Hilliard Dimingo Bouldin v. The State of Texas--Appeal from 21st District Court of Washington County

Opinion issued July 12, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-01010-CR

NO. 01-05-01035-CR

HILLIARD DOMINGO BOULDIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

Washington County, Texas

Trial Court Cause No. 14,329, Counts I and II

MEMORANDUM OPINION

Appellant, Hilliard Domingo Bouldin, appeals from a judgment convicting him of two felony counts of delivery of a controlled substance. Tex. Health & Safety Code Ann. 481.112(c) (Vernon 2006) (delivery of cocaine, 1 gram-4 grams); Tex. Health & Safety Code Ann. 481.112(d) (Vernon 2006) (delivery of cocaine, 4 grams-200 grams). Appellant pleaded not guilty to the jury that heard both cases in a single trial. The jury found him guilty of both offenses, and the trial court sentenced him to ten years' confinement for each offense, to run concurrently. In two issues, appellant contends that the trial court erred by admitting, over his hearsay objection, a document marked as Exhibit 9, and by granting the confidential informant's motion invoking her Fifth Amendment privilege. We affirm.

Background In December 2003, an officer assigned to the Independence Narcotics Task Force in Washington County, Texas, entered into a confidential source agreement with a new informant. The informant told him that her name was Dawn McDaniel. (1) She printed and signed the name Dawn McDaniel on a Task Force document entitled "Confidential Source--Code of Conduct." She also provided her Social Security Number to the officer, who used the number to run a criminal background check on Dawn McDaniel.

After the Department of Public Safety approved her, the informant began purchasing narcotics under the supervision of Task Force officers. In March 2004, in a hotel room in Brenham, Washington County, Texas, the informant met appellant, who sold her cocaine on two occasions on the same day. Task Force officers observed the transactions on a television monitor in an adjacent hotel room. The transactions were also recorded on videotape. The substances that appellant sold the informant were later determined to be 1.53 grams of cocaine and 5.88 grams of cocaine. Later that month, the informant positively identified appellant from an array of six photographs as the person who sold her the substances.

At trial, the State introduced the testimony of the two officers who observed the transaction in the adjacent room and the laboratory chemist who tested the cocaine. The State played for the jury the videotapes of the two transactions. Over appellant's hearsay objection, the trial court admitted Exhibit 9, which states: "Confidential Source--Code of Conduct . . . I, Dawn McDaniel, understand . . . ." The document then described the manner in which the informant was expected to conduct herself while working for the Task Force. The State also introduced into evidence two other documents, identified as "Informant Payee Receipts," that were each signed by "Dawn Jones McDaniel" on March 5, 2004, and showed that she was paid funds in exchange for her information that led to a "controlled purchase." Appellant did not object to the introduction of the Payee Receipts.

At trial, the State attempted to call Dawn McDaniel to testify. She invoked her Fifth Amendment right against self-incrimination, stating that she had been arrested and charged with possession of a controlled substance subsequent to her work for the Task Force, and that her testimony might adversely affect her defense against that charge. In a written notice to the trial court of McDaniel's intent to invoke her Fifth Amendment privilege, McDaniel's attorney referred to her as "Dawn M. Jones," not Dawn McDaniel. At a hearing held outside the presence of the jury, McDaniel stated that she did not want to testify because she was "afraid because of the things that are asked of me in this case can incriminate me in the case I have pending [in Brazos County], because of the information that I have--things that I have to say here will be impending on the case that I have there." Appellant asserted that the informant could not selectively assert her Fifth Amendment privilege, and that she could either answer all questions, or none of them. The trial court sustained McDaniel's right not to testify, and McDaniel did not testify before the jury.

Hearsay

In his first issue, appellant contends that the trial court erred by admitting into evidence Exhibit 9, the "Confidential Source-Code of Conduct," asserting that the document was inadmissible hearsay. Assuming, without deciding, that it was error to admit Exhibit 9 over appellant's hearsay objections, we conclude that the error, if any, was harmless.

To determine whether the erroneous admission of evidence merits reversal, we look to Rule 44.2(b) of the Rules of Appellate Procedure, governing non-constitutional error in criminal cases. See Tex. R. App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001). The judgment must be reversed if the error affected the accused's substantial rights. See id. Error affects a substantial right when it has a substantial and injurious effect or influence in determining the jury's verdict. Johnson, 43 S.W.3d at 3-4.

Appellant contends that the admission of State's Exhibit 9 was harmful because the jury relied on it to identify Dawn McDaniel as the informant named in the indictment. The State responds that even if State's Exhibit 9 was hearsay, its admission was harmless error, as there was other evidence that identified Dawn McDaniel as the informant to whom appellant had transferred the cocaine.

The record shows that Dawn McDaniel never testified before the jury. The State established that she was the person to whom appellant delivered the cocaine by introducing State's Exhibits 7 and 8. State's Exhibits 7 and 8 were photocopies of pay vouchers from the Independence Narcotics Task Force that were signed by Dawn McDaniel. Appellant did not object to State's Exhibits 7 and 8 at trial nor does he complain about these admissions on appeal. Furthermore, an officer with the Task Force stated that when he met with this informant, she identified herself as Dawn McDaniel. The officer also stated that he confirmed that the informant's real identity was Dawn McDaniel through her criminal history and the Social Security Number that she provided him. In addition, a second officer who testified at trial identified Dawn McDaniel as the informant seen on the videotapes that recorded the cocaine transfer between appellant and the informant. The videotapes were entered into evidence as State's Exhibits 1, 1-a, 2, and 2-a without objection. Even excluding State's Exhibit 9, the record shows testimony and exhibits that establish McDaniel as the person to whom appellant delivered cocaine.

The State's attorney referred to State's Exhibit 9 in its closing argument, as follows,

I urge you to look at State's exhibit 9, and you will have it to take back with you to look at during your deliberations. It opens: I Dawn McDaniel understand that while I am cooperating and assisting the Task Force, I agree to the following. . . . And then at the end she signed her name, Dawn McDaniel.

However, the prosecutor went on to state that "the testimony of [the police officer] who testified that her identity was checked through criminal history and a social security number and approved by his supervisor, that that's who her identity was beyond a reasonable doubt." The State's attorney therefore also relied on evidence other than State's Exhibit 9 to show the identity of McDaniel as the person to whom the cocaine was delivered.

Although State's Exhibit 9 contained Dawn McDaniel's signature and the State emphasized its relevance in its closing arguments, we cannot conclude that State's Exhibit 9 had a substantial and injurious effect or influence in determining the jury's verdict as required by Johnson, due to the other evidence that confirmed for the jury Dawn McDaniel's identity as the complaining witness. See Johnson, 43 S.W.3d at 3-4. We hold that the error, if any, in admitting State's Exhibit 9 was harmless. We overrule appellant's first issue.

Confidential Informant's Fifth Amendment Privilege

In his second issue, appellant contends that the trial court erred by granting the informant's motion asserting her Fifth Amendment privilege. Specifically, he asserts that the informant "could not withhold all evidence demanded because she claimed some of it was protected." He further asserts that the "Confidential Source--Code of Conduct" agreement constituted a waiver of the informant's Fifth Amendment privilege in that she agreed that

I understand that I have rights guaranteed under the law.

I understand due to the need for safety and credibility, I have relinquished some of my rights.

Finally, he states that the informant's testimony would be vital to his defense because her filing with the trial court used the name Dawn M. Jones, not Dawn McDaniel.

Although the State has not asserted that error was waived, as a preliminary matter, we determine whether appellant's trial objection preserved the right to complain about the trial court's admission of this evidence. See Rezac v. State, 782 S.W.2d 869, 871 (Tex. Crim. App. 1990) (holding that court of appeals errs if it addresses issues not preserved by proper presentation to trial court). Rule 33.1 of the Rules of Appellate Procedure requires that a party state "the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex. R. App. P. 33.1(a)(1)(A). An appellant's argument on appeal must comport with his argument at trial. See Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (holding that appellant failed to preserve any error regarding victim-impact evidence's admission because his objection at trial did not comport with complaint raised on appeal).

At the hearing on the informant's assertion of her right against self-incrimination, appellant did not assert any of the arguments he presents to this Court. Instead, his trial counsel merely asserted that "it's more or less an all or nothing type of situation. She can't selectively plead the Fifth on questions that she doesn't want to answer." Because appellant's argument on appeal was never presented to the trial court, we hold that any error is waived. See id. We overrule appellant's second issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Taft, Jennings, and Alcala.

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

1. According to the officer, prospective informants are asked to fill out a packet, "kind of like an application, name, date of birth, and criminal history." The documents were sent to the Department of Public Safety, the agency that controlled the Task Force, and the Department either approved or disapproved of the informant after a background check.