Opinion
Nos. 05-04-00502-CR, 05-04-00503-CR
Opinion Filed October 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F-0373755-N F-0351328-UN. Affirm.
Before Justices MOSELEY, BRIDGES, O'NEILL.
OPINION
Appellant appeals his convictions for unlawful possession with intent to deliver phencycliden (PCP) and methylenedioxy methamphetamine (ecstasy). After finding appellant guilty, the jury assessed punishment at thirty years' confinement in the PCP case and twenty-five years' confinement in the ecstasy case. In two points of error, appellant contends (1) the trial court erred in refusing to order the State to reveal the identify of its confidential informant, and (2) he received ineffective assistance of counsel. For the following reasons, we affirm the trial court's judgments. On May 5, 2003, a confidential informer (CI) purchased marijuana at appellant's residence. Police obtained a search warrant for the residence and executed it two days later. At the time the warrant was executed, appellant was at the residence with his girlfriend. When police entered, appellant was sitting on a couch. He jumped up, grabbed a backpack and ran into the kitchen. Appellant then threw the backpack into a corner and tried to get out the back door. PCP and ecstacy were found in the backpack. In his first point of error, appellant contends the trial court erred in denying his pretrial motion requesting that the State be required to reveal the identify of its CI. The State has a privilege to refuse to disclose the identity of a CI. Tex. R. Evid. 508(a). An exception to the privilege exists if the defendant makes a showing that the informant may be able to give testimony necessary to a fair determination of the issues of guilt/innocence. Tex. R. Evid. 508(c)(2). If a defendant makes such a showing, the trial court "shall give [the State] an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony." Tex. R. Evid. 508(c)(2). The defendant has the threshold burden of demonstrating that the identity must be disclosed. Bodin v. State, 807 S.W.2d 313, 318 (Tex.Crim.App. 1991). Although the defendant need only make a plausible showing of how the informant's information may be important, the evidence must be more than mere conjecture or speculation. See Bodin, 807 S.W.2d at 318. According to appellant, the CI's identity would be helpful to his defense because the CI could prove that appellant did not sell marijuana to the CI. Specifically, he asserts the CI might testify it was appellant's roommate that sold the CI drugs. Appellant was not charged with selling or possessing the marijuana the CI purchased. Rather, he was charged with the possession of two entirely different controlled substances two days later. Whether it was appellant or his roommate that sold marijuana two days before the search warrant was executed was not material to whether appellant committed the charged offense. Appellant also asserts the trial court's refusal to require the State to disclose the informant's identity violated his rights under the due process clause of the United States Constitution. Appellant did not raise a constitutional objection in the trial court. Therefore, he waived any such error. See Tex. R. Crim. Evid. 33.1(a); Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). Moreover, the only authority appellant cites to support his due process complaint is Roviaro v. State, 353 U.S. 53 (1957). Roviaro was determined under the federal common law, not the due process clause. See Beal v. State, 35 S.W.3d 677, 685 (Tex.App.-Houston [1st Dist.] 2000), rev'd on other grounds, 91 S.W.3d 794 (Tex.Crim.App. 2002); Heard v. State, 995 S.W.2d 317, 321 (Tex.App.-Corpus Christi 1999, pet. ref'd). Rule 508, not federal common law, controls the issue before us. See, e.g., Bodin v. State, 807 S.W.2d 313, 318 (Tex.Crim.App. 1991). In any event, rule 508(c), gives defendants more protection than the federal common law. See id. We overrule the first point of error. In his second point of error, appellant contends he received ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The record must be sufficiently developed to overcome the strong presumption of reasonable assistance. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Generally, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Further, trial counsel should ordinarily be given an opportunity to explain his actions before being denounced as ineffective. Bone v. State, 77 S.W.3d 828, 836 (Tex. 2002). Appellant contends he received ineffective assistance of counsel because trial counsel elicited testimony from appellant on direct examination that he was on deferred adjudication probation. According to appellant, counsel was ineffective because evidence of deferred adjudication is not a "conviction" and is not admissible as impeachment evidence under rule 609(a) of the rules of evidence. The State counters that even if appellant's deferred adjudication status was not admissible to impeach under rule 609(a), it was admissible to show appellant's bias or interest. See Moreno v. State, 22 S.W.3d 482, 486 (Tex.Crim.App. 1999); see also Maxwell v. State, 48 S.W.3d 196, 199-200 (Tex.Crim.App. 2001). Thus, the State asserts appellant's trial counsel raised the issue before the State could to appear more open and honest. The record in this case is silent regarding counsel's reasons for presenting evidence of appellant's deferred adjudication probation status. Under the facts of this case, we cannot conclude there is no possible basis in strategy or tactics for counsel's actions. We overrule appellant's second point of error. We affirm the trial court's judgments.