Opinion
No. 10-03-00377-CR
Opinion delivered and filed October 27, 2004. DO NOT PUBLISH.
Appeal from the 82nd District Court, Falls County, Texas, Trial Court # 7843. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Justice VANCE dissenting with note).
"(Justice Vance dissents with a note: I believe that we owe it to the litigants, the higher courts, the Bench and Bar, and the public generally to provide more of the facts and our analysis in memorandum opinions. For basically the same reasons stated in my dissent to Long v. State, I would find that the court should have disclosed the identity of the informant. 137 S.W.3d 726, 737-38 (Tex.App.-Waco 2004, no pet.) (Vance, J. dissenting). The majority sets the threshold for disclosure too high. Furthermore, the trial court held an in camera hearing, the result of which was that Woodson made a "plausible showing" that the informer, who had purchased cocaine only two hours before the drug bust, "may be able to give testimony necessary to a fair determination of a material issue on . . . guilt or innocence." Because the majority finds otherwise, I respectfully dissent)."
MEMORANDUM Opinion
This appeal concerns a conviction for possession of cocaine. See TEX. HEALTH SAFETY CODE ANN. § 481.115(a) (Vernon 2003), § 481.102(3)(D) (Vernon Supp. 2004). Appellant contends that the trial court erred in not ordering the State to disclose the identity of an informer. See TEX. R. EVID. 508(c)(2). We will affirm. First, Appellant argues that the informer "both was present and participated in the alleged offense," and "was a material witness as to whether [Appellant] knowingly committed a crime." At most, the informer was present when Appellant committed the offense of distribution of cocaine on an earlier occasion, not at the time of the charged offense. See Long v. State, 137 S.W.3d 726, 733 (Tex.App.-Waco 2004, no pet.); Daniels v. State, 25 S.W.3d 893, 898 (Tex.App.-Houston [14th Dist.] 2000, no pet.); Bodin v. State, 816 S.W.2d 770, 772-73 (Tex.App.-Houston [14th Dist.] 1991, no pet.). Next, Appellant argues that the person whom Appellant believed was the informer had a "long history of drug use" and had "been known to commit crimes [involving] moral turpitude," and that Appellant and the person "had recently had an altercation" in which Appellant "forcibly removed the person" from Appellant's property. "The informant's credibility and motives for providing the information leading to the investigation of [the] appellant have no bearing on whether [the appellant] was guilty or innocent of" the charged offense. Daniels, 25 S.W.3d at 898. Appellant also argues that he was denied confrontation and cross-examination of the informer. "The trial court [does] not violate [an] appellant's right to confront witnesses against him [when] the confidential informant [does] not testify against him." Lillard v. State, 994 S.W.2d 747, 753 (Tex.App.-Eastland 1999, pet. ref'd). Accordingly, we overrule Appellant's issue. Having overruled Appellant's sole issue, we affirm the judgment.