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Date: 08-30-2020
Case Style:
Jose Rivera Garcia v. The State of Texas
Case Number: 01-18-00974-CR
Judge: Memorandum Opinion by Chief Justice Radack
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: Christopher Conrad
The Honorable Kim K Ogg
Defendant's Attorney:
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Call 888-853-4800 if you need a Criminal Defense Attorney in Texas .
Description:
Houston Police Department Officer D. Rosales testified that, on the evening
of March 4, 2014, police officers set up surveillance at Garcia’s Tires and Wheels in
response to information provided by a confidential informant. Officer Rosales
observed a silver Nissan Xterra arrive at the tire shop and appellant get out. A few
minutes later, Mario Solorzano arrived at the tire shop in a gray Pontiac and parked
the Pontiac directly behind the Xterra. Appellant opened the rear driver’s side door
of the Xterra, and Solorzano reached into the Xterra and removed a plastic bag that
contained a black block-shaped object. Solorzano placed the package into the
Pontiac, and he and appellant got into their respective vehicles and drove off.
Police officers followed Solorzano to a house near the tire shop, where he got
out of the Pontiac without the package and entered the house. Shortly thereafter,
Solorzano and his mother left the house, got into the Pontiac, and drove to a strip
center. Police followed Solorzano and his mother to the strip center, approached the
Pontiac, and obtained consent from Solorzano’s mother to search the vehicle. During
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the search, officers discovered a speaker box on the backseat of the passenger’s side,
which matched the description of the item that Officer Rosales observed Solorzano
remove from appellant’s Xterra at the tire shop. Officer Rosales testified that the
speaker box contained methamphetamine, and Mona Colca, a forensic analyst with
the Houston Forensic Science Center, testified the methamphetamine weighed
889.93 grams.
Solorzano also testified at trial that appellant approached him and asked if he
knew anyone who would be interested in buying methamphetamine. Solorzano
arranged for a buyer of the methamphetamine and, on the day of the incident,
appellant told Solorzano to come to the tire shop to pick up the methamphetamine.
When Solorzano arrived, appellant opened the door of the Xterra and told Solorzano
that the package containing the methamphetamine was inside the speaker box.
Solorzano took the package out of the Xterra and drove away. He then went home
and called the buyer to arrange a meeting spot to drop off the methamphetamine.
Solorzano testified that he had his mother drive him to the meeting spot, and that,
once there, they were approached by officers who searched the vehicle and
discovered the methamphetamine. Solorzano further testified that he was “the
middle person” between appellant (his supplier) and the buyer. He also testified
appellant told him that the package of methamphetamine was inside the speaker box
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and that, based on all the circumstances, he believed appellant knew that the speaker
box contained methamphetamine.
Before trial, appellant filed a motion to require disclosure of the identity of
the confidential informant. The trial court conducted a hearing on appellant’s motion
and explained that it had met with Officer Rosales in camera. The trial court stated
that it had asked the questions provided in appellant’s supplemental memorandum
in support of his motion to disclose and that it had concluded “that the confidential
informant was not present at the scene on March 4th, 2014 and therefore [was] not
required to be disclosed.” Appellant argued that the informant’s identity would still
be required to be disclosed if he participated in the offense, that the informant did
participate in the offense by setting up the narcotics transaction, and that such was
enough for the trial court to require the disclosure of the informant’s identity. The
trial court found that “while the informant did set up a narcotics transaction[,] the
informant was not present at the time Mr. Garcia allegedly possessed the
methamphetamine nor was the informant present at the time the officers recovered
the methamphetamine.” The trial court denied appellant’s motion.
Disclosure of Identity of Confidential Informant
In his first issue, appellant argues that the trial court abused its discretion in
denying his request for disclosure of the identity of the confidential informant.
Appellant contends that because the informant “set up the transaction that is the basis
5
of this prosecution[,] [h]e possessed personal knowledge about the offense that was
necessary to a fair determination of guilt or innocence.”
A. Standard of Review
We review the trial court’s ruling on a motion to disclose the identity of a
confidential informant under an abuse-of-discretion standard. Blake v. State, 125
S.W.3d 717, 728 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Under this
standard, we affirm the judgment unless the trial court’s decision was so clearly
wrong as to lie outside that zone within which reasonable persons might disagree.
Id.
B. Applicable Law
Generally, the State has a privilege to withhold the identity of any person who
provides information relating to, or assisting in, the investigation of a possible crime.
TEX. R. EVID. 508(a). If it appears from the evidence in the case, or from some other
showing by a party, that an informant may be able to give testimony necessary to a
fair determination of a material issue on guilt or innocence, and the State invokes
the privilege, the trial court must give the State an opportunity to show in camera
facts relevant to determining whether the informant can, in fact, supply that
testimony. TEX. R. EVID. 508(c)(2). A party requesting disclosure under Rule 508
has the threshold burden to demonstrate that the informant’s identity must be
disclosed. Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991). Before a
6
court orders the identity of the informant to be revealed, the informant’s potential
testimony must be shown to significantly aid the defendant—mere conjecture about
possible relevance is insufficient to meet the threshold burden. Id. A party seeking
disclosure must make a plausible showing of how the informant’s information may
be important. See Southwell v. State, 80 S.W.3d 647, 650 (Tex. App.—Houston [1st
Dist.] 2002, no pet.). Only after a defendant makes a plausible showing is the trial
court required to hold an in-camera hearing to determine whether disclosure is
necessary. Olivarez v. State, 171 S.W.3d 283, 292 (Tex. App.—Houston [14th Dist.]
2005, no pet.).
When it is shown that the informant was an eyewitness to an alleged offense,
then the informant can give testimony necessary to a fair determination of the issues
of guilt or innocence. Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991).
But, if the informant’s information was used only to establish probable cause for a
search warrant or if the informant merely provided information that led police to
investigate a potential offense and the informant was neither a participant in the
offense for which the accused was charged nor present when a search warrant was
executed or an arrest was made, then the identity of the informant need not be
disclosed because the testimony is not essential to a fair determination of guilt or
innocence. Ford v. State, 179 S.W.3d 203, 210 (Tex. App.—Houston [14th Dist.]
2005, pet. ref’d).
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C. Analysis
Appellant argues that because the informant in this case set up the narcotics
transaction, the informant possessed personal knowledge about the offense that was
necessary to a fair determination of guilt or innocence. Relying on Bernard v. State,
566 S.W.2d 575, 578 (Tex. Crim. App. 1978), appellant argues that the presence of
the informant was not the critical issue in this case because “[a]n informer who
makes the arrangements for the delivery of a controlled substance is in the unique
position of being able to shed light on whether the appellant knowingly committed
the act with which he was charged.”
We have reviewed the sealed record from the in-camera hearing at which
Officer Rosales described the facts related to the confidential informant. It is evident
from Officer Rosales’s testimony at that hearing that the informant was involved in
arranging the narcotics transaction to some extent, but that the informant did not
have any contact with appellant. In fact, the informant did not know appellant.
Officer Rosales’s testimony further demonstrated that the informant did not
participate in, and was not present for, the exchange between Solorzano and
appellant. The informant did, however, provide information to police that led police
to believe that the narcotics exchange might take place at Garcia’s Tire Shop, which
resulted in officers placing the tire shop under surveillance.
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Contrary to appellant’s claims, the fact that an informant had some
involvement in arranging a narcotics transaction does not automatically mean that
the informant’s identity must be disclosed. We conclude that Bernard, on which
appellant relies, is distinguishable. There, the facts surrounding the narcotics
transaction were hotly contested. The State put on evidence that a confidential
informant had called the defendant and arranged for the undercover police officer to
come by the defendant’s residence that evening. Bernard, 566 S.W.2d at 576. Thus,
the informant had direct contact with the defendant. In contrast to the State’s
evidence, the defendant testified that he had left his residence on the day in question
in the morning and did not return until that night, after the alleged narcotics
transaction took place. Id. at 577. In holding that the informant’s identity should
have been disclosed, the Court of Criminal Appeals found that the informant “was
in a unique position to confirm or deny he had made such arrangements, to shed light
on the [defendant’s] defense of alibi, and on whether appellant knowingly committed
the act charged.” 566 S.W.2d at 578. In contrast to Bernard, wherein the informant
had direct contact with the defendant, here, the informant had no contact with
appellant (and, in fact, did not know him), was not present during the exchange
between Solorzano and appellant, and could not have provided information as to
whether appellant knowingly possessed the methamphetamine.
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Instead, we conclude that the facts herein are more in line with those cases in
which this court has previously held that the disclosure of the informant’s identity
was not required, even though the informant set up the narcotics transaction, because
the informant did not witness or otherwise participate in the offense. For example,
in Boykin v. State, No. 01-00-00678-CR, 2002 WL 188462, at *1 (Tex. App.—
Houston [1st Dist.] Feb. 7, 2002, no pet.) (not designated for publication), the
confidential informant set up a narcotics transaction between the defendant and an
undercover police officer, drove the undercover officer to the location of transaction,
identified the defendant to the officer, and then left the scene. This court held that,
because the informant was not an eyewitness to the transaction, the informant’s
testimony would not have been necessary to determination of the defendant’s guilt
or innocence. See also Cannady v. State, No. 01-03-00466-CR, 2004 WL 1119951,
at *2–3 (Tex. App.—Houston [1st Dist.] May 20, 2004, no pet.) (mem. op., not
designated for publication) (holding trial court did not abuse its discretion by
denying motion to disclose when informant called friend of defendant to set up
meeting place for narcotics transaction and drove police officer to location where
transaction was to occur, but stayed in vehicle and did not see any portion of
transaction between officer and defendant).
In the instant case, the trial court denied the motion to disclose because the
informant was not present at the scene, i.e., not an eyewitness to the offense. Being
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an eyewitness to the offense is one reason, but not the only reason, why an informant
may be able to offer testimony necessary to a fair determination of the issues of guilt
or innocence. Here, the facts demonstrate that not only was the informant not an
eyewitness to the offense, but he also did not participate in the offense and was not
present during the exchange between appellant and Solorzano. Moreover, the
informant did not have any contact with appellant and could not provide testimony
as to whether appellant knowingly possessed the methamphetamine for which he
was charged. Thus, we hold that the trial court did not abuse its discretion in ruling
that the State was not required to disclose the identity of the confidential informant
because the informant’s testimony was not essential to a fair determination of guilt
or innocence. See Boykin, 2002 WL 188462, at *1; Cannady, 2004 WL 1119951, at
*2–3.
We overrule appellant’s first issue.
Testimony Regarding Appellant’s Mental State
In his second issue, appellant argues that the trial court abused its discretion
by overruling his objection to the following testimony from Officer Rosales that
appellant knowingly possessed methamphetamine:
STATE: Officer Rosales based on your training and experience when
someone is in possession of approximately $90,000.00 of narcotics
would they have knowledge of what they had?
DEFENSE COUNSEL: Same objection Your Honor speculation.
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THE COURT: Overruled.
OFFICER ROSALES: Yes.
Appellant contends this testimony was inadmissible because it went to an ultimate
issue to be decided by a jury and was not necessary to a clear understanding of the
evidence before the jury.
A. Standard of Review
We review a trial court’s decision to exclude evidence under an abuse of
discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).
We will not reverse a trial court’s ruling unless that ruling falls outside the zone of
reasonable disagreement. Id.
B. Applicable Law
Testimony of a defendant’s culpable mental state is a fact question for the
jury’s determination. Taylor v. State, 774 S.W.2d 31, 34 (Tex. App.—Houston [14th
Dist.] 1989, pet. ref’d). For lay opinion testimony about a culpable mental state to
be admissible, the trial court must determine whether the opinion is (1) rationally
based on perceptions of the witness and (2) helpful to a clear understanding of the
witness’stestimony or to the determination of a fact issue. TEX.R.EVID. 701; Fairow
v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997). Generally, if the trial court
determines that lay witness opinion testimony is an attempt to communicate the
subjective mental state of the actor, the trial court should exclude the testimony
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because it could never be based on personal knowledge. Fairow, 943 S.W.2d at 899–
900. However, such an opinion will satisfy the personal knowledge requirement for
lay witnesses if the testimony is an interpretation of the witness’s objective
perception of events based on his own senses or experience. Id. at 899.
The opinion must also be helpful to the trier-of-fact either to understand the
witness’s testimony or to determine a fact issue. Id. at 900. The trial court considers
factors to make this determination, including whether the testimony is overly
confusing or complicated, and the degree to which the witness is able to convey the
events from which the opinion is drawn. Id. The helpfulness of an opinion will be
determined by the facts of the case. Id.
C. Analysis
Appellant argues that Officer Rosales’s testimony that appellant knowingly
possessed the methamphetamine hidden within the speaker box was inadmissible
because it was neither rationally based on the perceptions of Officer Rosales, nor
helpful to the jury. See Fairow, 943 S.W.2d at 898. However, even if we assume that
the trial court erred in admitting this testimony, we conclude that any such error was
harmless in light of other evidence on the same subject that was admitted without
objection and the overwhelming evidence of guilt.
Generally, a violation of the rules of evidence that results in the erroneous
admission of evidence is non-constitutional error and is analyzed for harm pursuant
13
to Texas Rules of Appellate Procedure 44.2(b). See TEX. R. APP. P. 44.2(b); Johnson
v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In conducting an analysis
under Rule 44.2(b), we examine the entire proceeding to determine whether the
alleged error had a “substantial and injurious effect or influence in determining the
jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A
criminal conviction should not be overturned for non-constitutional error if we
determine that the error did not influence the jury or had but a slight effect. Johnson,
967 S.W.2d at 417.
As detailed above, Officer Rosales testified extensively about what he saw on
the night of March 4, 2014, including that he saw Solorzano take a speaker box out
of the back of appellant’s vehicle that was found to contain methamphetamine.
Solorzano’s testimony corroborated Officer Rosales’s version of the events.
Solorzano specifically testified that appellant told him to come to the tire shop after
work to pick up the methamphetamine, that the package of methamphetamine was
inside the speaker box, and that he believed that appellant knew that the speaker box
contained methamphetamine. Thus, Officer Rosales’s testimony was merely
cumulative of other properly admitted evidence, and the conclusion that appellant
knowingly possessed the methamphetamine was a reasonable inference given the
evidence of guilt. See Macias v. State, No. 14-15-00030-CR, 2016 WL 1578787, at
*4 (Tex. App.—Houston [14th Dist.] Apr. 16, 2016, pet. ref’d) (mem. op., not
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designated for publication) (holding any error in admitting officer’s opinion
regarding defendant’s culpable mental state was harmless because other evidence on
same subject was admitted without objection and there was overwhelming evidence
of guilt); Taylor v. State, 774 S.W.2d 31, 35 (Tex. App.—Houston [14th Dist.] 1989,
pet. ref’d) (same). We hold that any error in the admission of this evidence did not
influence the jury or had but a slight effect and was, therefore, harmless. See
Johnson, 967 S.W.2d at 417.
We overrule appellant’s second issue.
Outcome: We affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: