Stephen W. Pendergrass v. State

• Court: Court of Appeals of Texas
• Decided: January 8, 2015
• Docket: 06-14-00169-CR
• Status: Published

Opinion

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]

-1- 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,

-2- “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

-3- 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.

-4- 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

-5- 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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