Rangel v. State

585 S.W.2d 695, 1979 Tex. Crim. App. LEXIS 1453
Court of Criminal Appeals of Texas·Decided May 16, 1979·No. 56348·Published·Cited by 37 cases

Opinions

OPINION

W. C. DAVIS, Judge.

Appeal follows a conviction for delivery of heroin. Based on prior felony convictions, punishment was enhanced to life imprisonment. Two grounds of error are presented. We affirm.

The first issue is whether the trial court erred by failing to require the State to produce a police informant as a witness. Richard Moreno, an undercover police officer, testified that he was introduced to appellant at a bar on July 24, 1975, by an informer named Johnny Rodriguez. Officer Moreno stated that appellant sold him heroin contained in a small balloon. According to the officer’s testimony, Rodriguez was not present when the sale of heroin was made. There were no other witnesses to these events.

Appellant offered a different version of facts. He testified that Rodriguez came alone to the bar the morning of July 24, 1975. At the time, Rodriguez was in need of a “fix” but could not get heroin because he owed money to his supplier. Appellant testified that Rodriguez then asked him to buy the heroin for him. Appellant took fourteen dollars from Rodriguez and purchased half a gram of heroin. After the purchase, appellant gave the heroin to Rodriguez in the presence of Officer Moreno.

During a pre-trial hearing on November 5,1975, appellant’s counsel filed a motion to compel the State to produce Rodriguez as a witness. Officer Moreno testified on cross-examination that Rodriguez was his informant, but he had “no idea” where Rodriguez was at that time. Appellant’s counsel testified that he became aware that Rodriguez was a possible witness sometime shortly after September 22,1975, but was unable to locate Rodriguez, despite “every effort possible.” The trial court denied the motion.

Appellant’s counsel filed a second motion requesting the State to produce the witness or dismiss the case on April 12, 1976, the first day of trial. Appellant filed a similar pro se motion the same day. Both motions were denied with instructions to the State to produce the witness if his location were discovered.

Both appellant and the State rely primarily on Sigard v. State, 537 S.W.2d 736 (Tex. Cr.App. 1976). Appellant concedes that Si-gard requires only “that the process issue and due diligence be exercised in a good faith attempt to secure service of the process.” Appellant does not contend that the State failed to make a good faith effort to serve process. He argues that in Sigard there was evidence that the prosecutor took additional steps to locate the witness through the national computer system and the penitentiary systems. The prosecutor further instructed an investigator to check [697]*697the neighborhood of the witness. Appellant contends that in the present case, “there is utterly no showing by the State of any efforts to locate the material witness Johnny Rodriguez.”

Additionally, appellant relies on two federal cases which were cited by the court in Sigard v. State, supra. The cases of United States v. Gentile, 495 F.2d 626 (5th Cir. 1974), and United States v. Hayes, 477 F.2d 868 (10th Cir. 1973), held that the State is not required to actually produce a witness, but should provide the last known residence of the informer and reasonable assistance in locating him.

The State responds to these contentions in two ways. First, it contends that Sigard only requires a good faith effort to serve process, and the duty to provide assistance only arises if the State affirmatively acts to conceal the identity of the informant. The reference to United States v. Gentile, supra, and United States v. Hayes, supra, in the Sigard opinion demonstrates that when an informant’s identity is revealed, the State should disclose the last known residence of the informer and provide “reasonable assistance” in locating that witness. The State is often in a uniquely superior position to acquire information about an informant’s location, and it should make that information available to a defendant upon request. However, whether the State provided reasonable assistance must be determined on a case-by-case examination of the facts.

An examination of the record here convinces us that the State did provide reasonable assistance in locating Johnny Rodriguez. Officer Moreno voluntarily revealed the name of the informant to appellant’s counsel .during the pre-trial hearing, about five months prior to trial. The felony records department of the prosecutor’s office was made available to appellant’s attorney, along with the assistance of an employee of that office. Jail officials at the Bexar County jail assisted appellant’s counsel in examining their records. Police officers voluntarily spoke with appellant’s court-appointed investigator. It is apparent that the State attempted to cooperate, but had no information which could aid in the location of Johnny Rodriguez. Therefore, the trial court did not err in refusing to instruct the State to produce the witness or dismiss the case.

Ground of error one is overruled.

In his second ground of error, appellant challenges an instruction given by the trial judge on the issue of entrapment. The portion of the charge in dispute reads as follows:

“Therefore, even if you believe from the evidence beyond a reasonable doubt that the defendant committed the offense as alleged, but you further believe, or you have a reasonable doubt thereof, that he was induced to do so by Johnny Rodriguez, who was a person acting in accordance with instructions from a law enforcement agent, to-wit: Richard Moreno, who used persuasion or other means likely to cause persons to commit the offense, and that the conduct of the said Johnny Rodriguez did not merely afford the defendant an opportunity to commit the offense, if any, you will find the defendant not guilty.”

Appellant complains that the emphasized language above was improper because it required him to prove that the undercover officer (Moreno) specifically instructed the informer to entrap appellant.

The State responds by saying that error, if any, was not properly preserved. The objection to the charge made at trial did not refer to the issue now raised on appeal, so the State is correct that Art. 36.14, Vernon’s Ann.C.C.P. was not complied with. Moore v. State, 542 S.W.2d 664 (Tex.Cr.App. 1976); Jones v. State, 481 S.W.2d 833 (Tex.Cr.App. 1972). However, appellant argues that he complied with Art. 36.15, Vernon’s Ann.C.C.P. by submitting a specially requested charge. There is in the record a document entitled “Defendant’s Requested Charge on Entrapment” which was filed with the clerk on April 13, 1976, the day before the charge was read to the jury. The document is not certified by the [698]*698judge, and defense counsel has the responsibility of obtaining that certification. Reeves v. State, 516 S.W.2d 410 (Tex.Cr. App. 1974). We concluded in Reeves that error was not preserved.

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Rangel v. State, 585 S.W.2d 695, 1979 Tex. Crim. App. LEXIS 1453 (Tex. 1979).

585 S.W.2d 695 (Rangel v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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