COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-136-CR
JANE ETTA HARRIS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1 ON REMAND
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A jury found Appellant Jane Etta Harris guilty of possession of a
controlled substance and assessed her punishment at ten years’ imprisonment.
The trial court sentenced her accordingly. In three points, Appellant challenges
(1) the trial court’s denial of her motion to suppress based on an invalid search
warrant, (2) the trial court’s refusal to conduct an in camera hearing related to
1
… See T EX. R. A PP. P. 47.4.
a confidential informant, and (3) the trial court’s denial of Appellant’s requested
article 38.23 jury instruction.
On original submission, this court held that the affidavit supporting the
search warrant, exclusive of the statements that were untrue or made with
reckless disregard for the truth, was insufficient to provide probable cause,
sustained Appellant’s first point, reversed the trial court’s judgment, and
remanded the case for trial without the illegally seized evidence. 2 The Texas
Court of Criminal Appeals reversed this court, holding that Appellant failed to
preserve Franks 3 error, and remanded the case back to this court for
consideration of Appellant’s remaining points.4 Because we hold that the trial
court did not err by refusing to conduct an in camera hearing or by refusing to
give the jury an article 38.23 instruction, we affirm the trial court’s judgment.
B ACKGROUND F ACTS
In June 2001, the Fort Worth Police Department received a Tarrant
County Crime Stoppers tip that drugs were being sold out of Apartment No.
158 at 5308 East Rosedale in Fort Worth. The investigating police officer
2
… Harris v. State, 184 S.W.3d 801, 813 (Tex. App.—Fort Worth 2006),
rev’d, 227 S.W.3d 83, 86 (Tex. Crim. App. 2007).
3
… Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978).
4
… Harris v. State, 227 S.W.3d 83, 86 (Tex. Crim. App. 2007).
2
assigned to investigate the complaint said that he observed traffic which he
described as consistent with narcotics dealing coming from the general area of
the apartment. He then arranged for a confidential informant to attempt a
narcotics purchase from the apartment. After the officer used the confidential
informant to conduct an undercover buy, he obtained a search warrant for the
apartment. The police executed the search warrant and recovered over four
grams of cocaine.
In a two-count indictment, Appellant was charged with possession of
cocaine with intent to deliver and possession of cocaine. Prior to trial,
Appellant filed a motion to disclose the identity of the confidential informant.
After a hearing, the trial court denied the motion.
IN C AMERA H EARING
In Appellant’s second point, she contends that the trial court erred by
refusing to conduct an in camera hearing to determine whether the State could
invoke its privilege to protect the informant’s identity. Generally, the State has
a privilege to refuse to disclose the identity of an informant who has furnished
information to a law enforcement officer conducting an investigation.5 The
privilege does not apply (1) if the informant’s identity has been voluntarily
5
… See T EX. R. E VID. 508(a).
3
disclosed, (2) if the informant may be able to give testimony necessary to a fair
determination of guilt or innocence, or (3) if the court is not satisfied that
information was obtained from an informant reasonably believed to be reliable. 6
Appellant relies on the second exception, which provides in pertinent part:
(2) Testimony on merits. If it appears from the evidence in
the case or from other showing by a party that an informer may be
able to give testimony necessary to a fair determination of . . . 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.7
The defendant bears the initial burden of showing that the informant may
be able to give testimony necessary to a fair determination of the defendant’s
guilt or innocence. 8 This initial burden has been described as a “plausible
showing.” 9 “Evidence from any source, but not mere conjecture or speculation,
must be presented to make the required showing that the informant’s identity
must be disclosed.” 10 If the defendant meets the burden of making the
6
… T EX. R. E VID. 508(c); Bodin v. State, 807 S.W .2d 313, 317 (Tex.
Crim. App. 1991).
7
… T EX. R. E VID. 508(c)(2).
8
… Bodin, 807 S.W.2d at 318.
9
… Id.
10
… Id.
4
preliminary showing, then the trial court is required to hold an in camera
hearing.11 When an informant is present at the time of an illegal transaction or
participated in its commission, the informant is a material witness to that
transaction and must be identified.12
In the case before us, however, the illegal act witnessed by the informant
is not the same illegal act with which Appellant is charged. Rather, the
informant’s information was used to show probable cause that Appellant
possessed cocaine for the issuance of the search warrant. Thus, the informant
is not a material witness to the evidence upon which the State relied for a
conviction—the events and evidence seized during the execution of the search
warrant. Instead, the informant merely supplied information that was used to
establish probable cause necessary for the issuance of a search warrant.
Appellant points to no evidence that the informant was present during the
execution of the warrant and the arrest or that the informant had any
information relevant to Appellant’s guilt or innocence. Thus, Appellant did not
satisfy her initial burden to show that the informant was able to give testimony
necessary to a fair determination of her guilt or innocence and did not trigger
11
… Id.
12
… See Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991).
5
the procedural requirements of rule 508(c)(2). We overrule Appellant’s second
point.
J URY INSTRUCTION
In Appellant’s third point, she argues that the trial court erred by denying
her request for an article 38.23 jury instruction. Under article 38.23 of the
code of criminal procedure, no evidence obtained in violation of the federal or
state constitutions or laws may be admitted; and when the legal evidence raises
an issue regarding a violation, the jury must be instructed that if it believes, or
has a reasonable doubt, that the evidence was obtained in violation of the law,
it must disregard the illegally obtained evidence. 13 A trial court is required to
include a properly worded article 38.23 instruction in the jury charge only if
there is a factual dispute as to how the evidence was obtained. 1 4 An
appellant’s disagreement “with the conclusion that probable cause was shown
as a matter of law is not the same as appellant controverting the facts.” 15
Here, the disputes Appellant discusses—the contradictions between the
investigating officer’s testimony and his affidavit regarding whether the
informant actually entered Apartment No. 158 and regarding what the officer
13
… T EX. C ODE C RIM. P ROC. A NN. art. 38.23(a) (Vernon 2005).
14
… Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004).
15
… Id. at 86.
6
actually observed—go to the veracity of the allegations in the probable cause
affidavit. “W hether the affidavit contained sufficient facts for a neutral and
detached magistrate to conclude there was probable cause is a legal question;
any dispute regarding the facts contained in the affidavit was for the trial court
to [resolve] under the appropriate standard of review.” 16 The trial court was
therefore not required to include an article 38.23 instruction in the jury
charge. 17 We overrule Appellant’s third point.
C ONCLUSION
Having overruled all of Appellant’s points on appeal, we affirm the trial
court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL B: DAUPHINOT, HOLMAN, and GARDNER, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: June 26, 2008
16
… Heimsath v. State, No. 05-06-00310-CR, 2007 WL 659970, at *3
(Tex. App.—Dallas Mar. 6, 2007, no pet.) (not designated for publication).
17
… See id.
7
Jane Etta Harris v. State
Combined Opinion