ACCEPTED
06-14-00169-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/5/2015 10:19:22 AM
DEBBIE AUTREY
CLERK
CAUSE NO. 06-14-00169-CR
FILED IN
6th COURT OF APPEALS
IN THE COURT OF APPEALS TEXARKANA, TEXAS
1/8/2015 2:40:00 PM
SIXTH APPELLATE DISTRICT OF TEXAS DEBBIE AUTREY
Clerk
AT TEXARKANA, TEXAS
____________________________________________________
STEPHEN W. PENDERGRASS, Appellant
VS.
THE STATE OF TEXAS, Appellee
TRIAL COURT CAUSE NO. F14437
IN THE 115TH JUDICIAL DISTRICT COURT
MARION COUNTY, TEXAS
STATE’S APPELLATE BRIEF
Submitted by:
Angela Smoak
Marion County Attorney
102 W. Austin, Room 201
Jefferson, Texas 75657
(903) 665-2611
Fax (903) 665-3348
State Bar #00797466
TABLE OF CONTENTS
TABLE OF CONTENTS …………………………………………………… i
INDEX OF AUTHORITIES ………………………………………………. ii
STATEMENT OF THE CASE ……………………………………………. 1
STATEMENT OF FACTS …………………………………………………. 1
REPLY TO APPELLANT’S ISSUE NUMBER ONE …………………. 2
THE INDICTMENT IS NOT FUNDAMENTALLY
DEFECTIVE IN FAILING TO ALLEGE THE NAME OF
THE PERSON TO WHOM APPELLANT DELIVERED A
CONTROLLED SUBSTANCE.
CONCLUSION AND PRAYER …………………………………………. 5
CERTIFICATE OF SERVICE …………………………………………… 6
CERTIFICATE OF COMPLIANCE ……………………………………. 6
i
INDEX OF AUTHORITIES
Cases: Page:
Bodin v. State, 807 S.W.2d 313, 318
(Tex. Crim. App. 1991) ……………………………………………… 3
Harris v. State, 587 S.W.2d 429
(Tex. Crim. App. Panel No. 2, 1979) …………………………… 3
Statutes:
Rule 508 of the Texas Rules of Evidence …………………………….. 3
ii
STATEMENT OF THE CASE
Appellant entered a plea of guilty on October 28, 2013, and received
deferred adjudication for five years on an indictment alleging the state jail
offense of Delivery of a Controlled Substance on or about July 25, 2012. [CR
1,2] At such plea, Appellant signed and agreed to the entry of the stipulation
of evidence and judicially confessed to committing the offense exactly as
charged within the indictment. [CR1-3] No pretrial motions were filed. The
State’s Motion to Proceed with an Adjudication of Guilt was filed on April 20,
2014. [CR 14-15] Appellant entered a plea of true to the five violations
alleged against him in the Motion. [RR 4-6] The trial court heard evidence
and adjudicated Appellant and sentenced him to fifteen months confinement
in State Jail on September 15, 2014. [CR 1] Appellant gave timely notice of
appeal on September 17, 2014. [CR 19]
STATEMENT OF FACTS
Appellant pled true to all of the violations alleged in the State’s Motion
to Proceed with an Adjudication of Guilt. [RR 5-6] Appellant testified at the
hearing on the State’s Motion and offered excuses as to why he violated the
terms and conditions of his deferred adjudication. [RR 7-10]
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REPLY TO APPELLANT’S ISSUE NUMBER ONE
APPELLANT’S ASSERTION
Is the indictment fundamentally defective because it
fails to allege the name of the person to whom
appellant is alleged to have delivered a controlled
substance so as to be used in the future to bar
additional prosecution for the same offense?
STATE’S REPLY
THE INDICTMENT IS NOT FUNDAMENTALLY
DEFECTIVE IN FAILING TO ALLEGE THE NAME
OF THE PERSON TO WHOM APPELLANT
DELIVERED A CONTROLLED SUBSTANCE.
SUMMARY OF THE ARGUMENT
The indictment is not fundamentally defective in that a specific person
was identified by confidential informant number. Further, Appellant
stipulated to the indictment and failed to file any motions requesting the
identity of the named confidential informant and wholly failed to meet his
burden necessitating the disclosure of the informant’s identity.
ARGUMENT AND AUTHORITIES
Appellant argues that the indictment is fundamentally defective as it
alleged not a name but a confidential informant number as the person to
whom Appellant transferred a controlled substance. The reference,
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“confidential informant #7-25-12” is not general at all but in fact references
a person in regularly kept records and is customary in the indictment of
delivery of drug cases such as these.
Specifically, Appellant urges that Harris should apply to names in an
indictment to insure the sufficiency of the instrument to be used to prevent
further prosecution for the same offense. Harris v. State, 587 S.W.2d 429
(Tex. Crim. App. Panel No. 2, 1979) Since the person named is a specific
confidential informant, numbered in the indictment, and references a person
in regularly kept records, it seems unlikely, if not impossible, to charge
Appellant for the same offense, on the same date, with the same person all
alleged in the indictment.
Appellant further fails to recognize Rule 508 of the Texas Rules of
Evidence which would entitle Appellant to the identity of informant. The
defendant has the threshold burden of demonstrating that the informant’s
identity must be disclosed. Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim.
App. 1991) To carry this burden, the defendant must present evidence, but
cannot rely on mere conjecture or speculation. Id.
In the case at bar, no motion requesting such information was ever
filed and no evidence was presented that would require the disclosure of the
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informant set out in the indictment. In fact, no objection was ever made by
Appellant to the indictment itself and moreover, Appellant signed the
stipulation of evidence and agreed to its entry which specifically stated that
defendant judicially confessed to the offense “exactly as charged within the
indictment.” [CR 4]
Now comes Appellant complaining of the indictment for the first time
on appeal. Appellant had countless opportunities to request the complained
of information but only now requests the identity of the confidential
informant. Essentially, Appellant has lain behind the log for the duration of
this case and only objected now on appeal after failing to avail himself of
every opportunity presented to him prior to appeal.
The argument made by Appellant would require this Court to apply the
ruling in Harris v. State to confidential informants where it has never before
been applied. Such application would only serve to allow defendants to
neglect every opportunity to request the complained of information. Those
remedies are available for a reason and application of Harris would certainly
make those remedies unnecessary in future cases and would certainly not
contribute to judicial economy in any form or fashion.
Appellant’s issue number one should be overruled.
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CONCLUSION AND PRAYER
Wherefore, upon the issue presented, the State prays that the
judgment of the trial court be in all things affirmed.
Respectfully submitted,
s/Angela Smoak
Angela Smoak
Marion County Attorney
102 W. Austin, Room 201
Jefferson, Texas 75657
(903) 665-2611
(903) 665-3348 (fax)
State Bar # 00797466
angela.smoak@co.marion.tx.us
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CERTIFICATE OF SERVICE
I hereby certify that a copy of State’s Appellate Brief was served on
James P. Finstrom, Attorney for Appellant, pursuant to the Rules on this the
5th day of January, 2015.
/s/ Angela Smoak
Angela Smoak
CERTIFICATE OF COMPLIANCE
I certify that this Brief filed electronically on this the 5th day of January,
2015 complies with T.R.A.P. Sec. 9.4(i)(2)(B) and contains 1079 words.
/s/ Angela Smoak
Angela Smoak
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