Moore, James Edward

PD-0058-15 PD-0058-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 1/19/2015 12:00:00 AM
Accepted 1/21/2015 2:28:49 PM
PDR NO.______________ ABEL ACOSTA
CLERK
COURT OF APPEALS NOS. 02-13-00192-CR

IN THE TEXAS
COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS

JAMES EDWARD MOORE
PETITIONER
VS.
THE STATE OF TEXAS
RESPONDENT

_______________________________________________________
PETITION FOR DISCRETIONARY REVIEW
OF THE OPINION OF THE
SECOND COURT OF APPEALS OF
TARRANT COUNTY, TEXAS
_______________________________________________________

___________________
PETITION FOR REVIEW

DANNY D. BURNS
115 North Henderson Street
Fort Worth, Texas 76102-1040
(817) 870-1544 FAX (817) 870-1589
January 21, 2015
State Bar No. 03443800
dburnslaw@sbcglobal.net

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:

COMES NOW JAMES EDWARD MOORE, Petitioner and files

this his Petition for Discretionary Review of the

decision of the Second Court of Appeals sitting in Fort

Worth, Tarrant County, Texas.
 LIST OF INTERESTED PARTIES

JUDGES: APPELLANT:
Hon. Louis E. Sturns James Edward Moore
Judge 213th Judicial District
Court
401 West Belknap
Fort Worth, Texas 76196

TRIAL ATTORNEYS
Alicia Cannon and
Andrea Risinger
Prosecuting Attorneys
Tarrant County District Attorney’s Office
401 West Belknap Street
Fort Worth, Texas 76196

Danny D. Burns and
C. Kyle Hogan (Separate law firms)
115 N. Henderson Street
Fort Worth, Texas 76102
Defense Attorneys

APPELLATE COUNSEL:
Joe Shannon, Criminal District Attorney
Charles M. Mallin, Assistant Criminal District Attorney
401 West Belknap Street
Fort Worth, Texas 76196-0201

Danny D. Burns, Appellate Counsel for Defense
115 North Henderson Street
Fort Worth, Texas 76102-1940

/s/ Danny D. Burns
DANNY D. BURNS

ii
 TABLE OF CONTENTS

LIST OF INTERESTED PARTIES............................ii

TABLE OF CONTENTS....................................iii

TABLE OF CASES AND AUTHORITIES........................v

STATEMENT REGARDING ORAL ARGUMENT.....................vi

STATEMENT OF THE CASE................................. 1

STATEMENT OF JURISDICTION.............................7

PROCEDURAL HISTORY.................................... 7

POINTS FOR REVIEW..................................... 8

REASON FOR REVIEW NUMBER ONE.......................... 9

THE COURT OF APPEALS HAS DECIDED AN
IMPORTANT QUESTION OF STATE LAW WHICH
HAS NOT BEEN BUT WHICH SHOULD BE
DECIDED BY THIS HONORABLE COURT
REGARDING THE LEGALITY OF A CITY
VIOLATING THE STATUTORY REQUIREMENT OF
HAVING ALL POLICE CARS EQUIPPED WITH
AUDIO-VIDEO CAMERAS TO RECORD ALL
TRAFFIC STOPS UNDER THE ANTI-PROFILING
STATUTE SET OUT IN TEXAS CODE OF
CRIMINAL PROCEDURE, ARTICLE 2.132-138.

REASON FOR REVIEW NUMBER TWO..........................13

THE COURT OF APPEALS HAS DECIDED AN
IMPORTANT QUESTION OF STATE LAW WHICH
IS IN CONFLICT WITH ESTABLISHED
SUPREME COURT PRECEDENT INVOLVING THE
RIGHT TO NOTICE OF BRADY MATERIAL AND
MATERIAL WITNESSES.

iii
CONCLUSION AND PRAYER.................................17

CERTIFICATE OF SERVICE................................18

CERTIFICATE OF COMPLIANCE............................19

APPENDIX (OPINION AND DENIAL OF REHEARING)

iv
 TABLE OF CASES
CASES:

Banks v. Dretke, 540 U.S. 668, 124 S.Ct.
1256, 157 L.Ed.2d 1166 (2004). . . . . . vi,14,16

Roviaro v. United States, 353 U.S. 53,
77 S.Ct. 623, 1 L.Ed.2d 639 (1957). . . vii,14,17

United States v. Godkins, 527 F.2d 1321
(5th Cir., 1976). . . . . . . . . . . . . . . 14,16

United States v. Melchor Moreno, 536 F.2d
1042 (5th Cir., 1976). . . . . . . . . . . . 14,16

AUTHORITIES

ANTI-TERRORISM AND EFFECTIVE DEATH PENALTY ACT,
28 U.S.C. §§2254 & 2255. . . . . . . . . . . vi,16

TEXAS CODE OF CRIMINAL PROCEDURE,
ARTICLE 2.132-138. . . . . . . . . . . . . 6,9,10
Article 2.132. . . . . . . . . . . . . vii,viii,10
Article 38.23. . . . . . . . . . . . . . viii,8,9

TEXAS RULES OF EVIDENCE;
Rule 508. . . . . . . . . . . . . . . . . . . 4,15

TEXAS CONSTITUTION,
Article I,
Section 9. . . . . . . . . . . . . . . . . 15
Section 10. . . . . . . . . . . . . . . . . 15
Section 15. . . . . . . . . . . . . . . . . 15
Section 19. . . . . . . . . . . . . . . . . 15
Article 5,
Section 5. . . . . . . . . . . . . . . . . 7

CONSTITUTION OF THE UNITED STATES,
FIFTH AMENDMENT. . . . . . . . . . . . . . . . 15
SIXTH AMENDMENT. . . . . . . . . . . . . . . . 15
FOURTEENTH AMENDMENT. . . . . . . . . . . . . . 15

v
 STATEMENT REGARDING ORAL ARGUMENT

Petitioner requests the Court to grant oral argument

in this case. The refusal of the trial court to reveal

the informant’s identify deprived Petitioner of

exculpatory evidence and the right to confront his

accusers. Petitioner could not present his defense that

the controlled substance must have been placed in the

vehicle by the informant who had a motive to work off a

case or just revenge. Either way the testimony from the

informant would have produced ample reasonable doubt

before the jury. The fact that the right to this

information is adequately demonstrated by the Supreme

Court’s opinion in Banks v. Dretke, 540 U.S. 668, 124

S.Ct. 1256, 157 L.Ed.2d 1166 (2004) which found that the

right to revelation of the identity of an information is

of such established precedent that it supports relief

under the Anti-Terrorism and Effective Death Penalty Act

(AEDPA). In an analogous situation, the Supreme Court

ruled that the failure to reveal the identity of the

Informant who was present at crime and who “might” be a

material witness as to whether the accused knowingly

vi
transported the drugs was reversible error. SEE: Roviaro

v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d

639 (1957) Petitioner Moore certainly met the might be a

material witness standard required for disclosure under

Roviaro. The Court of Appeals adding the additional

requirement that the Respondent must prove that the

Informant was a material witness violates the federal

constitution and produces an impossible required showing

for the defense to ever obtain the material witness

informant. Petitioner made more than an adequate showing

and this Honorable Court should grant review in order to

address this new requirement for the disclosure of a

material witness at the scene of the crime.

The Legislature has required video/audio cameras in

police cars involved in the stopping of motor vehicles to

prevent profiling and harassment of drivers without a

demonstration on the tape of probable cause for the

officer’s stop. Allowing a city to ignore the

requirements of the Texas Code of Criminal Procedure,

Article 2.132(7)(d) requirement of cameras invites a
continuation of racial and status profiling which the

vii
Legislature is attempting to eliminate. The Court of
Appeals reasoning that the statute does not address the
evidence suppression issue is simply wrong. The very
purpose of the statute is to stop, by whatever means
necessary, racial and status profiling. This Honorable
Court should grant review to address whether the
violation of Article 2.132(7)(d) requires suppression or
at least a jury instruction under Article 38.23 of the
Texas Code of Criminal Procedure.
This Honorable Court should grant review in order to

address these issues.

viii
 STATEMENT OF THE CASE

The Appellant Mr. James Edward Moore was charged with

possession of a controlled substance possession of

methamphetamine of over four grams but less than 200

grams with intent to deliver and in count two with

possession of methamphetamine of four grams or more but

less than 200 grams. The indictment contained a single

prior conviction alleged for enhancement of punishment

purposes. (R., Vol. 1, p. 5-6) Mr. James Edward Moore

filed a Notice of Intent to Object to Warrantless Search

and a Motion to Disclose Informer’s Identity. (R., Vol.

1, p. 20-23 and p. 24-27, respectively) Both of the

Motions were denied. After a full trial, the jury

convicted Appellant James Edward Moore of Possession with

Intent to Deliver 4-200 grams of Methamphetamine and the

trial court sentenced Appellant James Edward Moore to

twenty-five (25) years in the Institutional Division of

the Texas Department of Corrections. Appellant timely

and properly gave notice of appeal to this Honorable

Court.

The indictment contained a single prior conviction

PAGE 1
alleged for enhancement of punishment purposes. (R.,

Vol. 1, p. 5-6) Mr. James Edward Moore filed a Notice of

Intent to Object to Warrantless Search and a Motion to

Disclose Informer’s Identity. (R., Vol. 1, p. 20-23 and

p. 24-27, respectively) Both of the Motions were denied.

After a full trial, the jury convicted Appellant James

Edward Moore of Possession with Intent to Deliver 4-200

grams of Methamphetamine and the trial court sentenced

Appellant James Edward Moore to twenty-five (25) years in

the Institutional Division of the Texas Department of

Corrections. Appellant timely and properly gave notice

of appeal to this Honorable Court.

At the hearing on the Motion to Suppress, the State

conceded there was no Search Warrant. (R., Vol. 2, p. 5)

The State called Officer Joe A. Pittman with the Fort

Worth Police Department, Narcotics Division. (R., Vol.

2, p. 6) Officer Pittman testified he received

information on Appellant Moore and he set up surveillance

on Petitioner James Moore and contacted traffic officers

to try to make a stop on Appellant Moore’s motor vehicle

if they saw him. (R., Vol. 2, p. 7, 8) When the officers

PAGE 2
saw Appellant Moore and his motor vehicle, they contacted

the patrol unit to effect a traffic stop. (R., Vol. 2,

p. 8-9) Officer Pittman testified that he observed the

vehicle failure to signal a turn, and that the vehicle

failed completely to stop at a stop sign at Lipscomb

Street. (R., Vol. 2, p. 11-12) A marked patrol vehicle

made a traffic stop on Appellant Moore’s vehicle. (R.,

Vol. 2, p. 13) Officer Pittman did not recall if another

person was around the vehicle. (R., Vol. 2, p. 14) All

the time of the surveillance, the search, arrest, and

detention of Petitioner Moore, the Informant was in

Officer Pittman’s motor vehicle at the scene. (R., Vol.

2, p. 15-16) As far as Officer Pittman knew the Informant

saw everything. (R., Vol. 2, p. 16-17) Officer Pittman

admitted that the patrol officer could not have seen the

alleged traffic violations, making the Informant the only

way of checking the Officer’s testimony. (R., Vol. 2, p.

18-19) The reason for having the “traffic stop” made was

to further the narcotics investigation. (R., Vol. 2, p.

19-20) Before the date of the surveillance, Officer

Pittman had not dealt with the Informant. (R., Vol. 2,

PAGE 3
p. 21) The State conceded that the “Source of

Information” was a confidential informant and was relying

on Rule 508 to not reveal who he/she was. (R., Vol. 2,

p. 23) Even under Rule 508(c)(2) & (3) mandates

disclosure consistent with the constitutional

requirements. Officer Pittman admitted he did not know

how much additional evidence the Informant had. (R.,

Vol. 2, p. 24-26) Officer Pittman had briefed Officer

Gray, the patrol officer, as to what he was to search for

once he stopped the car solely for traffic offenses.

(R., Vol. 2, p. 28) Officer Gray was not stopping the

vehicle solely for a traffic violation but rather to do

a narcotics search. (R., Vol. 2, p. 29)

Officer Gray who made the traffic stop candidly

admitted that the Officers were watching the house and

the Ford Focus and when the Ford Focus left the area, he

was going to stop the vehicle. (R., Vol. 2, p. 39-40)

When the officer turned on his lights, the Ford Focus

stopped. When Officer Gray asked for Petitioner Moore’s

license and insurance, Petitioner Moore produced his

driver’s license but could not locate his insurance card.

PAGE 4
(R., Vol. 2, p. 41) As Petitioner Moore was looking for

his insurance card, Officer Gray said Moore became more

nervous and breathing heavier. (R., Vol. 2, p. 42)

Officer Johnson, the back up officer was on the passenger

side of the vehicle. Still, Officer Gray told Appellant

Moore to step out of the car. (R., Vol 2, p. 42-43)

Officer Gray said Petitioner Moore was trying to reach

for something and so the Officer grabbed Appellant Moore

and pushed him against the vehicle. (R., Vol. 2, p. 43)

Officer Johnson claimed that Appellant Moore had thrown

a green bag. (R., Vol. 2, p. 45) The Officers threw

Petitioner Moore to the ground and handcuffed him. (R.,

Vol. 2, p. 45) Officer Gray refused to say that Officer

Pittman had told him to find probable cause to search,

contrary to the earlier, unequivocal testimony of Officer

Pittman. (R., Vol. 2, p. 47) Officer Gray even denied

that Officer Pittman had talked with him. (R., Vol. 2,

p. 48) Officer Gray testified that, contrary to the Texas

anti-profiling law, Fort Worth does not equip the patrol

cars of officer’s assigned to the zero tolerance squad

PAGE 5
that has the assignment of stopping or harassing1 persons

previously convicted of felonies with video equipment so

that the illegal activities of these officers cannot be

recorded for the review of their actions by juries and

judges. (R., Vol. 2, p. 51-53) Officer Gray testified

that he files anti-profiling reports required by law as

often as he remembers but he did not do one in this case.

(R., Vol. 2, p. 53) The City of Fort Worth is not exempt

from the provisions of Articles 2.131-2.138 of the Texas

Code of Criminal Procedure. Officer Gray admitted that

the insurance information on the vehicle comes up as soon

as he attempts to stop the vehicle. (R., Vol. 2, p. 55)

When Officer Gray was attempting to handcuff Appellant

Moore, he had seen no weapon and the green bag was not a

weapon. (R., Vol. 2, p. 60)

The trial court denied both the Motion to Suppress

and the Motion to Reveal the Informant’s Identity. (R.,

Vol. 2, p. 75 and 76)

1
My characterization, not the officer’s.
PAGE 6
 STATEMENT OF JURISDICTION

Jurisdiction is vested in this Honorable Court by the

Texas Constitution, Article 5, Section 5 which directs

that the Court of Criminal Appeals shall have final

jurisdiction coextensive with the limits of the state, in

all criminal cases of whatsoever grade, except for

juvenile cases. Discretionary Review by the Court of

Criminal Appeals is not a matter of right, but of sound

judicial discretion. This is a Petition for

Discretionary Review from a final decision of the Second

Court of Appeals.

PROCEDURAL HISTORY

The Second Court of Appeals affirmed Petitioner's

conviction and sentence in an unpublished opinion on

November 20, 2014. The Defense timely filed a Motion for

Rehearing which was denied on December 18, 2014. The

Petition for Discretionary Review is, therefore, due to

be filed on or before January 17, 2015, which is a

Saturday, making the Petition due to be filed on or

before Monday January 19, 2015.

PAGE 7
 POINTS FOR REVIEW

POINT OF ERROR NUMBER ONE. APPELLANT WAS DEPRIVED OF DUE
PROCESS OF LAW RIGHTS TO NOTICE OF MATERIAL WITNESSES
AGAINST HIM AND HIS RIGHT TO PRESENT EVIDENCE THAT MAY
CONTRADICT THE STATE’S VERSION OF EVENTS WHEN THE TRIAL
COURT REFUSED TO DISCLOSE THE CONFIDENTIAL INFORMANT WHO
WAS A MATERIAL WITNESS TO THE OFFENSE AND WAS PRESENT AT
THE OFFENSE ALLEGED.

POINT OF ERROR NUMBER THREE. THE TRIAL COURT ERRED IN
FAILING TO SUPPRESS THE SEARCH UNDER ARTICLE 38.23 OF THE
TEXAS CODE OF CRIMINAL PROCEDURE WHEN THE STATE OBTAINED
THE EVIDENCE IN THIS CASE IN VIOLATION OF TEXAS CODE OF
CRIMINAL PROCEDURE, ARTICLE 2.132-138.

PAGE 8
REASON FOR REVIEW NUMBER ONE. THE COURT OF APPEALS HAS

DECIDED AN IMPORTANT QUESTION OF STATE LAW WHICH HAS NOT

BEEN BUT WHICH SHOULD BE DECIDED BY THIS HONORABLE COURT

REGARDING THE LEGALITY OF A CITY VIOLATING THE STATUTORY

REQUIREMENT OF HAVING ALL POLICE CARS EQUIPPED WITH

AUDIO-VIDEO CAMERAS TO RECORD ALL TRAFFIC STOPS UNDER THE

ANTI-PROFILING STATUTE SET OUT IN TEXAS CODE OF CRIMINAL

PROCEDURE, ARTICLE 2.132-138.

THE OPINION

The Court of Appeals held in effect that “zero

tolerance” officers do not have to comply with the anti-

profiling statute because that statute “does not possess

the necessary causal relationship to discovery of the

incriminating evidence” requiring preclusion of the

evidence under Article 38.23 of the Texas Code of

Criminal Procedure. (Opinion, p.11-12) This Honorable

Court has not addressed whether a city can ignore the

requirements of Article 2.132-138 when the very purpose

of the statute, anti-profiling, is the purpose of the

squad set up to find reasons to stop and search persons

who are on parole or have criminal records.

PAGE 9
LAW AND ARGUMENTS

The Texas Code of Criminal Procedure, Article 2.132
requires each law enforcement agency in the State of
Texas to (6) require collection of information relating
to motor vehicle stops in which a citation is issued and
to arrests made as a result of those stops, including
information relating to: (A) the race or ethnicity of the
individual detained; (B) whether a search was conducted
and , if so, whether the individual detained consented to
the search; and (C) whether the peace officer knew the
race or ethnicity of the individual detained before
detaining that individual.
The Texas Code of Criminal Procedure, Article
2.132(7) (d) provides that “On adoption of a policy under
Subsection (b), a law enforcement agency shall examine
the feasibility of installing video camera and
transmitter-activated equipment in each agency law
enforcement vehicle regularly used to make motor vehicle
regularly used to make motor vehicle stops and in each
agency motorcycle regularly used to make motor vehicle
stops. If a law enforcement agency installs video or
audio equipment as provided by this subsection, the

PAGE 10
policy adopted by the agency under Subsection (b) must
include standards for reviewing video and audio
documentation.” The reasoning behind the statute is
avoid police misconduct in stopping minorities or other
citizens based upon race, national origin, or status.
Petitioner Moore, as a convicted felon who is a member of
the group whom the no tolerance force is designed to
harass has standing to assert the anti-profiling
violation. Counsel asserts that this Honorable Court
should grant review and decide if the cities can avoid
the anti-profiling law in order to hide their
unconstitutional actions when they may be stopping
individuals without probable cause. This is an issue of
importance to all citizens, including those traditionally
harassed by police.
FACTS IN SUPPORT OF REVIEW
The State called Officer Gray who made the traffic

stop. (R., Vol. 2, p. 38) Officer Gray works in the Zero

Tolerance Unit stopping and checking on repeat offenders

in high crime areas and help narcotics officers in their

narcotics investigations. (R., Vol. 2, p. 39) Officer

Gray was not stopping the vehicle solely for a traffic

PAGE 11
violation but rather to do a narcotics search. (R., Vol.

2, p. 29) Officer Gray testified that, contrary to the

Texas anti-profiling law, Fort Worth does not equip the

patrol cars of officer’s assigned to the zero tolerance

squad that has the assignment of stopping or harassing2

persons previously convicted of felonies with video

equipment so that the illegal activities of these

officers cannot be recorded for the review of their

actions by juries and judges. (R., Vol. 2, p. 51-53)

Officer Gray testified that he files anti-profiling

reports required by law as often as he remembers but he

did not do one in this case. (R., Vol. 2, p. 53) The

City of Fort Worth is not exempt (d) provides that “On

adoption of a policy under Subsection (b), a law
enforcement agency shall examine the feasibility of
installing video camera and transmitter-activated
equipment in each agency law enforcement vehicle
regularly used to make motor vehicle regularly used to
make motor vehicle stops and in each agency motorcycle
regularly used to make motor vehicle stops. If a law

2
My characterization, not the officer’s.
PAGE 12
enforcement agency installs video or audio equipment as
provided by this subsection, the policy adopted by the
agency under Subsection (b) must include standards for
reviewing video and audio documentation.”

REASON FOR REVIEW NUMBER TWO. THE COURT OF APPEALS HAS

DECIDED AN IMPORTANT QUESTION OF STATE LAW WHICH IS IN

CONFLICT WITH ESTABLISHED SUPREME COURT PRECEDENT

INVOLVING THE RIGHT TO NOTICE OF BRADY MATERIAL AND

MATERIAL WITNESSES.

THE OPINION

The Second Court of Appeals held that the disclosure

of a confidential informant who was present at the scene

and was a witness to the actions and information relayed

by the police need not be disclosed. (Opinion, p. 2-7)

The Court of Appeals held that even though the

confidential informant was present in the police car,

watched from the back seat of the police car and was

privy to all the police communications, that he was not

a material witness. This holding is contrary to the

Fifth Circuit Court of Appeals holdings in United States

PAGE 13
v. Melchor Moreno, 536 F.2d 1042 (5th Cir., 1976); United

States v. Godkins, 527 F.2d 1321 (5th Cir., 1976); and to

the Supreme Court’s holdings in Roviaro v. United States,

353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) and Banks

v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166

(2004)

LAW AND ARGUMENTS

The Petitioner Moore was denied due process of law

when the trial court refused to reveal the identity of

the confidential information, who was a material witness

to the offense due to his activity in setting up the

alleged offense and by his presence at the scene of the

offense. The confidential informant was present at the

scene of the arrest and was a material witness to the

offense vital to the defense being able to show what

really happened in this case. The informant arranged for

the presence of the Petitioner Moore at the scene and

was involved with the Petitioner Moore prior to the

incident. The Informant was present with the officers

when Petitioner Moore was allegedly identified by the

officers. The Informant would have been able to say

PAGE 14
whether or not Petitioner Moore was the person

previously described by him and whether or not Petitioner

Moore was present to engage in illegal activity or not.

The fact that the Informant was present at the time of

the arrest makes the Informant a material witness who

must be disclosed to the defense under the Constitution

of the State of Texas and of the United States, as well

as the Code of Criminal Procedure. TEXAS CONSTITUTION,

Articles I, Section 9, 10, 15, and 19; UNITED STATES

CONSTITUTION, FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS;

TEXAS RULES OF EVIDENCE, Rule 508(c)(2) & (3). The

evidence is undisputed that the Informant was present at

the time of the offense. The Informant should have been

disclosed and produced for trial. The State has an

affirmative duty to assist the defense in obtaining the

presence of material witnesses. United States v. Melchor

Moreno, 536 F.2d 1042 (5th Cir., 1976); United States v.

Godkins, 527 F.2d 1321 (5th Cir., 1976). The refusal of

the trial court to reveal the informant’s identify

deprived Petitioner of exculpatory evidence and the right

to confront his accusers. Petitioner could not present

PAGE 15
his defense that the controlled substance must have been

placed in the vehicle by the informant who had a motive

to work off a case or just revenge. Either way the

testimony from the informant would have produced ample

reasonable doubt before the jury. The fact that the

right to this information is adequately demonstrated by

the Supreme Court’s opinion in Banks v. Dretke, 540 U.S.

668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) which found

that the right to revelation of the identity of an

information is of such established precedent that it

supports relief under the Anti-Terrorism and Effective

Death Penalty Act (AEDPA). In an analogous situation, the

Supreme Court ruled that the failure to reveal the

identity of the Informant who was present at crime and

who “might” be a material witness as to whether the

accused knowingly transported the drugs was reversible

error. SEE: Roviaro v. United States, 353 U.S. 53, 77

S.Ct. 623, 1 L.Ed.2d 639 (1957) Petitioner Moore

certainly met the might be a material witness standard

required for disclosure under Roviaro. The Court of

Appeals adding the additional requirement that the

PAGE 16
Respondent must prove that the Informant was a material

witness violates the federal constitution and produces

an impossible required showing for the defense to ever

obtain the material witness informant. Petitioner made

more than an adequate showing and this Honorable Court

should grant review in order to address this new

requirement for the disclosure of a material witness at

the scene of the crime.

WHEREFORE, PREMISES CONSIDERED, this Honorable Court

should grant review in order to address these grave

PAGE 17
constitutional issues and provide proper direction to the

trial courts and attorneys of this Honorable State.

Respectfully submitted;

DANNY D. BURNS
Attorney for Petitioner James Moore
115 N. Henderson Street
Fort Worth, Texas 76102-1940
817-870-1544 Facsimile 817-870-1589
dburnslaw@sbcglobal.net

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing petition for discretionary review was mailed,

postage prepaid to the State Prosecuting Attorney, P.O.

Box 12405, Austin, Texas 78711, the Tarrant County

District Attorney’s Office, 401 West Belknap Street, Fort

Worth, Texas 76196 on this the January 17, 2015.

_/s/ Danny D. Burns
DANNY D. BURNS

PAGE 18
 CERTIFICATE OF COMPLIANCE

I certify that the Petition for Discretionary Review

submitted herein complies with 9.4(i) of the Texas Rules

of Appellate Procedure and state that the Petition for

Discretionary Review was typed with WordPerfect6 in

Courier New, 14 point font. The Word Count, excluding the

caption, identify of the parties, and counsel, statement

regarding oral argument, table of contents, index of

authorities, statement of the case, statement of issues

presented, statement of jurisdiction, statement of

procedural history, signature, proof of service,

certification, certificate of compliance, and appendix

consisting of the opinions from the Second Court of

Appeals, contains 1,551 words, contained in 17

paragraphs, in sixty (60) sentences on ten (10) pages.

Respectfully submitted;

_/s/ Danny D. Burns______________
DANNY D. BURNS
115 North Henderson Street
Fort Worth, Texas 76102-1940
(817) 870-1544
(817) 870-1589 fax
dburnslaw@sbcglobal.net

PAGE 19
 COURT OJ~ APPEALS
SECOND DISTRICT OF TEXAS
FORT '-VORTH

NO. 02-13-00192-CR

JAMES EDWARD MOORE APPELLANT

v.
THE STATE OF TEXAS STATE

FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1269903D

MEMORANDUM OPINION 1

I. INTRODUCTION

Appellant James Edward Moore appeals his conviction for possession with

intent to deliver methamphetamine in an amount of four grams or more but less

than 200 grams. See Tex. Health & Safety Code Ann.§ 481.112(d) (West 2010).

A jury found Moore guilty, and the trial court assessed his punishment at 25

1
See Tex. R. App. P. 47.4.
years' confinement. In three points, Moore argues that the trial court violated his

rights to confrontation by allowing the State to withhold the name of its informant

and erred by denying his motion to suppress.

II. FACTUAL 13ACKGROUND

Fort Worth Police Officer Joe A. Pittman received a tip from a confidential

informant that Moore was trafficking narcotics; the confidential informant gave

Officer Pittman a description of Moore and of his vehicle and told him where

Moore was staying. Officer Pittman set up surveillance in his unmarked car and

coordinated with a marked patrol unit "to make a traffic stop" if the officers saw

Moore leave. The confidential informant rode in the back of Officer Pittman's car.

Officer Pittman saw a car parked in an alley matching the description given by

the confidential informant, and two other undercover narcotics officers set up

surveillance on the car. They ultimately saw a man matching the description of

Moore get into the car. After the car drove off, Officer Pittman, who was one

block away, observed the driver, Moore, fail to signal prior to making a turn and

fail to stop at a stop sign. Officer Pittman radioed to the marked patrol car to

initiate a traffic stop.

Officer Christopher Gray stopped Moore and approached the driver's side

of Moore's car; Officer Michael Johnson approached the passenger side. Officer

Gray asked Moore for his license and insurance information. Moore could not

locate his insurance card and acted nervous. Officer Gray asked Moore to step

out of the car. As Moore was exiting the vehicle, he reached down and grabbed

2
a green bag from under his leg. Moore got out and threw the green bag across

the top of the car. Officer Gray then pinned Moore against the car and

handcuffed him to ensure his and Officer Johnson's safety. The green bag

contained four baggies filled with a white crystal substance. Testing later

revealed that the baggies contai1ned more than four ounces of

methamphetamine.

During the stop and arrest, Officer Pittman was "making the block" with the

informant lying down in the backseat of the unmarked patrol car.

Ill. DENIAL OF MOTION TO REVEAL INFORMANT'S IDENTITY

In his first point, Moore argues that the trial court violated his confrontation

rights by denying his motion to reveal the informant's identity. Moore asserts that

the informant was a material witness that Moore had the right to cross-examine

under the United States and Texas constitutions.

A. Standard of Review and Law on Withholding Informant Identity

The State possesses a general privilege to withhold the identity of an

individual who has provided information that assists in a criminal investigation.

Tex. R. Evid. 508(a). However, a court must order disclosure of the individual's

identity if the informant may reasonably be able to provide testimony necessary

to a fair determination of guilt or innocence. Tex. R. Evid. 508(c)(2). If it appears

from the evidence in the case, or from some other showing by a party, that an

informant may be able to give testimony necessary to a fair determination of guilt

or innocence, and the State invokes the privilege, the trial court must give the

3
State an opportunity to show in camera facts relevant to determining whether the

informant can, in fact, supply that testimony. /d.

The defendant possesses the initial burden to prove that the informant's

potential testimony will significantly aid in the determination of the defendant's

guilt or innocence. Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991 );

Ford v. State, 179 S.W.3d 203, 210 (Tex. App.-Houston [14th Dist.] 2005, pet.

ref'd), cert. denied, 549 U.S. 922 (2006). Evidence from any source, but not

mere conjecture about possible relevance, must be presented. Bodin, 807

S.W.2d at 318; Haggerty v. State, 429 S.W.3d 1, 8 (Tex. App.-Houston [14th

Dist.] 2013, pet. ref'd). The mere filing of a motion to reveal an informant's

identity is insufficient to obtain a hearin~~. much less compel disclosure. Bodin,

807 S.W.2d at 318. The defendant must make a plausible showing of how the

informant's information may be important, and only after such a showing is the

trial court required to hold an in camera hearing to determine whether disclosure

is necessary. See Haggerty, 429 S.W.3cl at 8.

Disclosure of an informant's identity may be required if the informant was

an eyewitness to or participated in an alleged offense. Ford, 179 S.W.3d at 210

(citing Anderson v. State, 817 S.W.2d 6SI, 72 (Tex. Crim. App. 1991 )). Similarly,

disclosure may be required if the informant was present at the time of the offense

or arrest or was otherwise shown to bE! a material witness to the transaction.

See Anderson, 817 S.W.2d at 72; Washington v. State, 902 S.W.2d 649, 656-57

(Tex. App.-Houston [14th Dist.] 1995, pet. ref'd).

4
 We review a trial court's ruling on a motion to reveal an informant's identity

for an abuse of discretion. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim.

App. [Panel Op.] 1980); Thomas v. State, 417 S.W.3d 89, 91-92 (Tex. App.-

Amarillo 2013, no pet.). Under that standard, a trial court's decision is disturbed

on appeal only when it falls outside the zone of reasonable disagreement. Jones

v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832

(1997).

B. The Informant Was Not a Material Witness

At a hearing on Moore's motion to disclose the confidential informant's

identity, Officer Pittman testified that he told the informant to lie down in the

backseat of the officer's vehicle during the investigation and arrest and that the

informant complied. Officer Pittman agreed that the informant could have lifted

his head and looked out although the officer never saw the informant do so.

According to Officer Pittman, nobody in his car could have seen Moore get in his

car because they were parked a block away at the time. Officer Pittman was not

near Officer Johnson's vehicle when Officer Johnson stopped Moore and could

not see the stop. Officer Pittman "saw lthe red lights" but drove past as Officer

Johnson was making the stop; neither the officers making the stop nor Moore

had exited their vehicles yet. Officer Pittman drove around the block and

returned after hearing that Moore was resisting arrest. When they arrived, Moore

was in handcuffs. Consequently, even assuming that the informant did not obey

Officer Pittman's orders and sat up in the backseat at any point during the

5
surveillance and stop of Moore, he could not have seen the events leading up to

the stop, the events of the stop, or Moore's ultimate arrest. Thus, contrary to

Moore's assertion in his motion and on appeal, the confidential informant was not

a material witness to the events leading to Moore's arrest. 2

There is no evidence that the confidential informant participated in the

offense or witnessed the offense, the stop, or the arrest of Moore. See Ford, 179

S.W.3d at 21 0; Haggerty, 429 S.W.3d at 8. We hold that the trial court did not

abuse its discretion by determining that Moore failed to make a plausible showing

that the informant's testimony was material to determining guilt or innocence.

See Tex. R. Evid. 508(c)(2); Bodin, 807 S.W.2d at 318; Ford, 179 S.W.3d at 21 0;

see also Washington, 902 S.W.2d at 656-57 (holding that confidential

informant's identity was not necessary to a fair determination of guilt or

innocence when informant did not witness the charged offense). We overrule

Moore's first point.

2
Moore also asserted in his motion that the informant was a material
witness because Moore "was not aware of the presence of the controlled
substance planted in his vehicle." And on appeal, Moore argues that the
informant could have testified to material facts regarding whether Moore was
"merely an innocent party set up by the informant." Although not entirely clear
from his arguments, it appears that Moore is alleging that the confidential
informant planted the methamphetamine in the car in order to set up Moore, but
Moore did not provide anything other than his "mere conjecture" that the
informant did so. Bodin, 807 S.W.2d at 318; Haggerty, 429 S.W.3d at 8. Thus,
he did not satisfy his burden to make a plausible showing of how the informant's
information may be important in this re!~ard. See Bodin, 807 S.W.2d at 318;
Haggerty, 429 S.W.3d at 8.

6
 IV. DENIAL OF MOTION TO SUPPRESS

In his second and third points, Moore argues that the trial court erred by

denying his motion to suppress because the police obtained evidence as a result

of an illegal search that exceeded the scope of the stop and because Officer

Pittman violated the Texas anti-profiling law by using a vehicle not equipped with

video equipment and by failing to file an anti-profiling report.

A. Standard of Review

We review a trial court's ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 95Ei S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court's rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652-53 (Tex. Crirn. App. 2002).

B. Legality of Traffic Stop and Search of Bag

Moore argues in his second point that the methamphetamine found in the

green bag should have been suppressed because he threw the bag as a direct

result of the officers' unlawful conduct in stopping him for the sole purpose of

finding a reason to conduct a search. Moore appears to be arguing that he

7
abandoned the green bag due to police misconduct in making an illegal pretexual

stop.

The Fourth Amendment does not prevent the use of evidence obtained

during a pretextual stop if an officer has probable cause to believe that the

defendant committed a traffic violation. Whren v. United States, 517 U.S. 806,

813, 116 S. Ct. 1769, 1774 (1996) (citing United States v. Robinson, 414 U.S.

218, 221, 236, 94 S. Ct. 467, 470, 477 (1973) (holding that a traffic-violation

arrest remains valid despite the fact that it was a mere pretext for a narcotics

search and that a lawful post-arrest search of the person remains valid even if it

was not motivated by the officer-safety concern that justifies such searches)).

The "objective" test for pretextual searches and seizures-followed by Texas

courts-deems the officer's subjective motivation irrelevant to the determination

of whether the seizure was reasonable. Crittenden v. State, 899 S.W.2d 668,

671-73 (Tex. Crim. App. 1995).

Here, Moore does not challenge the officers' objective basis for the stop-

failure to signal a turn and failure to stop at a stop sign. Officer Pittman testified

that he observed Moore commit two traffic violations and directed Officer Gray to

initiate the stop in his marked patrol car. The officers had an objective basis for

the stop, and their subjective motivation was irrelevant to the reasonableness of

the stop. See Whren, 517 U.S. at 813, 116 S. Ct. at 1774; York v. State, 342

S.W.3d 528, 536 (Tex. Crim. App. 2011 ), cert. denied, 132 S. Ct. 1093 (2012);

Crittenden, 899 S.W.2d at 671, 674.

8
 After conducting a lawful traffic stop, Officer Gray asked Moore to step out

of the vehicle. The officer did so lawfully and in accordance with the privilege

afforded to police officers while engaged in a roadside stop. See Pennsylvania v.

Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333 (1977) (stating that a police officer

who lawfully detains an individual may request that the individual exit his vehicle

without violating the Fourth Amendment); Hill v. State, 303 S.W.3d 863, 871

(Tex. App.-Fort Worth 2009, pet. ref'd) (same). Officer Gray testified that

Moore's behavior-shaking, breathing heavily, and making furtive movements

with his hands-caused Officer Gray to fear for his and Officer Johnson's safety.

As Moore exited the vehicle, he threw the green bag across the car.

When police take possession of property abandoned independent of police

misconduct, there is no seizure under the Fourth Amendment. McDuff v. State,

939 S.W.2d 607, 616 (Tex. Crim. App . ), cert. denied, 522 U.S. 844 (1997).

There was no police misconduct here because police possessed an objective

basis for the traffic stop and acted lawfully in requesting that Moore exit the
3
vehicle. See id.; see also Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim.

App. 1986) (op. on reh'g) (explaining that the decision to freely abandon property

3
1n support of his contention that the police engaged in misconduct, Moore
relies exclusively on Arizona v. Gant, 556 U.S. 332, 332, 129 S. Ct. 1710, 1712-
13 (2009). Gant holds that police may perform a search of a vehicle's passenger
compartment during a search incident to arrest only if it is reasonable to believe
that the arrestee might access the vehicle during the time of the search or that
the vehicle contains evidence of the arrest. 556 U.S. at 332, 129 S. Ct. at 1712-
13. Gant does not apply here because the evidence at issue was not found as a
result of a search incident to arrest.

9
must not be the product of police misconduct); Cooper v. State, 889 S.W.2d 8, 10

(Tex. App.-Eastland 1994, no pet.) ("Because appellant's detention was a

justifiable, legal investigatory stop, the recovery of the baggie of cocaine

[dropped by appellant during the detention] was not tainted by police

misconduct."). We hold that the trial court did not err by denying Moore's motion

to suppress based on an illegal search, and we overrule Moore's second point.

C. Violation of the Anti-Profiling Statute

Moore argues in his third point that the trial court should have suppressed

the evidence because the Fort Worth Police Department does not equip its zero

tolerance squad's 4 patrol cars with video equipment in violation ofT exas Code of

Criminal Procedure article 2.132 and because Officer Gray alternatively failed to

file an anti-profiling report after the stop in violation of article 2.132. See Tex.

Code Crim. Proc. Ann. art. 2.132 (West Supp. 2014 ). Moore argues, therefore,

that the evidence of his stop should have been suppressed under article 38.23.

See id. art. 38.23 (West 2005).

Article 2.132, entitled "Law Enforcement Policy on Racial Profiling,"

requires Texas law enforcement agencies to adopt a detailed written policy on

racial profiling. /d. art. 2.132(b ). The policy must "require collection of

information relating to motor vehicle stops in which a citation is issued and to

arrests made as a result of those stops." /d. art. 2.132(b )(6). Law enforcement

4
The Fort Worth Police Department's zero tolerance squad is a police unit
that focuses on repeat drug offenders in high crime areas.

10
agencies shall also "examine the feasibility of installing video camera and

transmitter-activated equipment in each agency law enforcement motor vehicle

regularly used to make motor vehicle stops and transmitter-activated equipment

in each agency law enforcement motorcycle regularly used to make motor

vehicle stops." /d. art. 2.132( d).

Article 38.23 prohibits the use of evidence that an officer obtained in

violation of the United States Constitution, the Texas constitution, or Texas law.

/d. art. 38.23. The primary purpose of the exclusionary rule is to deter police

activity that could not have been reasonably believed to be lawful by the officers

committing the conduct. See Drago v. State, 553 S.W.2d 375, 378 (Tex. Grim.

App. 1977); Bachick v. State, 30 S.W.3d 549, 553 (Tex. App.-Fort Worth 2000,

pet. ref'd). For evidence to be inadmissible under article 38.23, the defendant

must produce evidence demonstrating a causal connection between the violation

of the law and the evidence obtained. Pham v. State, 175 S.W.3d 767, 772 (Tex.

Grim. App.), cert. denied, 546 U.S. 961 (2005).

Here, Officer Gray testified that the zero tolerance squad patrol cars are

not equipped with video equipment. He also testified that although he files anti-

profiling reports when he remembers, he did not recall filing one in this case. But

the failure to comply with article 2.132's anti-profiling reporting requirements does

not possess the necessary causal relationship to discovery of the incriminating

evidence. See Tex. Code Grim. Proc. Ann. art. 2.132(b)(6); State v. Purdy, 244

S.W.3d 591, 595 (Tex. App.-Dallas 20013, pet. struck) (holding that violation of a

11
statute that is administrative in nature and unrelated to the purpose of the

exclusionary rule does not warrant excluding evidence under article 38.23);

Bachick, 30 S.W.3d at 553 (noting that when nothing in the record indicates that

the objectionable evidence was obtained as a result of the alleged statutory

violation, exclusion is not required). A failure to properly file post-detainment

paperwork has no effect on the circumstances surrounding the stop itself and is

unconnected to the exclusionary rule's purpose. Fredrick v. State, No. 09-08-

00353-CR, 2010 WL 723758, at *3 (Tex. App.-Beaumont Mar. 3, 2010, no pet.)

(mem. op., not designated for publication) (holding that failure to file report

required by anti-profiling statute was not violation of law that would prevent

admission of evidence obtained at traffic stop); see Purdy, 244 S.W.3d at 595;

Bell v. State, 169 S.W.3d 384, 390-91 (Tex. App.-Fort Worth 2005, pet. ref'd).

Further, the code of criminal procedure does not require video equipment in

squad cars but only that each department examine the feasibility of installing

such equipment. See Tex. Code Crim. Proc. Ann. art. 2.132( d).

Thus, the trial court did not err by denying Moore's motion to suppress due

to an unconnected violation of the anti-profiling statute. For the same reasons,

we also deny Moore's alternative sug!Jestion that we "notify cities that this

conduct will not further be tolerated." We overrule Moore's third point.

V. CONCLUSION

Having overruled Moore's three points, we affirm the trial court's judgment.
 /s/ Sue Walker
SUE WALKER
JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 20, 2014

13
 ~lLLlUP!

COURT OJ~ APPEALS
SECOJ';D DISTIUCT OF TEXAS
FORT WORTH

NO. 02-13-00192-CR

JAMES EDWARD MOORE APPELLANT

V.

THE STATE OF TEXAS STATE

FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1269903D

ORDER

We have considered appellant's "Motion For Rehearing."

It is the opinion of the court that the motion for rehearing should be and is

hereby denied and that the opinion and judgment of November 20, 2014 stand

unchanged.

The clerk of this court is directed to transmit a copy of this order to the

attorneys of record.

SIGNED December 18, 2014.
 I-ILL l UP!

Is/ Sue Walker
SUE WALKER
JUSTICE

PANEL: DAUPHINOT, GARDNER, and 'NALKER, JJ.

2