Opinion
No. 05-06-01440-CR
Opinion issued May 7, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause No. F05-58575-WJ.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
OPINION
Lark Laquin Jenkins appeals his conviction for possession with intent to deliver cocaine in an amount of four grams or more but less than 200 grams. A jury convicted appellant, and the trial court sentenced him to thirty years' confinement. In a single issue, appellant argues the trial court erred in refusing to allow cross-examination concerning a confidential informant and refusing to require the disclosure of the confidential informant's identity. We affirm the trial court's judgment. Because appellant does not challenge the sufficiency of the evidence to support his conviction, only a brief recitation of the facts is necessary. Dallas police received an anonymous citizen call that drugs were being sold at a house in Dallas County. Based upon this information, Dallas police officer Damaso Colon-Melendez sent a confidential informant twice to purchase drugs at the house and obtained a warrant to search the house. During the execution of the warrant, police found drugs and drug paraphernalia and arrested appellant. Appellant was later determined to be the party named on the house's lease. The officers ultimately seized approximately twenty grams of cocaine. At appellant's subsequent trial, the trial court denied appellant's request to cross examine Colon-Melendez about the reliability and identity of the confidential informant. The trial court denied appellant's request. The jury convicted appellant, and this appeal followed. In a single issue, appellant argues the trial court erred in refusing to let him cross examine Colon-Melendez about the reliability and identity of the confidential informant. Rule of evidence 508 provides a privilege for the State to withhold a confidential informant's identity. See Tex. R. Evid. 508(a). Among several exceptions, the 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). To meet his burden, the accused must provide more than mere conjecture or speculation. Bodin, 807 S.W.2d at 318. The accused must show the informant's testimony would significantly aid the jury in determining guilt or innocence. Id. If the accused meets his burden, the trial court must review the testimony in-camera to allow the State to rebut the accused's plausible showing. Long, 137 S.W.3d at 732. We review the trial court's determination to deny appellant's motion for an abuse of discretion. Sanchez v. State, 98 S.W.3d 349, 356 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Here, appellant was not arrested and charged with the possession offense witnessed by the confidential informant. Instead, appellant was arrested and charged for possessing with intent to deliver the cocaine discovered during the later search of the house. There is no evidence the confidential informant was present when the search warrant was executed. Whether appellant possessed and sold drugs to the informant or others at other times or on different dates has no bearing upon whether he possessed cocaine with the intent to deliver at the time of the search. Thus, we reject appellant's contention that the confidential informant is a material witness. Compare Anderson v. State, 817 S.W.2d 69, 72 (Tex.Crim.App. 1991) (informant who accompanied undercover officer and witnessed drug offense at issue was material witness) with Long, 137 S.W.3d at 732-33 (informant who supplied information establishing probable cause for issuance of search warrant not material witness in methamphetamine manufacture prosecution arising from execution of the warrant where informant was not present during search and evidence supporting conviction supplied by officer who conducted the search). We conclude appellant did not carry his burden to plausibly show that the confidential informant is a material witness or that the informant's testimony is necessary to fairly determine his guilt or innocence. See Bodin, 807 S.W.2d at 318; Long, 137 S.W.3d at 732. Because the trial court did not abuse its discretion, we overrule appellant's single issue. We affirm the trial court's judgment.