(concurring).
After further study of this record on State’s motion for rehearing, I am convinced we were in error in reversing the case on original submission on the basis that State action resulted in Leveine being unavailable as a witness resulting in deprivation of appellant’s constitutional rights.
*551This record reflects that some seven and one-half months prior to trial, and before indictment and arrest of the appellant, Lt. Slocum of the San Antonio Police Department had a conversation with Leveine, an informer who Slocum knew had participated with undercover agent Albert Che-vera in making a number of narcotic cases. Leveine expressed the thought that he should leave town, and Slocum agreed that it was a good idea. It is certainly common knowledge that lives of informers in narcotic cases are in constant danger. The conversation appears to have taken place shortly after Leveine’s activities as an in former had been completed. Upon Lev-eine’s suggestion that he “needed some money to eat” Slocum sent him $75.00 by one of his officers. The amount involved was not sufficient to allow him to travel any great distance or to keep him in food for long.
As pointed out by the majority opinion on original submission the record does not support appellant’s claim that agents of the State instructed Leveine to leave town for the purpose of concealing evidence and depriving appellant of the right to compulsory process of witnesses. The appellant had not even been arrested and no indictment had even been returned at the time.
Only twelve days before trial did the appellant issue a subpoena for Leveine. It was returned four days before trial marked “subject not at this address.”
The record does not reflect that Leveine normally lived at the address placed on the subpoena by the appellant, nor whether he had recently moved or not, or what efforts were made by the officer who attempted to serve the subpoena to locate Leveine, or how appellant acquired the information about the address used on the subpoena.
There is nothing to show that Leveine in fact left town. If he did, there is no showing he was still out of town at the time of the trial some seven and one-half months later.
To hold under the circumstances of this particular case that State’s action deprived the appellant of compulsory process would mean that an accused should be allowed to go free because an officer, before an indictment is returned, gives an informer money for food and agrees that under the circumstances then existing he should leave town for his safety and later the informer cannot be found by the issuance of a subpoena under the conditions here described.
I agree that the State’s motion for rehearing should be granted and the judgment should be affirmed.