Jerry Brice v. State

Opinion

                             NUMBER 13-03-00412-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

JERRY BRICE,                                                                                  Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

     On appeal from the 180th District Court of Harris County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

On June 30, 2005, this Court issued a memorandum opinion in this case.  On August 29, 2005, appellant, Jerry Brice, filed a petition for discretionary review.  Pursuant to rule 50 of the Texas Rules of Appellate Procedure, we have reconsidered our original opinion.  See Tex. R. App. P. 50.  We withdraw our memorandum opinion of June 30, 2005, and substitute the following as the corrected opinion of the court.  See id.

Appellant pleaded guilty to the offense of possession with intent to deliver a controlled substance.  After accepting appellant=s plea of guilty, the trial court deferred the adjudication of guilt, placed appellant on community supervision for a term of ten years, and assessed a $5,000 fine.  The trial court has certified that this case is not a plea-bargain case, and that the defendant has the right of appeal.  See Tex. R. App. P. 25.2(a)(2).  In a single issue, appellant contends the trial court erred in denying his motion to disclose the identity of a confidential informer pursuant to rule 508(c) of the Texas Rules of Evidence.  See Tex. R. Evid. 508(c).  We affirm.

Because the issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and facts in this opinion except as necessary to advise the parties of our decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

We review a trial court's decision to deny a motion to disclose the identity of a confidential informer under an abuse of discretion standard.  Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); State v. Sotelo, 164 S.W.3d 759, 760 (Tex. App.BCorpus Christi 2005, no pet. h.); Portillo v. State, 117 S.W.3d 924, 930 (Tex. App.BHouston [14th Dist.] 2003, no pet.).  We will not disturb the trial court's decision so long as that decision was not so clearly wrong as to lie outside that zone within which reasonable persons might disagree. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc); Sotelo, 164 S.W.3d at 760.  We may not substitute our judgment for that of the trial court; rather, we must decide whether the trial court=s decision was arbitrary or unreasonable.  Montgomery, 810 S.W.2d at 380. 

While the State has a privilege to refuse to disclose the identity of a confidential informer, Tex. R. Evid. 508(a), a court may order the State to disclose the identity of an informer if it appears that the Ainformer may be able to give testimony necessary to a fair determination . . . on guilt or innocence.@  Tex. R. Evid. 508(c)(2); Bodin v. State, 807 S.W.2d 313, 317-18 (Tex. Crim. App. 1991).  A defendant bears the threshold burden of demonstrating that identity must be disclosed.  Bodin, 807 S.W.2d at 318 (citing Rugendorf v. United States, 376 U.S. 528, 534-35 (1964)).  AThe informer=s potential testimony must significantly aid the defendant and mere conjecture or supposition about possible relevancy is insufficient.@  Id. at 318.  However, because a defendant may not actually know the nature of the informer=s testimony, he is only required to make a plausible showing of how the informer=s information may be important.  Id.  (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 871 (1982)). 

Appellant filed a motion requesting disclosure of the identity of the confidential informer, asserting that the informer induced him to commit the offense for which he pleaded guilty.  Appellant argues that without the informer=s testimony, he was unable to pursue an entrapment defense.  In ruling on appellant=s motion, the trial court relied on affidavits from both the State and appellant that were submitted for in camera review.  The affidavits were subsequently sealed and forwarded to this Court for our review.  See Tex. R. Evid. 508(c)(2) (AEvidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal.@); see also Pope v. Stephenson, 787 S.W.2d 953, 954 (Tex. 1990).

            After reviewing the sealed affidavits, we conclude that appellant=s assertion that the informer induced him to commit the offense for which he pleaded guilty is no more than mere conjecture or supposition.  Because appellant failed to demonstrate how the informer=s testimony would be necessary for a fair determination of guilt, we hold the trial court did not abuse its discretion in denying appellant=s motion to compel disclosure of the informer=s identity.  Appellant=s sole issue is overruled. 

The judgment of the trial court is affirmed.      

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 26th day of September, 2005.