James v. State

493 S.W.2d 201

• Court: Court of Criminal Appeals of Texas
• Decided: March 14, 1973
• Docket: 45412
• Status: Published

Opinions

OPINION

MORRISON, Judge.

The offense is the sale of marihuana; the punishment, fifty (SO) years.

We are met at the outset with the trial court’s refusal to require the State to disclose the name of the informer. Upon examination of the record, we conclude that Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, is dispositive of the question before us. In Roviaro, supra, Roviaro and the informant, John Doe, traveled a distance in the informant’s Cadillac to a place where Roviaro alighted from the automobile, walked a few feet to a tree, picked up a package, returned to the Cadillac, deposited the package, and walked away. This was the transaction upon which the prosecution was based. These facts were established by the testimony of Officer Bryson, who was secreted in the trunk of the Cadillac, and Officers Durham, Fields and Sims, who followed the Cadillac.

In the case at bar, Officer Hunter and the informant travelled in the informant’s automobile, driven by him, for a distance and came to a stop at a Club where they met appellant who came to the driver’s side of the informant’s automobile with a paper sack in his hand. When appellant arrived he greeted both Hunter and the informant and handed Hunter the paper bag behind the informant’s head. Upon leaving he told Hunter and the informant he would see “us” later. This was the transaction upon which the prosecution was based. These facts were established by the testimony of Hunter, who testified that he was working “with” the informant, and Officer Voyles, who followed informant’s automobile.

In Roviaro, supra, the U. S. Supreme Court said:

“. . . that the identity of . an informer must be disclosed whenever the informer’s testimony may be relevant and helpful to the accused’s defense.”

In that opinion the Supreme Court described John Doe, the informant, stating that he:

“ . . . had helped to set up the criminal occurrence and had played a prominent part in it.”

In the case at bar, as in Roviaro, supra, the informant helped set up the criminal occurrence and played a prominent part in it. The informant told Hunter where they were driving to and who they would meet. When they met, appellant greeted both the informer and Agent Hunter. He created an atmosphere of confidence during critical moments and he would have been able to testify directly about the very transaction constituting the crime.

We conclude, as the Court did in Rovi-aro, supra, that:

“Petitioner’s opportunity to cross-examine Police Officer Bryson and Federal Narcotics Agent Durham was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction.”

See also Miller v. United States, 5 Cir., 273 F.2d 279; Gilmore v. United States, 5 Cir., 256 F.2d 565; Lopez-Hernandez v. United States, 9 Cir., 394 F.2d 820; and United States v. Roberts, 5 Cir., 388 F.2d 646.

Nothing we here hold is contrary to our discussions in Leal v. State, Tex.Cr.App., 442 S.W.2d 736; Durham v. State, Tex.Cr.App., 466 S.W.2d 758; Ware v. State, Tex.Cr.App., 467 S.W.2d 256; Yantis v. State, Tex.Cr.App., 476 S.W.2d 24; Albitez v. State, Tex.Cr.App., 461 S.W.2d 609; and Porter v. State, Tex.Cr.App., 436 S.W.2d 159, because in those cases we found that the informant was neither present with the accused at the occurrence of the alleged crime, nor a material witness to the transaction, nor a material witness as to whether or not the accused knowingly committed the crime.

For reasons stated the judgment is reversed and the cause remanded.