Maurice George Noel v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-93-027-CR

MAURICE GEORGE NOEL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 19537CR

O P I N I O N

Maurice Noel appeals his conviction for aggravated assault. A jury found him guilty and assessed punishment, enhanced by one prior felony conviction, at eighteen years in prison. The trial court entered an affirmative finding that Noel used and exhibited a deadly weapon during the commission of the offense. We affirm the judgment of conviction.

Admission of Evidence Points

In point one Noel contends that the trial court erred in admitting the gun, clip, ammunition, and knife into evidence because the State failed to establish a proper chain of custody.

Prior to trial Noel filed a motion to suppress all items seized during the search of his pickup truck at the time of his arrest, alleging that the warrantless search was conducted without probable cause. The specific items seized were not mentioned in the motion. Subsequently, at a pre-trial hearing, the victim testified that the gun, clip, ammunition, and knife were all in her house when officers from the Sheriff's Department arrived in response to her domestic disturbance complaint on January 18, 1992. According to the victim, the officers had her consent to remove any evidence found in the house. John Aultman, an officer with the Ellis County Sheriff's Department, testified that he received the gun, with the clip and ammunition, from the victim when they arrested Noel. Tommy Parks, who also responded to the domestic disturbance complaint, testified that he removed the knife from Noel's belt when he was arrested at the house. Parks gave the knife to Aultman. Aultman testified that the gun, clip, ammunition, and knife remained in his exclusive care, custody, and control until he put them in the evidence locker. Although Aultman tagged each item of evidence before putting it in the locker, they were not on the weapons when he was presented with them at trial. Aultman testified, however, that the officer who retrieved them from the locker would have logged them into a sealed evidence bag. Jeff Bryant, the Criminal Investigation Division officer assigned to Noel's case, testified that the weapons were retrieved from the evidence locker by James Whitley of the Criminal Evidence Section. Bryant also testified that he brought the weapons, in the sealed evidence bag, from the evidence locker at the Sheriff's Department to court on the day of trial. According to Bryant, while the weapons were in the Sheriff's Department, they remained in the exclusive care, custody, and control of the Department.

The only objection offered at the conclusion of the hearing was that the proper chain of custody of the gun, clip, ammunition, and knife had not been established. Noel argued that "it's obvious that they've been tampered with somewhere along the way, because those tags don't exist." In response to the court's request, defense counsel declined to present any evidence or testimony, and the court denied the motion to suppress.

Although Whitley did not testify at the hearing, there is no affirmative evidence in the record suggesting that removal of the evidence tags was the result of tampering. Minor theoretical breaches in the chain of custody will not affect admissibility in the absence of affirmative evidence of tampering. // Further, Rule 901(a) of the Texas Rules of Criminal Evidence provides, "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." // As long as the trial court believed that a reasonable juror could find the evidence has been authenticated or identified, the court should admit the evidence. // We consider the demonstrated chain of custody sufficient to establish that degree of security and evidentiary integrity justifying admission of the exhibits. // Accordingly, we overrule point of error one.

In point three Noel contends that the trial court erred in sustaining the State's hearsay objection to the admission of a "package insert" into evidence. At the guilt-innocence phase of the trial, the defense attorney called a pharmacist to testify concerning medications prescribed to Noel prior to the commission of the offense. When a package insert containing warnings about the contraindications of Lithium Carbonate was offered into evidence, the State objected that it was hearsay and the court sustained the objection. However, Noel made no informal bill of exception or offer of proof to preserve his complaint regarding the exclusion of the package insert. // According to Rule 74(f) of the Texas Rules of Appellate Procedure, "If complaint is made of the improper admission or rejection of evidence, the substance of such evidence so admitted or rejected shall be set out with references to the pages of the record where the same may be found." // Because the offered exhibit is not contained in the appellate record, nothing is preserved for review. As a result, we overrule point of error three.

Sufficiency of the Evidence Points

In points two, six, eight, and nine, Noel complains that the evidence is insufficient to support his conviction. In reviewing the legal sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. // A person commits aggravated assault if the person intentionally or knowingly threatens another, including the person's spouse, with imminent bodily injury and the person uses a deadly weapon. //

In point two Noel contends that the evidence is insufficient to prove that the gun admitted into evidence was ever in his possession. By this we assume that Noel is challenging the sufficiency of the evidence to support the aggravating element of the offense use of a deadly weapon. At trial the victim testified that Noel shoved the gun in her shoulder and told her that "he was going to blow my fucking shoulder off." She also testified that he later shoved the gun into her mouth and said "he was going to blow my fucking head off." Viewed in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt that Noel used a deadly weapon during the commission of the assault. Therefore, we overrule point of error two.

In points eight and nine Noel contends that the evidence is insufficient to prove Noel's knowledge or intent in connection with the offense. From the acts and events described by the victim, the jury was entitled to infer that the actions taken by Noel were done intentionally or knowingly. // The victim testified that Noel entered her house with a gun and threatened to kill her. According to the victim, Noel informed her that he could shoot her "either inside in front of the kids or outside." He continued to threaten to kill her as he held the gun to her shoulder, chest, inside her mouth, and beside her head. When she begged to give her children one more hug, he refused. The victim also testified that he stuck a knife into her nostril and threatened to cut her nose. Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt that Noel acted intentionally or knowingly. Accordingly, we overrule points of error eight and nine.

In point six Noel contends that the evidence is insufficient to disprove that he was insane at the time of the offense. The correct standard of review is whether, after considering all the evidence relevant to the issue, the jury's verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. // Reversal is appropriate only if no rational trier of fact could have determined that Noel failed to prove his insanity defense by a preponderance of the evidence. // The medical testimony was conflicting. Noel called Patti Merrill, a licensed chemical dependency counselor, to testify in support of his insanity defense. She testified that at one time Noel "appeared to get somewhat angry in the office, and his voice changed. And after the session, I asked him if he recalled things he said to me, and he did not recall." On cross-examination the prosecutor asked, "At the time when his voice changed and he took on this other personality, could he tell the difference between right and wrong?" Merrill responded, "I'm not sure." Noel testified that he could not remember the events surrounding the assault because he was suffering from a "black-out" spell. Rick Benton, a pharmacist called by Noel, testified that the combination of the prescription drugs Lithium and Lasix could affect the mental capacities and cause black-out spells. Clay Griffith, a psychiatrist called by the State as an expert witness, testified that a person suffering from such a black-out would be unconscious. In his opinion, based on his examination of the defendant, Noel did not have a severe mental disease or defect on January 18, 1992. In light of this evidence concerning Noel's sanity, we conclude that a rational trier of fact could have found that Noel did not prove his defense of insanity by a preponderance of the evidence. //

Jury Instruction Points

In points four, five, and seven, Noel complains of error in the court's charge to the jury. However, Noel never objected to the charge at trial. If an error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is "calculated to injure the rights of the defendant" in other words, an error which has been properly preserved by objection will call for reversal as long as it is not harmless. // On the other hand, if no proper objection was made at trial and the accused must claim that the error was "fundamental," he will obtain a reversal only if the error is so egregious and created such harm that he "has not had a fair and impartial trial" in short, "egregious harm." //

In point four Noel contends that the trial court erred in failing to instruct the jury that the State had the burden of proof. // After the trial court defined the elements of aggravated assault, the court specifically instructed the jury as follows:

Now, if you find from the evidence beyond a reasonable doubt, that on or about the 18th day of January, 1992 in Ellis County, Texas, the defendant, Maurice George Noel, did intentionally or knowingly threaten Darcy Ann Noel with a deadly weapon, to wit, a firearm, by placing the firearm to her head, in her mouth and against her shoulder at a time and place in which the firearm was loaded and in doing so the said Maurice George Noel intentionally or knowingly threatened the said Darcy Ann Noel with imminent bodily injury, you will find the defendant guilty of aggravated assault, as charged in the indictment.

(Emphasis added). The court also instructed the jury, "Unless you so find or if you have a reasonable doubt thereof, you will find the defendant "Not Guilty." Because the court's charge to the jury correctly instructed the jury that it must find the elements of aggravated assault "beyond a reasonable doubt," we find Noel's complaint regarding the State's burden of proof without merit. Accordingly we overrule point of error four.

In point five Noel contends that the trial court erred in failing to instruct the jury that the State had the burden to disprove the defense of insanity beyond a reasonable doubt. Insanity is an affirmative defense. // In his argument and authorities under point five, Noel's attorney ignores authority that is directly on point. According to section 2.04(d) of the Texas Penal Code, "If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence." // After the trial court defined the affirmative defense of insanity, the court instructed the jury, "The burden of proof, as to this affirmative defense, is upon the defendant to prove by a preponderance of the evidence." The court then defined "preponderance of the evidence" and, in the application paragraph, correctly placed the burden of proving the affirmative defense on the defendant. Finding no error in the charge related to the burden of proof on the insanity defense, we overrule point of error five.

In point seven Noel contends that the trial court erred in failing to instruct the jury on the issue of involuntary intoxication. It is well settled that where an issue is raised by the evidence, the accused is entitled to have the matter submitted to the jury. // Involuntary intoxication is a defense to criminal culpability when it is established that the defendant has exercised no independent judgment or volition in taking the intoxicant. // If there is evidence that intoxication is the result of fraud, force or trickery, the accused is entitled to an instruction. // However, Noel has failed to point to any evidence in the record which supports a reasonable inference that his intoxication was not voluntary. As a result, nothing is presented for review. // Therefore, we overrule point of error seven.

Other Points

In point ten Noel contends that the prior conviction used for enhancement at the punishment phase of the trial was void. According to Noel, his Indiana conviction for robbery was void because his twelve-year sentence exceeded the maximum punishment authorized by the Indiana Penal Code. At the punishment phase of the trial, the State introduced a pen packet from the Indiana conviction, a fingerprint card, and the testimony of a fingerprint expert to prove the prior conviction. After the removal of a cover sheet, which the defense attorney characterized as unnecessary and prejudicial, defense counsel specifically stated that he had no objection to the introduction of the pen packet and fingerprint card. The failure to object at trial to the introduction of proof of an allegedly infirm prior conviction precludes a defendant from thereafter attacking the admissibility of that prior conviction. // Because Noel failed to raise an objection to the admission of the prior conviction into evidence, we overrule point of error ten.

In point eleven Noel contends that the trial court erred in sentencing him to eighteen years in prison because the jury's verdict could be interpreted as assessing a ten-year sentence. At the punishment phase of the trial the jury returned a verdict finding that the allegations in the enhancement paragraph of the indictment were "true" by completing that verdict form with a handwritten assessment of punishment at confinement in the penitentiary for "18" years and a fine of " 0 " dollars. According to Noel, the presiding juror's penmanship creates an ambiguity in the jury's verdict. Noel argues that "a smaller but similar loop at the top of the zero" on the portion of the handwritten verdict indicating the fine suggests that, because the figure indicating the term of imprisonment "has a larger more distinct loop," the second digit of that figure "could also have been intended as a zero." Even assuming there is an ambiguity in the handwritten punishment verdict returned by the jury, the reading of the verdict on punishment and the polling of the jury, if requested, is not contained in the statement of facts on appeal. // A notation in the trial court's docket sheet, however, indicates that the jury assessed punishment at "18" years in prison. In addition, the transcript includes a judgment recital stating that "after having deliberated, [the jury] returned into Court the verdict shown under punishment above [18 years]." Because the record is otherwise silent, the judgment recital is presumed to be correct. // Absent a sufficient statement of facts, which Noel has the burden of providing to this court, there is nothing to rebut the presumption of regularity. // Accordingly we overrule point of error eleven.

In point twelve Noel contends that the trial court erred in impaneling a jury that included only one Native-American juror. Noel's argument under point twelve appears to be a Batson challenge based on the discriminatory exclusion of Native-Americans from the jury. // A Batson objection, however, must be made before the jury is impanelled. // No such objection was made in this case. As a result, we overrule point of error twelve.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed December 22, 1993

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