with respect to extraneous bad acts. Appellant’s fourth issue alleges that the evidence was legally and factually insufficient to support his conviction for tampering with physical evidence. We affirm.

Background

          On November 18, 2002, while conducting surveillance on a convenience store, Houston Police Department Officer Greg Green saw a man approach Tristian Hicks and give him money. Hicks then retrieved something from a baggy stowed in the coin slot of a nearby payphone, and Hicks handed the man the object from the baggy.

          Minutes later, Officer Green saw a tan truck drive into the parking lot and saw Hicks approach the truck. Green testified that he saw the driver of the truck pass money to Hicks; Hicks retrieve a white chunky substance from the baggy in the payphone coin slot; and Hicks pass the white chunky substance to appellant who was sitting in the back passenger seat of the truck. Officer Green alerted the arrest team, and Officer Price immediately approached the truck. Officer Price saw appellant put his hand to his mouth in an apparent attempt to swallow the white chunky substance. Officer Price repeatedly asked appellant to spit out what he was chewing. When appellant refused, Officer Price forced appellant out of the truck and arrested him for “resisting detention.” For ingesting the white substance, appellant was charged with the offense of tampering with evidence.Extraneous Acts

          In his first two issues, appellant contends that 1) during the guilt/innocence phase of trial, the trial court erred in admitting evidence of “extraneous bad acts and irrelevant testimony” and 2) the trial court erred in admitting evidence of extraneous bad acts despite the fact that the State failed to provide notice under rule 404(b) of the Texas Rules of Evidence. We disagree.

          To preserve error, the complaining party must raise the issue in the trial court by a timely and specific request, objection, or motion. Tex. R. App. P. 33.1(a)(1). Appellant failed to timely and specifically object to Price’s testimony relating to “extraneous bad acts and irrelevant testimony” and on the ground that the State failed to provide notice pursuant to Rule 404(b). Accordingly, because appellant failed to make the proper objections on both issues, appellant waived any error. See id.

          We overrule appellant’s first two issues.

Limiting Instruction

          In his third issue, appellant contends that the trial court erred in failing to submit a limiting instruction in the jury charge on the burden of proof with respect to extraneous bad acts.

          When reviewing charge errors, an appellate court must undertake a two-step review: first, we must determine whether error actually exists in the charge; second, if we find error, we must determine whether sufficient harm resulted from the error to require reversal. See Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994).

          In this case, during the guilt-innocence phase of the trial, appellant failed to request an instruction on the burden of proof with respect to extraneous acts and also failed to object to the jury charge. However, appellant argues that the trial court should have, sua sponte, included a limiting instruction, notwithstanding the fact that appellant failed to object to the jury charge. We disagree.

          During the guilt-innocence phase, as opposed to the punishment phase of a trial, a trial court is not statutorily required to instruct a jury, sua sponte, that it may not consider extraneous offense evidence unless it finds the extraneous offenses have been proven beyond a reasonable doubt. See Rodriguez v. State, 137 S.W.3d 228, 231 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing Huziar v. State, 12 S.W. 3d 479, which provides that “in the punishment phase of non-capital cases, a trial court is statutorily required . . . to instruct a jury sua sponte that it may not consider extraneous-offense evidence unless it finds the extraneous offenses have been proven beyond a reasonable doubt.”). Accordingly, because the statutory duty to instruct a jury sua sponte, does not apply to the guilt-innocence phase, we hold that the trial court did not err in failing to give a limiting instruction on the burden of proof with respect to extraneous acts. See id.

          We overrule appellant’s third issue.

Sufficiency

          In his fifth issue, appellant contends that the evidence was legally and factually insufficient to support his conviction for tampering with physical evidence.  

Legal Sufficiency

          When conducting a legal-sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Although a legal-sufficiency analysis entails a consideration of all evidence presented at trial, we may neither re-weigh the evidence nor substitute our judgment for the jury’s. King, 29 S.W.3d at 562. The jury, as trier of fact, is the sole judge of the credibility of witnesses and may believe or disbelieve all or any part of a witness’s testimony. Reece v. State, 878 S.W.2d 320, 325 (Tex. App.—Houston [1st Dist.] 1994, no pet.).

          Appellant was charged by information with the offense of tampering with physical evidence. A person commits the offense of tampering with or fabricating physical evidence when he, “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 Supp. 2005).

          Officer Price testified that, when he approached the truck, appellant put a white chunky substance in his mouth and started chewing. Officer Price testified that appellant turned his head away, chewed, and started to swallow as Officer Price attempted to convince him to spit out the substance. When appellant refused to comply, Officer Price pulled him out of the truck, and eventually handcuffed him. Appellant had a white substance on his lips and acknowledged that there was something in his mouth. Price’s testimony indicated that appellant attempted to destroy the evidence through his continued refusal to spit out the contents in his mouth.

          Once appellant was arrested, Officer Price used four cotton swabs to sample the inside of appellant’s mouth. Officer Price tested one cotton swab, and the test results were positive for cocaine. When the Houston Police Department Crime Lab tested the three other cotton swabs, the test results were also positive for cocaine. In addition, Houston Police Department Officer Mike Baccus testified that he recovered a baggy of crack cocaine from the same payphone coin slot from which Officer Green saw Hicks retrieve a baggy.

          Viewing all of the evidence in the light most favorable to the verdict, we find that the record contains sufficient evidence to support the jury’s verdict finding appellant guilty of the offense of tampering with or fabricating physical evidence. See King, 29 S.W.3d at 562.

Factual Sufficiency

          Appellant further contends that the evidence was factually insufficient. In a factual-sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004).

          In conducting the factual-sufficiency review, we must also employ appropriate deference to the fact finder so that we do not substitute our judgment for that of the fact finder. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004). Our

evaluation should not intrude upon the fact finder’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, 407 (Tex. Crim. App. 1997). What weight to be given contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor. Id. at 408. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented. Id. at 407.

          In this case, appellant argues that the evidence is factually insufficient to support his conviction because his testimony contradicted Officer Price’s testimony. Officer Price testified that he had been in contact with appellant twice before at “crack hot spots,” once believing him to be involved with a “crack rental” and the second time for a traffic stop. Despite this connection, Officer Price testified that he had no particular “animus” toward appellant, while appellant implied that Officer Price had a “vendetta” against him. Appellant testified that he opened and closed his mouth after Officer Price requested that he open his mouth. Officer Price, however, testified that appellant did not comply when continuously asked to spit out the substance. Appellant denied ingesting cocaine, yet he admitted that he has been smoking crack for a long time and has not “gotten himself together.” Finally, appellant argues that he was not able to independently test the swabs containing the substance removed from his mouth because the HPD Crime Lab used all the white substance samples on the cotton swabs. These arguments are attacks on the credibility and weight of the evidence.

          Having viewed all of the evidence in a neutral light, favoring neither party, we find that the evidence supporting appellant’s conviction is not too weak to support the finding of guilt beyond a reasonable doubt; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. As we stated earlier, the fact     finder is entitled to judge the     credibility of the witnesses and may choose to believe all, some or none of the testimony   presented. See Cain, 958 S.W.2d at 407. When the evidence is   conflicting, the jury’s verdict is generally regarded as conclusive. McGarity v. State, 5 S.W.3d 223, 232 (Tex. App.— San Antonio 1999, no pet). We hold that the evidence demonstrates that the jury was rationally justified in finding appellant guilty beyond a reasonable doubt. See Zuniga, 144 S.W. 3d at 481.  

          We overrule appellant’s fifth issue.Conclusion

          We affirm the judgment of the trial court.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

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