Summary
explaining that when the confidential informant's testimony is relevant only to the issue of establishing probable cause for a search warrant, and the informant can offer no testimony about the actual offense, then the informant's identity need not be revealed
Summary of this case from Harris v. StateOpinion
No. 2-04-412-CR
Delivered: March 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from the 396th District Court of Tarrant County.
Panel A: LIVINGSTON, HOLMAN, and GARDNER, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
Introduction
A jury convicted Appellant Mario A. Parks of possession with intent to deliver four grams or more but less than two hundred grams of cocaine. The trial court sentenced him to twenty-five years' confinement. In two points on appeal, Appellant argues that the trial court abused its discretion by refusing to compel the State to identify a confidential informant and by allowing a State's witness to review an undisclosed offense report while testifying. We affirm.Background
Appellant does not contest the sufficiency of the evidence. We will therefore limit our review of the evidence to that necessary to put Appellant's complaints into context. A confidential informant told Arlington Police Detective Sharon Hykel that Appellant was dealing cocaine from his residence. Detective Hykel caused the confidential informant to make four undercover buys from Appellant; all four tested positive for cocaine. As part of her investigation, Detective Hykel determined that the residence's water service was maintained in Appellant's name, and that each of three vehicles at the residence was registered in Appellant's name. The confidential informant identified Appellant from his driver's license photo. Based on the confidential informant's information and the results of the undercover buys, Detective Hykel obtained a search warrant for Appellant's residence. When Detective Hykel and other officers executed the warrant at Appellant's residence, they found 8.19 grams of crack cocaine and 18.33 grams of powder cocaine in sixty-seven baggies concealed in false-bottomed soda cans, plus seven baggies of marijuana concealed in a box of crackers. Detective Hykel testified that crack cocaine and powder cocaine were found in "dealer amounts" and packaged for distribution. The police also found $3,951, mostly in ten- and twenty-dollar bills, and two guns in the residence. The only people in the residence when Detective Hykel executed the search warrant were Appellant, a woman, and an infant.Confidential Informant
In his first point, Appellant argues that the trial court abused its discretion by refusing to compel the State to reveal the identity of the confidential informant. Rule of evidence 508(a) generally provides the State "a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation." TEX. R. EVID. 508(a). There are, however, three exceptions to this privilege. Id. at 508(c)(1)-(3). Appellant relies on the second exception, which provides that if the informantmay be able to give testimony "necessary to a fair determination . . . on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony." Id. at 508(c)(2).Under this exception, the defendant bears the initial burden of showing that the confidential informant may be able to provide testimony necessary to a fair determination of guilt or innocence. Bodin v. State, 807 S.W.2d 313, 318 (Tex.Crim.App. 1991). To be "necessary," the informant's testimony must "significantly aid" in the determination of guilt or innocence. Id.; Olivarez v. State, 171 S.W.3d 283, 292 (Tex.App.-Houston [14th Dist.] 2005, no pet.). However, because the defendant may not actually know the nature of the informant's testimony, all that is required to satisfy this threshold burden is a "plausible showing" of the potential importance of the testimony. Anderson v. State, 817 S.W.2d 69, 72 (Tex.Crim.App. 1991); Long v. State, 137 S.W.3d 726, 732 (Tex.App.-Waco 2004, pet. ref'd). Nevertheless, mere conjecture or speculation is insufficient, and the mere filing of a motion to disclose will not compel disclosure. Bodin, 807 S.W.2d at 318; Washington v. State, 902 S.W.2d 649, 656 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). We review a trial court's ruling on a motion to disclose the identity of a confidential informant for an abuse of discretion. Sanchez v. State, 98 S.W.3d 349, 356 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Several cases have held that a defendant can satisfy the initial burden by showing that the confidential informant was an eyewitness to the search or participated in the transaction for which the defendant was indicted. See, e.g., Anderson, 817 S.W.2d at 72; Bodin, 807 S.W.2d at 318; Sanchez, 98 S.W.3d at 356. In these cases, the informant's testimony was deemed potentially "necessary" because the informant had first-hand knowledge of the events upon which the defendant was to be adjudged guilty or innocent. Anderson, 817 S.W.2d at 72. There is a clear distinction, however, between these cases and those where the informant's information was used only to establish probable cause for the search warrant. When the confidential informant's testimony is relevant only to the issue of probable cause, and the informant can offer no testimony about the actual offense, then the defendant cannot make a "plausible showing" that the testimony would "significantly aid" in the determination of guilt or innocence. See, e.g., Olivarez, 171 S.W.3d at 292-93; Long, 137 S.W.3d at 733; Washington, 902 S.W.2d at 657; Murray v. State, 864 S.W.2d 111, 118 (Tex.App.-Texarkana 1993, pet. ref'd). In such cases, disclosure is not required, and the trial court need not order an in camera hearing. Washington, 902 S.W.2d at 657. In this case, Appellant filed a motion to compel disclosure of the confidential informant, stating the disclosure was required because the informant participated in the alleged offense, was present at the time of the alleged offense, was the proximate cause of Appellant's arrest, and misidentified Appellant as the drug dealer. The trial court deferred ruling on the motion until Detective Hykel testified and then denied the motion. On appeal, Appellant argues that the confidential informant's testimony might have established that another person at the residence sold him the drugs in the undercover buys or that the informant merely pretended to buy drugs at the residence. It is apparent from our review of the record that while the informant's information formed the probable cause basis for the search warrant, Appellant was arrested, indicted, tried, and convicted for possession of the cocaine found when the warrant was executed. Appellant does not challenge probable cause for issuance of the warrant. Nothing in the record suggests that the informant was present when the warrant was executed. Therefore, the informant's testimony might have been relevant to the issue of probable cause, but not to the actual offense. Appellant did not make a "plausible showing" that the testimony would "significantly aid" in the determination of guilt or innocence. We hold that the trial court did not abuse its discretion by denying Appellant's motion to compel disclosure of the confidential informant. We overrule Appellant's first point.