Noil, William Charles v. State

• Court: Court of Appeals of Texas
• Decided: January 12, 2006
• Docket: 14-05-00100-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed January 12, 2006

Affirmed and Memorandum Opinion filed January 12, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00100-CR

WILLIAM CHARLES NOIL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 984,713

M E M O R A N D U M   O P I N I O N

Appellant entered a plea of not guilty to the offense of delivery of less than one gram of cocaine.  He was convicted and the jury assessed punishment at eighteen months in a state jail facility.  In four issues, appellant contends the trial court erred in limiting his cross-examination of two police officers, and the evidence is legally and factually insufficient to support his conviction.  We affirm.

Background

In April, 2004, in response to citizen complaints, the Houston Police Department=s Narcotics Division was conducting an undercover operation to arrest narcotics dealers.  Officer Richard Salter, working undercover, drove into a neighborhood in south Houston and saw a woman standing outside a convenience store who appeared to be a prostitute.  When the woman approached Officer Salter=s vehicle, Salter told her he was interested in purchasing cocaine.  Salter gave the woman twenty dollars and the woman walked away from the car.  Salter advised other officers via radio that he had given the woman twenty dollars for cocaine. 

Officer Griff Maxwell, also working undercover, saw Salter make contact with the woman.  After she walked away from Salter, Maxwell saw her turn west and walk down the street.  Maxwell testified that he knew she was walking toward a parking lot where drug dealers gather, so he drove to that location to maintain surveillance.  Maxwell saw the woman approach appellant.  Appellant gave the woman something, which she immediately put in her mouth.  As the woman began to walk back to Salter=s vehicle, Maxwell advised him on the radio that she was returning.

When the woman returned to Salter=s vehicle, she sat in the passenger seat and spit a rock of cocaine from her mouth and placed it on the vehicle=s console.  After the woman left his vehicle, Salter advised a uniformed officer to arrest the individuals involved.  The officers arrested appellant, but the woman drove away before she could be apprehended. 

Confrontation Clause

In issues one and four, appellant contends the trial court erred in limiting his cross-examination of Officers Salter and Maxwell.  Appellant contends the trial court erred in sustaining the State=s objections to his cross-examination of the officers and in asking his counsel not to repeat questions.  Appellant, however, failed to object to the trial court=s rulings or requests to move the cross-examination to new topics.

The Confrontation Clause provides criminal defendants with the right to physically face those who testify against them and the right to conduct cross‑examination.  Delaware v. Fensterer, 474 U.S. 15, 18B19, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985).  A[T]he Confrontation Clause guarantees an opportunity for effective cross‑examination, not cross‑examination that is effective in whatever way, and to whatever extent, the defense might wish.@  Id.; 474 U.S. at 20, 106 S.Ct. at 294.  To preserve error on Confrontation Clause grounds, an objection must be made at trial as soon as the basis for such objection becomes apparent.  Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000).  The purpose of requiring a timely and specific objection at trial is to inform the trial court of the specific basis of such objection and give the court the opportunity to rule on the objection at the time the alleged error occurs.  Aguilar v. State, 26 S.W.3d 901, 905B06 (Tex. Crim. App. 2004).  In addition, to preserve for review the issue of whether appellant=s cross‑examination of a witness was unduly limited, appellant must show by bill of exceptions or otherwise what questions he wished to raise and the responses he expected.  See Easterling v. State, 710 S.W.2d 569, 578 (Tex. Crim. App. 1986).  In this case, appellant made no offer of proof or bill of exceptions showing the testimony that he was attempting to elicit.  Because appellant failed to advance his Confrontation Clause objection at the time the trial court limited his cross-examination of the witnesses, his complaint is not preserved for review. See Tex. R. App. P. 33.1(a).  Appellant=s first and fourth issues are overruled.

Sufficiency of the Evidence

In his second and third issues, appellant contends the evidence is legally and factually insufficient to support his conviction.  Appellant contends the evidence is insufficient because Officer Maxwell did not see what appellant gave to the woman, nor was appellant found in possession of money or drugs.

When conducting a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a 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, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).  The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the strength of the evidence.  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  When conducting a factual sufficiency review, we view all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  There are two ways in which the evidence may be factually insufficient:  (1) if the evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; and (2) weighing both evidence supporting the verdict and evidence contrary to the verdict, the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id. at 484B85.  In conducting a factual sufficiency review we must give appropriate deference to the jury=s findings, and we may not substitute our judgment for that of the jury.  Id. at 482.

A person commits the offense of delivery of a controlled substance if he knowingly delivers or possesses with intent to deliver a controlled substance.  Tex. Health & Safety Code Ann. ' 481.113 (Vernon Supp. 2005).  In this case, the State presented evidence that appellant gave the woman an item, which she immediately put in her mouth.  The officers maintained surveillance on the woman until she returned to Officer Salter=s vehicle.  After getting into Salter=s vehicle, the woman spit cocaine from her mouth.  Viewing the evidence in a light most favorable to the verdict, we find the evidence was legally sufficient for a rational jury to determine that appellant delivered the cocaine to the woman who, in turn, delivered it to Officer Salter. 

Appellant did not present evidence in his defense, but he points to evidence he considers exculpatory.  First, appellant states Officer Maxwell did not see the item appellant gave to the woman.  The officers testified, however, that they maintained surveillance on the woman until she reached Salter=s vehicle.  At that time, she spit the cocaine from her mouth.  There is no evidence that appellant gave her something other than cocaine, or that she substituted cocaine for the item appellant gave her before she reached Salter=s vehicle.  Appellant also contends the fact that the officers did not find appellant in possession of the twenty dollars is evidence that a drug transaction did not take place between him and the woman.  Officer Maxwell testified that in his experience as a narcotics officer, suspects will often hide money immediately before being arrested to avoid a connection to marked money.  Viewing the evidence in a neutral light, we find the evidence was not so obviously weak as to undermine confidence in the jury=s determination of guilt beyond a reasonable doubt, or so greatly outweighed by contrary proof as to indicate that the beyond-a-reasonable-doubt standard could not have been met.  Therefore, the conviction is supported by factually sufficient evidence.  Appellant=s second and third issues are overruled.

The judgment of the trial court is affirmed.

_____________________________

John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed January 12, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

Do Not Publish C Tex. R. App. P. 47.2(b).