Kirk Douglas Bolton v. State

Citation: Not availableDocket: 06-11-00268-CR

Court: Court of Appeals of Texas; November 13, 2012; Texas; State Appellate Court

Original Court Document: View Document

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Kirk Douglas Bolton was indicted for delivering less than one gram of cocaine within a drug-free zone. The case arose from a sting operation led by narcotics investigator John Beasley, who used confidential informant Jason Curtiss to purchase cocaine from Bolton. Curtiss, equipped with marked money and a hidden recording device, contacted Bolton and made the purchase, later reporting that Bolton provided him with crack cocaine. Bolton was convicted by a jury and sentenced to life in prison after admitting to prior felony convictions.

On appeal, Bolton raised five points: 
1. Insufficient corroboration of Curtiss’s testimony.
2. General insufficiency of the evidence supporting the guilty verdict.
3. An improperly amended indictment that alleged delivery of methamphetamine instead of cocaine.
4. The error of allowing an alternate juror to deliberate with the jury.
5. Limiting cross-examination of the confidential informant.

The appellate court affirmed the trial court's judgment, concluding:
1. The evidence sufficiently corroborated Curtiss’s testimony through circumstantial evidence.
2. The evidence supported the jury's verdict.
3. The indictment was properly amended to reflect cocaine delivery.
4. Bolton did not preserve the issue regarding the alternate juror for appeal.
5. The trial court acted within its discretion in limiting the cross-examination of Curtiss.

The court referenced Article 38.141 of the Texas Code of Criminal Procedure, emphasizing the statutory requirement for corroboration of testimony from covert agents, noting that the standards for evaluating such corroboration are distinct from those applied to accomplice testimony.

A challenge regarding insufficient corroboration differs from a challenge to the overall sufficiency of evidence supporting a verdict. Under Article 38.141(a) of the Texas Code of Criminal Procedure, the testimony of a covert witness must be excluded when assessing corroborating evidence. The remaining evidence must demonstrate a connection between the defendant and the offense, adhering to a low "tends-to-connect" standard. Each case is evaluated based on its unique facts, where even minor details may suffice for corroboration, though merely showing the defendant's presence at the crime scene is inadequate.

In reviewing the evidence against Bolton, excluding Curtiss' testimony, the following points were noted: Curtiss was a cooperative informant; Beasley conducted random searches of Curtiss and confirmed he was searched after the alleged drug transaction; Beasley provided Curtiss with $100 to buy crack cocaine; Curtiss approached Bolton about purchasing drugs, and Bolton indicated he likely had some; afterward, Bolton entered and exited Curtiss' apartment; Curtiss then transferred a package of crack cocaine to Beasley.

Bolton contended that video evidence did not show any drug delivery or money exchange, and that no marked bills were recovered from him. Additionally, Beasley's report did not confirm whether Curtiss was searched prior to the transaction. Despite these arguments, the evidence presented was deemed sufficient to connect Bolton to the drug transaction, as established by direct testimony from Beasley, who identified Bolton at the scene and detailed the sequence of events. The law requires only some evidence to establish a connection to the alleged offense, which was satisfied in this case.

Curtiss' testimony, although individually insufficient, combined with other evidence, allows rational jurors to connect Bolton to the offense of delivering less than one gram of cocaine. The review of legal sufficiency assesses evidence in favor of the jury’s verdict, determining if any rational jury could find the essential elements of the offense beyond a reasonable doubt. Bolton argues that the evidence is generally insufficient, citing the lack of physical proof in video recordings and claiming that Curtiss’ testimony is self-serving due to his motivations related to his wife's legal issues. However, the jury is tasked with evaluating the credibility of witnesses and can accept Curtiss' account despite Bolton's objections. The evidence was found to be legally sufficient for a rational jury to infer Bolton's delivery of cocaine.

Regarding the indictment, Bolton asserts that the original charge of methamphetamine was not properly amended to cocaine, which he claims results in a fatal variance. The record shows that the State motioned to amend the indictment, the trial court granted this motion, and Bolton did not object or request a continuance. The indictment was effectively amended when the trial court physically altered the document, as prescribed by Texas law. Thus, the court finds no merit in Bolton's argument concerning the indictment.

A change affecting the substance of the charge against the accused is not subject to a harm analysis under Article 28.10, which mandates strict adherence to its directions. The court has established that physical interlineation on the original indictment is a permissible method for amending it. The State can present an amended photocopy of the original indictment for the trial court's approval, which, upon approval, must be incorporated into the record with the defense's knowledge. In Bolton's case, although the original record lacked a copy of the amended indictment at the time of his brief, a properly interlineated indictment was filed later, leading to the conclusion that the amendment was valid, thus overruling Bolton's point of error.

Regarding the alternate juror's presence during deliberations, Bolton argued that this was improper. The trial court had informed the alternate juror of his non-participatory role while allowing him to observe. While Texas law allows for the presence of alternate jurors, Article 36.22 prohibits anyone from being with the jury during deliberations. Bolton did not object to the alternate juror's presence in a timely manner, resulting in the issue being waived under Trinidad, hence it was not preserved for review.

Lastly, Bolton contended that the trial court erred by limiting his cross-examination of the confidential informant, Curtiss, relating to alleged bias. Bolton claimed this bias stemmed from a prior incident involving Curtiss' wife and unspecified complaints from individuals associated with Hidden Bend Apartments. However, the issue was not preserved for appeal because Bolton did not provide an offer of proof detailing the specific testimony he sought to introduce, limiting the court's ability to assess any potential error.

Limiting the cross-examination of Curtiss regarding unspecified complaints was upheld for appellate review. Bolton's attempt to introduce allegations of a prior sexual proposition involving Curtiss’ wife lacked supporting witness testimony and affirmative evidence. While cross-examination can reveal bias or challenge a witness’s credibility, the trial court has broad discretion to set limits. Under an abuse of discretion standard, the trial court’s decision to exclude the testimony was affirmed, as it determined that the prejudicial impact outweighed any potential relevance, per Rule 403 of the Texas Rules of Evidence. The court concluded that Bolton’s inquiries would merely constitute a fishing expedition lacking probative value. Therefore, the appellate court found no abuse of discretion and affirmed the trial court's judgment.