Affirmed and Memorandum Opinion filed August 30, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00468-CR
NO. 14-15-00469-CR
ROOSEVELT HART, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause Nos. 1425126 & 1425127
MEMORANDUM OPINION
A jury convicted Roosevelt Hart of possession with intent to deliver a
controlled substance, namely phencyclidine, weighing more than 200 grams and
less than 400 grams, and possession of marijuana weighing more than 4 ounces
and less than 5 pounds. In two issues, appellant contends the trial court abused its
discretion by failing to order disclosure of a confidential informant’s identity and
that disclosure of the informant’s identity was required under the Michael Morton
Act. We affirm.
BACKGROUND
I. Probable Cause Affidavit and Search Warrant
On April 15, 2014, Officer Robert Lara of the Houston Police Department’s
narcotics division swore to an affidavit in support of a search warrant. According
to the affidavit, the residence to be searched was an apartment home at 3542 ½ Des
Chaumes St. in Houston, Texas. In addition to providing a description of the home,
the affidavit stated the residence was controlled by a black male identified as
appellant, also known as “Blade,” and an unknown black female. Lara believed
appellant was in possession of the illegal controlled substance phencyclidine
(“PCP”). Lara swore he had probable cause based on information from a credible
and reliable confidential informant. The informant had seen PCP on “many
occasions” and could easily identify the substance by both sight and smell. The
informant had also provided Lara with reliable information on at least three prior
occasions.
Within 48 hours prior to seeking the search warrant, Lara met with the
informant in an unmarked vehicle, drove him/her to a secluded area, and searched
him/her for contraband, weapons, and money, of which there was none. Lara
subsequently provided the informant with city-issued money and drove him/her to
3542 ½ Des Chaumes St. Lara observed the informant enter through the front door.
Upon returning to the car, the informant told Lara that Blade answered the
door and told him/her to enter the apartment. When the informant entered, a female
was sitting on the living room couch. Blade asked the informant what he/she
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wanted, and the informant responded, “wet.”1 The informant gave Blade the city-
issued money, and Blade told the female on the couch to give the informant the
requested drugs. According to the informant, the female gave him/her “several
vials containing a clear liquid substance.” The informant took the vials and told
Blade he/she would return to buy more, to which Blade responded he had more and
to just call him or come by the house.
Lara observed the informant exiting the apartment and returning to the
unmarked vehicle. The informant gave Lara the vials of “wet.” Lara then drove to
a secluded area and again searched the informant for contraband, finding nothing.
Lara then delivered the vials to the Houston Police Department Forensic Science
Center for priority testing. Testing confirmed the substance as PCP.
Lara additionally swore in the affidavit that within 48 hours prior to
executing the search warrant, he also conducted surveillance of 3542 ½ Des
Chaumes St. and observed pedestrian and vehicular traffic “consistent with
narcotics trafficking.” Moreover, Lara and the confidential informant had
previously purchased vials of “wet” from Blade on April 9, 2014, at the same
apartment home. Additional research showed that appellant had a driver’s license2
issued to him at this address and that he is a documented gang member, known to
Northeast Tactical Officers as using the nickname “Blade” and living at the
address in question.
Based on this probable cause affidavit, a magistrate signed a search warrant
authorizing a search of 3542 ½ Des Chaumes St.
1
According to the affidavit, “wet” is a street term used to describe phencyclidine.
2
At trial, Lara testified that it was actually a state-issued identification card.
3
II. Rule 508 Motion
Prior to trial, the trial court signed a standard discovery order in both cases.
Subsequently, appellant filed a motion to require the disclosure of the confidential
informant’s identity. The motion argued, inter alia, that the informant participated
in the commission of the charged offense; was present at the time of the charged
offense; and was a material witness on the issue of appellant’s guilt or innocence
as well as the issue of entrapment. The motion further contended that failure to
disclose information about the informant violated appellant’s rights under the Fifth,
Fourth, and Fourteenth Amendments of the United States Constitution, Article I,
Section 19 of the Texas Constitution, and Article 1.04 of the Texas Code of
Criminal Procedure.
During a hearing on the motion, appellant argued that disclosure of the
informant’s identity was required under Rule 508 of the Texas Rules of Evidence.
Specifically, appellant contended the informant’s statements provided the basis for
the probable cause in the affidavit in support of the search warrant, which resulted
in the offenses charged. Appellant argued the informant’s testimony could
potentially undermine the reliability of this probable cause. Appellant further
argued the informant’s testimony as to whether appellant was in possession of
drugs prior to the search was relevant with regard to whether appellant was
actually in possession of drugs on the day he was arrested. Appellant urged the trial
court to order the State to disclose the informant’s identity because the informant
“could give testimony that could provide a fair determination of [his] guilt or
innocence.” Appellant urged the trial court to at least conduct an in camera hearing
to determine whether the informant could provide testimony necessary to a fair
determination of guilt or innocence.
The State responded that appellant’s contentions were “mere conjecture or
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supposition or hypotheticals.” The State argued that absent some solid evidence,
appellant failed to make a threshold showing that disclosure of the informant’s
identity was required under Rule 508.
The trial court found there was no evidence to indicate the informant was
present at the time the warrant was executed or that the informant could provide
any testimony to help the jury or court decide the ultimate question of guilt or
innocence. The trial court then denied the motion.
III. Trial
At trial, Lara testified that he executed the search warrant on April 16, 2014,
with the assistance of his squad and a tactical team. In order to gain entry into the
home, the officers used a flash device and a battering ram. Upon entry into the
home, Lara observed an “overwhelming smell of PCP.” After securing the area,
Lara discovered appellant in one of the bedrooms and detained him with handcuffs
before placing him in a police vehicle. No drugs were found on appellant. In
addition to appellant, a female3 and three children were inside the home. Lara and
his team then proceeded to conduct a search of the home.
Lara first entered the master bedroom where, in addition to both men’s and
women’s clothing, he observed several small vials which he identified as vials
often used to store PCP for individual sale. Lara also discovered a Bud Light
plastic bottle that contained PCP, as well as a baby bottle and “suctioner”
containing traces of PCP. According to Lara, the suctioner is often used to suction
PCP out of a larger bottle in order to put it into the individual vials. In the same
area, Lara also found a pistol along with a large brick of marijuana and a scale with
drug residue on it.
3
Appellant’s co-defendant, Denise Matson.
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Lara testified that the officers then searched for evidence linking appellant
and his co-defendant to the location. This search resulted in mail addressed to the
appellant at 3542 ½ Des Chaumes St. as well as appellant’s state-issued
identification card with a matching address. The officers also recovered
approximately $3,000 in cash.
Officer Christian Dorton of the Houston Police Department also testified at
trial as a member of the tactical team involved in executing the search warrant.
Dorton testified that he had previously conducted surveillance on the location in
question and was “very familiar” with appellant. Dorton had seen appellant at 3542
½ Des Chaumes St. on “many occasions.”
Dorton also confirmed that there was a very strong smell of PCP upon entry
into the residence. According to Dorton, they recovered a large vial of PCP;
Dorton stated he had “never seen a vial that large.” Dorton further testified that the
amount of PCP found in the house, combined with numerous vials, demonstrated
that it was being packaged for sale.
Following testimony from a forensic scientist confirming the amount and
nature of the substances found, a jury found appellant guilty of both offenses as
charged. On May 7, 2015, the jury assessed punishment as 28 years’ imprisonment
in the Institutional Division of the Texas Department of Criminal Justice and a
$10,000 fine for the possession with intent to deliver phencyclidine charge, and 3
years’ imprisonment and a $500 fine for the possession of marijuana charge. The
sentences were ordered to run concurrently. Appellant did not file a motion for
new trial. This appeal timely followed.
ANALYSIS
In two issues, appellant contends the trial court abused its discretion by
failing to order disclosure of a confidential informant’s identity and that disclosure
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of the informant’s identity was required under the Michael Morton Act.
I. Trial Court Error
We review a trial court’s denial of a request for disclosure of a confidential
informant’s identity for abuse of discretion. Ford v. State, 179 S.W.3d 203, 210
(Tex.App.—Houston [14th Dist.] 2005, pet. ref'd). We affirm the ruling unless the
trial court’s decision was so clearly wrong as to lie outside the zone of reasonable
disagreement. Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); see
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).
We may not substitute our judgment for that of the trial court; rather, we must
decide whether the trial court acted arbitrarily or unreasonably without reference to
any guiding rules or principles. Id. at 380.
The State has the privilege to refuse to disclose an informant’s identity. Tex.
R. Evid. 508(a). However, if it appears from the evidence in the case or from some
other showing that an informant may be able to give testimony necessary to a fair
determination of guilt or innocence, “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.” Tex. R. Evid. 508(c)(2). Under Rule 508, the
defendant has the burden to make a plausible showing that an informant could give
testimony necessary to a fair determination of guilt or innocence. Bodin v. State,
807 S.W.2d 313, 318 (Tex. Crim. App. 1991). The defendant is required to make
only a plausible showing of how the informant’s information may be important.
See Anderson v. State, 817 S.W.2d 69, 71 (Tex. Crim. App. 1991). However, the
defendant must demonstrate the informant’s potential testimony would
significantly aid the defendant and mere conjecture or supposition about possible
relevancy is insufficient. Brokenberry v. State, 853 S.W.2d 145, 148 (Tex. App.—
Houston [14th Dist.] 1993, pet. ref’d). Only after the defendant makes a plausible
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showing is the trial court required to hold an in camera hearing to determine
whether disclosure is necessary. Id.
If a defendant shows that a confidential informant was an eyewitness to the
alleged offense, then that informant is in a position to give testimony necessary to a
fair determination of guilt or innocence. Ford v. State, 179 S.W.3d 203, 210 (Tex.
App.—Houston [14th] 2005, pet. ref’d) (citing Anderson v. State, 817 S.W.2d 69,
72 (Tex. Crim. App. 1991) (en banc)). However, if information provided by the
informant is used only to establish probable cause for a search warrant and the
informant neither participated in the charged offense nor was present when the
search warrant was executed, the informant’s identity need not be disclosed
because his testimony is not necessary to a fair determination of guilt or innocence.
Ford, 179 S.W.3d at 210 (citing Washington v. State, 902 S.W.2d 649, 656–57
(Tex. App.—Houston [14th] 1995, pet. ref’d)).
Here, appellant contends disclosure of the confidential informant’s identity
is warranted because in addition to providing the information used to support the
probable cause search warrant, the informant was an active witness to and
participant in the offenses for which appellant was convicted. Specifically,
appellant asserts the confidential informant is a “material witness as to both the
distribution element [of the possession with intent to distribute PCP offense] and
the possible affirmative defense of entrapment.” Based on this evidence, according
to appellant, he made a sufficient threshold showing that the informant could be a
fact witness necessary to a fair determination of guilt or innocence, and the trial
court abused its discretion by failing to order the State to disclose the informant’s
identity.
During the hearing on the motion to disclose, the State argued, and the trial
court found, that appellant failed to present any evidence beyond the initial
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probable cause search warrant demonstrating the informant’s identity should be
revealed or even that an in camera hearing should be held to determine whether
disclosure was necessary. Specifically, the trial court determined there was no
evidence to indicate the informant was present at the time the warrant was
executed or that the informant had any information that would assist in a fair
determination of appellant’s guilt or innocence.
Notably, the court cited State v. Sotelo, 164 S.W.3d 759 (Tex. App.—
Corpus Christi 2005, no pet.) in support of its decision. In Sotelo, the appellate
court held the trial court abused its discretion in ordering disclosure of an
informant’s identity when the evidence showed the informant provided credible
and reliable information to law enforcement on prior cases; the information
provided to the case agent proved credible and reliable because it resulted in a
narcotics seizure and arrest in the instant case; and the informant was not present at
the scene at the time of the search, seizure, and arrest leading to the indictment.
164 S.W.3d at 763. We are presented with similar evidence here. Under these
circumstances, appellant fails to demonstrate the informant’s testimony was
necessary to a fair determination of guilt or innocence.
Nor are we persuaded that disclosure of the informant’s identity prevented
appellant from putting on a potential defense of entrapment. In order to establish a
defense of entrapment, a defendant must show that he engaged in the conduct
charged because he was induced to do so by a law enforcement agent, who used
persuasion or other means likely to cause persons to commit the offense. Tex.
Penal Code Ann. §8.06(a) (West 2015). However, conduct merely affording a
person an opportunity to commit an offense does not constitute entrapment. Id.
Again, there is no evidence here that the informant was present for or involved in
the actual possession offenses with which appellant was charged.
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In light of the record before us, appellant fails to demonstrate the trial
court’s denial of his motion to disclose the informant’s identity was outside the
zone of reasonable disagreement. Accordingly, we overrule appellant’s first issue.
II. Disclosure under the Michael Morton Act
In his second issue, appellant contends the Michael Morton Act (“the Act”)
required disclosure of the informant’s identity because it was relevant, material,
and potentially exculpatory. More specifically, appellant argues a reasonable
construction of the statute, when “read in concert” with Rule 508, mandated
disclosure. The State argues appellant failed to preserve error for appeal with
regard to this issue. We agree.
To preserve error for appeal, a party is required to make a timely request,
objection or motion to the trial court and obtain an express or implied ruling. Tex.
R. App. P. 33.1(a); Douds v. State, 472 S.W.3d 670, 673 (Tex. Crim. App. 2015).
The requirement of a timely, specific objection serves two purposes: (1) it informs
the trial judge of the basis of the objection and affords the judge an opportunity to
rule on it, and (2) it affords opposing counsel an opportunity to respond to the
objection. Douds, 472 S.W.3d at 674.
The Court of Criminal Appeals has “long eschewed hyper-technical
requirements for error preservation.” Vasquez v. State, 483 S.W.3d 550, 554 (Tex.
Crim. App. 2016). Specific words are usually not required to preserve a complaint;
rather, a party need only “let the trial court know what he wants and why he feels
himself entitled to it clearly enough for the judge to understand him.” Id. Still, a
general or imprecise objection “will not preserve error for appeal unless the legal
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basis for the objection is obvious to the court and to opposing counsel.” Buchanan
v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (emphasis in original).
The Act creates a general, continuous duty of the State to disclose before,
during, or after trial any discovery evidence tending to negate the guilt of the
defendant or reduce the punishment the defendant could receive.
See Michael Morton Act, 83rd Leg., R.S., ch. 49, § 3, 2013 Tex. Sess. Law Serv.
1611 (codified as Tex. Code Crim. Proc. Ann. art. 39.14 (West Supp. 2014));
Gonzales v. State, No. 04–14–00222–CR, 2015 WL 4273261 (Tex. App.—San
Antonio 2015, no pet.) (not designated for publication). Article 39.14 provides, in
relevant part:
Subject to the restrictions provided by Section 264.408, Family Code,
and Article 39.15 of this code, as soon as practicable after receiving a
timely request from the defendant the state shall produce and permit
the inspection and the electronic duplication, copying, and
photographing, by or on behalf of the defendant, of any offense
reports, any designated documents, papers, written or recorded
statements of the defendant or a witness, including witness statements
of law enforcement officers but not including the work product of
counsel for the state in the case and their investigators and their notes
or report, or any designated books, accounts, letters, photographs, or
objects or other tangible things not otherwise privileged that constitute
or contain evidence material to any matter involved in the action and
that are in the possession, custody, or control of the state or any
person under contract with the state.
Tex. Crim. Proc. Code Ann. Art. 39.14(a) (West 2015) (emphasis added).
In his written motion, appellant contended failure to disclose the informant’s
identity violated his rights under both the federal and state constitutions as well as
Article 1.04 of the Texas Code of Criminal Procedure, which governs due course
of law. At the hearing on his motion, appellant argued disclosure was required
under Rule 508. Now, on appeal, appellant asks for the first time that we consider
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whether the Act, when read in concert with Rule 508, mandates disclosure of the
confidential informant’s identity in this case. Specifically, appellant urges this
court to grant relief based on statutory construction and legislative intent,
contending this criminal discovery statute requires disclosure of all written and
recorded witness statements material to the case in spite of the Rule 508 privilege.
Appellant contends his general request for discovery from the State is sufficient to
preserve this argument for appeal. However, there is no evidence the trial court
was put on notice of this argument. Accordingly, we conclude appellant failed to
preserve this argument for appeal. See Tex. R. App. P. 33.1(a). We overrule
appellant’s second issue.
CONCLUSION
We affirm the judgment of the trial court.
/s/ Ken Wise
Justice
Panel consists of Justices Busby, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
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