Opinion
NO. 01-16-00570-CR
12-05-2017
CHRISTOPHER GUTIERREZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas
Trial Court Case No. 1436008
MEMORANDUM OPINION
After the trial court denied his motion to disclose the identity of a confidential informant, appellant, Christopher Gutierrez, pleaded guilty to possession with intent to deliver more than 400 grams of a controlled substance. The trial court, in accordance with a plea bargain between appellant and the State, assessed punishment at 25 years' confinement. In his sole issue, appellant contends that the trial court erred by denying his motion for disclosure of the confidential informant's identity. We affirm.
BACKGROUND
On February 13, 2015, Houston Police Department ["HPD"] Officer J. Castro received information from a confidential informant and then proceeded to a Valero gas station at I-45 and College Avenue ["the Airport Valero"] to set up surveillance. Castro saw three vehicles at the Airport Valero—a black Chevy Malibu driven by co-defendant Irving Gonzalez, a black pick-up truck, and a green car. Appellant was not present. Castro watched while a brief discussion took place between some of the drivers of the vehicles. When the Chevy Malibu driven by Gonzalez left, Castro followed it into a residential neighborhood to a house located at 441 Pecan Street. At that location, appellant came out of the house, and Gonzalez and appellant were seen moving around behind the passenger seat. Gonzalez then drove away, with appellant in the passenger seat. Castro followed.
Gonzalez eventually entered the freeway, where he was stopped because he did not signal a lane change and appellant was not wearing a seatbelt. Gonzalez gave written consent to search his car, and 5.9 kilograms of cocaine were recovered from inside the void of the front passenger seat. Gonzalez and appellant were both arrested. The house at 441 Pecan was later searched and items linking appellant to the cocaine were recovered from his bedroom.
The Motion Supported by Appellant's Affidavit
Appellant filed a Motion For Disclosure of the Identity of All Informants, asserting that "the informant's identity must be disclosed because: (1) the informant participated in the offense; (2) the informant's testimony is necessary to a fair determination of guilt/innocence, (3) the informant is a witness, and (4) the informant is a witness to facts disproving the assertion that the stay was a lawful one." In support of his motion, appellant filed an affidavit containing the following:
My name is Christopher Gutierrez. I am the Defendant in Cause Number 1436008 styled State of Texas v. Christopher Gutierrez. I was arrested together with Irving Gonzalez[.] On February 14, 2013. I did not place or assist in placing cocaine in [Gonzalez's] car on the day we were arrested. Any cocaine found in [Gonzalez's] car was in that car before he ever picked me up.
On February 14, 2013, [Gonzalez] picked me up at my home. He had called me about an hour before he picked me up. He told me he was in town. He invited me to lunch. While we were on our way to lunch, [Gonzalez] was talking to someone else on his phone. That person was giving [Gonzalez] directions. [Gonzalez] drove to Valero on College and I-45. He told me he had to meet a friend. As we arrived at the Valero, [Gonzalez's] friend was still on the phone and told [Gonzalez] to follow him. The friend was sitting watching for [Gonzalez] in a black Ford Ranger truck. We passed right by him within 20-30 feet of him. I had my seat belt on and he would have clearly seen that I was wearing my seatbelt. [Gonzalez] passed up the Valero and entered 45 via the entrance ramp. [Gonzalez] signaled as
he entered the freeway and his friend would have seen that [Gonzalez] signaled. [Gonzalez] asked me what was the quickest way to Southwest Houston. The police pulled us over less than five minutes later.
I never spoke to [Gonzalez's] friend. I had no dealings with him. I did not know at the time that [Gonzalez] was delivering drugs to this person.
The First In Camera Hearing
Appellant's counsel represented to the trial court that he believed that the driver of the black Ford Ranger was the confidential informant and could provide information necessary to fairly determine appellant's guilt or innocence. Specifically, he believed that the driver of the black truck could offer evidence about whether Gonzalez committed a traffic offense that justified the stop of his vehicle.
Thereafter, on September 15, 2014, the trial court held an in camera hearing to allow the State an opportunity to rebut appellant's affidavit, which he had offered to support a plausible showing that disclosure of the confidential informant was required. The only witness at the hearing was HPD Officer Castro, and the trial court conducted the questioning. After the in camera hearing, the trial court told the parties:
Based on what I've learned as to the information—or the information given to me by the officer, that the informant would not be able to testify to anything in regard to that traffic stop, and based on [counsel's] request that the informant—if the informant was in the home and could give information regarding what was going on at the
home, who was there, who had control over it, what happened at the home, based on my conversations with the officer, the informant would not be able to give any of that information.
The Renewed Motion to Disclose Confidential Informant
In January 2016, appellant renewed his request for disclosure of the confidential informant, this time relying on a DEA report prepared by Officer Castro. Based on Castro's report, appellant believed that the confidential informant was present at the Airport Valero where Gonzalez first met two men before leaving to pick up appellant, and that Castro had been in touch with the confidential informant several times during the day, both before and after the traffic stop. Appellant no longer believed that the informant was the driver of the black pick-up truck, but was focused on the driver of the green car.
The Rule 508 Hearing
Based on the additional information in Castro's report, the trial court held Rule 508 hearing in open court, at which both Castro and appellant's co-defendant, Gonzalez, who had already pleaded guilty to the same offense, testified.
Gonzalez's testimony
Gonzalez testified that he drove a black Malibu to the Airport Valero, where he met Angel Acosto, who was driving a black pick-up truck, and another, unidentified man, who was driving a small green car. All three men got out of their cars and had a 15 to 20 minute discussion. Gonzalez then left the Airport Valero and drove down College Avenue into a residential area, where he stopped and picked up appellant. He then passed a second Valero station ["the College Valero"] on his way back to I-45. The black pick-up truck and the small green car were waiting for him at the College Valero, and, as he approached, with appellant now in the passenger seat, the green car pulled out in front of him and the black pick-up truck pulled out behind him. All three cars proceeded down College Avenue toward I-45, where they turned left and headed south on I-45. Gonzalez said that he saw the man in the black truck and the man in the green car at both Valero gas stations.
Before I went to [appellant's] house, I stopped there with them at [the Airport Valero]. And whenever I left [appellant's] house, I saw them at [the College Valero] but I was just driving by.
Gonzalez testified that appellant was wearing his seatbelt and that he will not drive unless his passengers wear their seatbelts. Gonzalez testified that, as he approached the freeway, he saw a police car stopped on the shoulder. As a sign of respect he said, he signaled and changed lanes to allow room for the patrol car. He testified that he was only one or two car lengths from the Acosta's black truck and the small green car at all times. He could not, however, remember what color clothing either man was wearing. Gonzalez also testified that he knew that the man driving the black truck was Angel Acosta.
Castro's testimony
Castro testified that, based on information he had received from the confidential informant, he set up surveillance of the Airport Valero. Gonzalez arrived at 4:30 p.m. driving a black Chevy Malibu. Shortly thereafter, a black truck and a small green car arrived. Gonzalez got out and talked to the man in the black truck, Angel Acosto. Castro did not see Gonzalez talk to the man in the green car.
Gonzalez then drove away, and Castro continued his surveillance, following Gonzalez to a house located at 441 Pecan Street. After Gonzalez picked up appellant, Castro followed him back to I-45. Castro admitted that he did not have surveillance on any other Valero station, but he did have surveillance on Gonzalez's black Malibu, and he never saw the black truck or the small green car again. In fact, the last time that he had seen either of those vehicles was over an hour earlier at the Airport Valero. Neither of those vehicles were present when police stopped Gonzalez and obtained his consent to search the car.
Although Castro did not see appellant get into Gonzalez's car, DEA air surveillance watched appellant and Gonzalez "moving about the rear compartment of the front right passenger seat of GONZALEZ's vehicle (black Malibu)."
The Second In Camera Hearing
Because there were "some unanswered questions for [the trial court] regarding the testimony of the witnesses," specifically, "conflicts in Mr. Gonzalez's and [appellant's] statements about what happened," the trial court determined that another in camera hearing was required. Again, Officer Castro testified and the trial court conducted questioning.
Although not discussed in detail in this opinion, the appellate record contains a sealed copy of the record from both in camera hearings, and is aware of, and has considered, the evidence presented to the trial court in conducting this review.
Trial Court's Ruling
At the conclusion of the evidence—both on the record and in camera—the trial court stated:
Based on my review of the evidence presented, the Court is going to deny the defense motion to produce the confidential informant. I don't think I need to make any findings, but I will tell you that much of my decision in this matter is based on the lack of credibility of Mr. Gonzalez.
DENIAL OF MOTION TO DISCLOSE INFORMANT'S IDENTITY
In his sole issue, appellant contends "the trial court erred in denying the motion for disclosure of the informant's identity."
Standard of Review and Applicable Law
The State has the privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in a criminal investigation. See TEX. R. EVID. 508(a). Among other exceptions, a confidential informant's identity must be disclosed if the informant's testimony is necessary to fairly determine the accused's guilt or innocence. See TEX. R. EVID. 508(c)(2). The accused bears the burden to establish a plausible showing that the confidential informant's testimony is necessary for a fair determination of guilt or innocence. See Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991); Long v. State, 137 S.W.3d 726, 732 (Tex. App.—Waco 2004, pet. ref'd). When the informant's information is used only to establish probable cause, and the informant was not a participant in the offense for which the defendant is charged, the identity of the informant need not be disclosed because his testimony is not essential to a fair determination of guilt. See Washington v. State, 902 S.W.2d 649, 656-57 (Tex. App.—Houston [14th Dist.] 1995, pet. ref'd).
If the accused meets this burden, the trial court must then conduct a hearing outside the presence of the jury to allow the State to rebut the accused's plausible showing. See Bodin, 807 S.W.2d at 318-19; Long, 137 S.W.3d at 732 (citing Bailey v. State, 804 S.W.2d 226, 230 (Tex. App.—Amarillo 1991, no pet.)). We review the trial court's determination to deny appellant's motion for an abuse of discretion. Ford v. State, 179 S.W.3d 203, 210 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd); Sanchez v. State, 98 S.W.3d 349, 356 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd). We affirm the ruling unless the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Further, we may not substitute our judgment for that of the trial court; rather, we must decide whether the trial court acted arbitrarily or unreasonably without reference to any guiding rules or principles. Id.
Because, here, the trial court conducted not one, but two in camera hearings, we will assume without deciding that appellant made the initial "plausible showing" required by Rule 508. Thus, the sole issue presented for this Court is whether the trial abused its discretion in denying appellant's motion based on the State's rebuttal of appellant's initial plausible showing.
Analysis
Appellant, relying Lopez v. State, 824 S.W.2d 298 (Tex. App.—Houston [1st Dist.] 1992, no pet.), and Mendoza v. State, 823 S.W.2d 752 (Tex. App.—Dallas 1992, pet. ref'd), contends that the trial court abused its discretion by refusing to disclose the identity of the confidential informant because the confidential informant was a participant in, and eyewitness to, the offense. Specifically, appellant asserts the confidential informant "was present at the [Airport] Valero meeting to finalize the details of the transaction" and "was driving one of the two vehicles that, according to Gonzalez, drove together with him caravan-style [from the College Valero] while Gonzalez was transporting the cocaine."
In Lopez, the confidential informant introduced an undercover police officer to a man named "Ponce." 824 S.W.2d at 299. At this initial meeting, with the confidential informant present, the officer and Ponce discussed setting up a drug deal. Id. A week later, Ponce, again through the confidential informant, arranged a meeting in a parking lot—the officer was going to bring $92,000 to exchange for 4 kilos of cocaine. Id. The officer and his partner met Ponce and the confidential informant at the agreed time and place. Id. Ponce directed the officer to another parked car, in which the defendant was waiting to see the money. Id. Once the defendant saw the money, he told the officer to follow him to another location where the drugs were being held. Id. The officer followed the defendant to a house where the cocaine was located. Id. When the officer arrived, Ponce and the confidential informant were already there. Id. The defendant argued, and this Court agreed, that the trial court should have ordered the disclosure of the confidential informant because (1) the informant was present during the initial meeting setting up the transfer of the cocaine, and (2) was present at the time of the offense and the arrest. Id. at 300.
In Mendoza, the defendant was charged with conspiracy to possess cocaine. 823 S.W.2d at 752. A confidential informant had told an undercover officer that the defendant was interested in purchasing a large amount of cocaine, so the officer set up a reverse sting operation, in which they purported to be drug dealers selling cocaine. Id. at 753. As a part of the sting operation, two officers went to a hotel room, where the defendant, the confidential informant, and another officer were waiting. Id. At some point during the transaction, appellant said that he knew someone else who would purchase cocaine, and he left, soon returning with three other men. Id. While appellant and the confidential informant waited in the motel room, the three other men walked outside with an officer "to get the dope." Id. The three men were arrested outside, while the defendant was arrested in the motel room. Id. There was evidence that the confidential informant quoted the price for the cocaine and was present in the motel room during the entire operation. Id.
The critical issue in both Lopez and Mendoza was that the confidential informant was present during the commission of the offense and resulting arrest, and, in the case of Mendoza, actually participated by negotiating the transaction at the scene of the arrest.
Here, in contrast, the evidence shows only that an unidentified man in a green car was present at the Airport Valero when Castro began surveillance of Gonzalez. Even if we assume that the driver of the green car was the confidential informant, Officer Castro testified that he never saw anyone talk to the man in the green car, while Gonzalez testified that all three men present, including the man in the green car, talked for about 15-20 minutes before Gonzalez left to go pick up appellant. As the factfinder, the trial court was entitled to believe Castro and disbelieve Gonzalez. See Hall v. State, 778 S.W.2d 473, 474 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd) (holding trial court is exclusive judge of credibility of witnesses and weight afforded their testimony at Rule 508 hearing).
It is also noteworthy that appellant, who was charged with possession of drugs, was not even present at the Airport Valero meeting.
The same is true regarding Gonzalez's testimony that, when he passed a second Valero ["the College Valero"] after picking up appellant, the black truck and green car that he had met the first Valero ["the Airport Valero"] pulled out in front of and behind him, respectively, and that the drivers of those vehicles could provide testimony regarding whether he had committed a traffic offense. However, Gonzalez's testimony conflicts with that of Castro, who said that, while following Gonzalez to 441 Pecan and back to the interstate, he never saw the black truck or green car again. In fact, he never saw them after Gonzalez left the Airport Valero to go get appellant. The trial court, again, was entitled to believe Castro and disbelieve Gonzalez.
In fact, Gonzalez's testimony about a second Valero conflicts with appellant's own affidavit, in which he averred that the black truck pulled out of the "Valero on College and I-45" and that Gonzalez followed him. In sum, appellant's own affidavit says that Gonzalez followed the black truck from the Airport Valero, while Gonzalez testified that he actually followed the green car, with the black truck behind him, from the College Valero. Appellant's affidavit, though purportedly about the same event as Gonzalez's testimony, references a different gas station and does not mention a green car at all. Indeed, there was no mention of a second Valero until Castro testified that Gonzalez was in the left lane on College to turn south on the freeway, but the Valero was on the right. At this point, when Gonzalez later testified, he "clarified" that there was a second Valero on the left that he drove by when the black truck and green car pulled out.
Thus, based on the evidence presented, the trial courtt could have reasonably concluded that the confidential informant was not present when appellant possessed the drugs at the house at 441 Pecan, nor was he present when police stopped Gonzalez and appellant on I-45 and discovered the drugs hidden in appellant's seat. Similarly, it could have concluded that, even if the confidential informant was as the Airport Valero an hour before appellant's arrest, he did not participate in discussions, if any, that took place there, or that any discussions were not in furtherance of appellant's possession of the drugs because appellant was not even at the gas station and was not arrested in possession of the drugs until over an hour later. As such, the holdings in Lopez and Mendoza are inapplicable.
Appellant also contends that the confidential informant was a material fact witness to the challenged traffic stop and that, had appellant known the informant's name, he could have obtained the informant's testimony that the stop was unlawful, thus entitling appellant to a jury instruction pursuant article 38.23 of the Code of Criminal Procedure. However, we have previously noted that the trial court could have reasonably concluded that Castro's testimony that the green car was not near the scene of the stop of Gonzalez's vehicle was more believable, thereby rebutting Gonzalez's testimony that the green car was present.
Article 38.23 provides in pertinent part:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.TEX. CODE CRIM. P. ANN art. 38.23(a) (West 2005).
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
Based on the evidence presented to the trial court, both in court and in camera, we cannot conclude that the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Higley and Bland. Do not publish. TEX. R. APP. P. 47.2(b)