Blas Garza Perez v. State , 414 S.W.3d 784 ( 2013 )

Opinion issued August 22, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00950-CR
———————————
BLAS GARZA PEREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Case No. 1272117
OPINION
Blas Garza Perez was convicted of possession with intent to deliver
methamphetamine 1 and a jury assessed his punishment at fifteen years’
1
TEX. HEALTH & SAFETY CODE ANN. § 481.102(6), .112 (a), (f) (West 2010).
incarceration and a $2,500 fine. Perez contends that the trial court erred by not
ordering the disclosure of the true identity and background of a confidential
informant in violation of Texas Rule of Evidence 508, and that the State violated
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) by withholding such
information.
We affirm.
Factual Background
Houston Police Department Officer Valles is an undercover narcotics officer
who regularly uses confidential informants to set up drug buys at which he poses
as the buyer. Valles was introduced to appellant by Rene Garcia, a confidential
informant who had been working with Valles for the previous four years. At their
first meeting, Valles told appellant that he sought two kilograms of cocaine and
appellant assured Valles that he thought he could arrange that. Although the
transaction failed to go as planned because the seller’s men brought
methamphetamine instead of cocaine, appellant was ultimately able to arrange for
Valles to purchase a large amount of crystal methamphetamine.
Appellant, who took the stand in his own defense, acknowledged that he had
facilitated Valles’ purchase of the methamphetamine, but testified that he only did
so because Valles and his “close” friend “Rene Flores,” who was working with
Valles as a confidential informant, led him to believe that he was also working for
2
the police as a second confidential informant on the case. Appellant had only
known “Rene” for eight to ten months before his arrest. During those months,
Rene had asked appellant on several occasions if he knew anyone who would sell
him a large amount of narcotics. Rene initially asked appellant if he knew anyone
selling marijuana; appellant did not know of anyone. When appellant was unable
to help him buy marijuana, Rene told appellant that he had a criminal case pending
against him, he was working with the police, and he needed appellant to help him
set up a drug purchase by an undercover narcotics agent in order to avoid going to
prison.
Appellant testified that he agreed to meet with the undercover officer with
whom Rene worked, so Rene arranged a meeting. According to appellant, Valles
told him at that first meeting that “there would be no problem, if [appellant] would
find someone that was selling drugs.” Appellant told Valles that he did not know
anyone selling narcotics, but he would try to find someone. Despite his statements
to Valles, appellant never made any attempt to locate a seller.
According to appellant, Rene, with his four children in tow, subsequently
showed up at the home appellant shared with his daughter and begged appellant to
help him. Rene told appellant that he could not go to prison because his wife had
cancer, and if something happened to her, there would be no one left to care for
their children. According to Rene, Valles was putting a lot of pressure on him to
3
set up the undercover narcotics buy. Moved by Rene’s situation, appellant, whose
own wife had died of cancer eleven years before, told Rene that he was going to try
to help him, but he needed to talk to Valles again, “because otherwise [appellant]
would get involved in problems.” According to appellant, Rene told him that the
police could give him up to $5,000 for putting them in contact with the drug
dealers.
Appellant testified that after his conversation with Rene, he made several
phone calls to relatives, trying to get in contact with one of his cousins in Mexico.
At that second meeting, appellant contacted his cousin in Mexico, using a walkie-
talkie that Valles provided, and he asked him if he knew anyone with a large
amount of cocaine to sell. Even though his cousin only owned a taco truck,
appellant thought that he could help him because, according to appellant, everyone
in Mexico knows where to buy drugs.2 Appellant told his cousin that he was
cooperating with the police and that he would split the $5,000 with him.
Appellant’s cousin found a supplier who sent two men to Houston with the
narcotics that Valles ultimately purchased. Appellant did not know the two men
transporting the narcotics nor had he ever spoken with either of them before they
arrived in Houston. Appellant testified that he had not seen Rene since he was
arrested and he did not know where to find him.
2
Appellant’s cousin and the cousin’s son disappeared after appellant was arrested.
4
Valles was called as a rebuttal witness and denied ever agreeing to use
appellant as a confidential informant or offering appellant any incentives to
participate in the drug deal.
Procedural Background - Disclosure of True Identity of “Rene Flores”
After the private investigator appointed to assist in his defense was unable to
locate the man appellant knew as “Rene Flores,” appellant filed a pre-trial motion
to disclose the identity of the confidential informant, his criminal history, and any
incentives he was offered or received for his cooperation with HPD. Judge
Shawna Reagin held a hearing on this and other pretrial motions at which
appellant’s counsel informed the court that she planned to assert an entrapment
defense based on the fact that Valles and the confidential informant had offered
appellant money if he would assist them by acting as a second informant in the
investigation. Judge Reagin informed the parties that she saw “this as more of a
Brady type situation,” 3 rather than a typical confidential informant situation. The
judge reasoned, “He’s not really a [confidential informant] because [appellant]
knows who it was.” Although she acknowledged that appellant knew him,
appellant’s counsel argued that “Rene Flores” was a “confidential informant
because we don’t know how to get in touch with him.” Judge Reagin subsequently
held an in-camera hearing on the motion during which time she met with Valles
3
See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
5
and his supervisor. When asked if appellant knew the informant, Valles told the
trial court that the two men met several weeks before Valles was introduced to
appellant. According to Valles, the informant and appellant did not know each
other beforehand, but became friends during the investigation.
After the in-camera hearing, Judge Reagin denied appellant’s motion. Three
days later, appellant filed a motion to reconsider the motion to disclose and three
days after that, appellant filed a motion to disclose the true name of the informant,
and a motion for continuance or, in the alternative, a motion to dismiss, arguing
that the information sought was not only subject to disclosure under Texas Rule of
Evidence 508, but it was also exculpatory evidence that the State was required to
disclose under Brady v. Maryland. See 373 U.S. 83, 83 S. Ct. 1194 (1963)
(requiring that State turn over material, favorable evidence to defendant).
Prior to opening statements, Judge Jay Burnett, the visiting judge who
presided over appellant’s trial, considered appellant’s motion to disclose. Judge
Burnett declined to rule on the motion at that time and held his decision in
abeyance. Valles testified for the State later that day. When appellant’s attorney
asked Valles if he knew a man named “Rene Flores,” the State objected that this
was an improper attempt to unmask a confidential informant. Judge Burnett stated
that he was sustaining the State’s objection for the moment and that he would
consider this issue further over lunch. After lunch, Judge Burnett stated on the
6
record that he had reviewed the applicable case law with regard to confidential
informants and he was not in position to “go behind” Judge Reagin’s earlier ruling.
He further stated that he would continue to keep an open mind and he would
reconsider his ruling, if any new facts disclosed during trial warranted such a
result.
The following morning, Judge Burnett stated that he had reviewed a
transcript of the in-camera proceeding and reiterated that his ruling had not
changed, but that he would continue to keep an open mind and would reconsider
the motion if the facts warranted it. Later that same day, appellant’s counsel made
an informal bill of review in which she summarized the testimony she believed that
appellant would have elicited from “Rene”—had he been available to testify.
Judge Burnett denied appellant’s motion to disclose. Appellant then took the stand
and told basically the same version of events that his counsel proffered that “Rene”
would have testified to.
During a brief recess at the end of the day, Judge Burnett swore in a member
of the audience. The man, who identified himself as Rene Garcia Salazar, was
informed that the court would reconvene the next morning and that he was ordered
to be there—“you just come, give your testimony, no problem.” After appellant’s
testimony concluded the next morning, the State recalled Valles as a rebuttal
7
witness. During this testimony Valles revealed the name and current location of
the confidential informant:
Q (By State). Officer, who did you bring with you to court yesterday?
A. I brought my confidential informant.
Q. What is that confidential informant’s name, please?
A. His name is Rene Garcia.
Q. Who did you bring to court with you today, please?
A. The confidential informant.
Q. Rene Garcia?
A. Yes, sir.
At that point, a Hispanic male briefly entered the courtroom with the bailiff.
After he left, the State asked Valles one last question, “Who was that that just
entered the courtroom, sir?” Valles replied, “That’s the confidential informant,
René Garcia.” Defense counsel did not cross-examine Valles about revealing the
identity of the confidential informant, with the following exception:
Q. (By Appellant’s Counsel) And two days ago when you testified,
I asked you, or tried to get information from you about this
confidential informant, didn’t I?
A. Yes, ma’am.
Q. And you refused to give it to me, didn’t you?
A. Yes, ma’am.
Q. Because, among other things, you said it’s too dangerous to
give me that information. Do you remember testifying to that?
8
A. Yes, ma’am.
Q. And yet today two days later, here he is?
A. Yes, ma’am.
Appellant’s Counsel: Pass the witness.
The State rested its case after Valles’ rebuttal testimony concluded. After
the jury was removed, the judge asked appellant’s counsel if she wanted to call the
confidential informant and she replied, “You know, Judge, after all of this I’m
ready to rest as well.” The defense rested without calling Rene to the stand or
requesting a continuance.
Standard of Review
In one issue on appeal, Perez contends that the trial court erred by not
ordering the disclosure of the true identity of “Rene Flores” and his background in
violation of Texas Rule of Evidence 508, and that the State’s failure to disclose the
true identity of the “Rene Flores,” his criminal history, and any incentives he was
offered or received for his cooperation with HPD constitutes a Brady violation.
See Brady, 373 U.S. at 87, 83 S.Ct. at 1196–97 (requiring that State turn over
material, favorable evidence to defendant).
We review the trial court’s ruling on a confidential-informant motion for
abuse of discretion. Sanchez v. State, 98 S.W.3d 349, 356 (Tex. App.—Houston
[1st Dist.] 2003, pet. ref’d). We will disregard any error, however, unless it
affected the defendant’s substantial rights. TEX. R. APP. P. 44.2(b); Sanchez, 98
9
S.W.3d at 356–57 (stating trial court’s failure to order disclosure of confidential
informant’s identify is non-constitutional error governed by TEX. R. APP. P.
44.2(b)); see also Heard v. State, 995 S.W.2d 317, 321 (Tex. App.—Corpus
Christi 1999, pet. ref’d) (holding trial court’s failure to disclose confidential
informant’s identity must be analyzed under “substantial right test”). A substantial
right is affected when the error had a substantial and injurious effect or influence
on the judgment. Sanchez, 98 S.W.3d at 357.
The State has an affirmative duty to disclose exculpatory evidence that is
material either to guilt or punishment. Brady, 373 U.S. at 86, 83 S.Ct. at 1196.
The State’s duty to reveal Brady material attaches when the information comes
into its possession, not when it is requested. Thomas v. State, 841 S.W.2d 399, 407
(Tex. Crim. App. 1992). To establish a due process violation under Brady, a
defendant must show the following: (1) evidence was suppressed; (2) the
suppressed evidence was favorable to the defendant; and (3) the suppressed
evidence was material to either guilt or punishment. Fox v. State, 175 S.W.3d 475,
490 (Tex. App.—Texarkana 2005, pet. ref’d).
When the Brady material is discovered during trial, the initial inquiry is
whether the defendant was prejudiced by the delayed disclosure. Palmer v. State,
902 S.W.2d 561, 565 (Tex. App.—Houston [1st Dist.] 1995, no pet.); see also
Little v. State, 991 S.W.2d 864, 867 (Tex. Crim. App. 1999) (reasoning that to
10
prevail on a Brady claim, defendant must show that State’s tardy disclosure
prejudiced defendant). To show prejudice, the defendant must show a reasonable
probability that, had the evidence been disclosed to the defense earlier, the result of
the proceeding would have been different. Little, 991 S.W.2d at 866. The
disclosure of Brady material during trial satisfies the requirements of due process
“[i]f the defendant received the material in time to put it to effective use at trial.”
Palmer, 902 S.W.2d at 565. A defendant’s conviction should not be reversed
simply because the Brady material was not disclosed as early as it might have and
should have been. Id. When Brady material is disclosed at trial, the defendant’s
failure either to object to the admission of the evidence on this basis or to request a
continuance waives the error “or at least indicates that the delay in receiving the
evidence was not truly prejudicial.” See Apolinar v. State, 106 S.W.3d 407, 421
(Tex. App.—Houston [1st Dist.] 2003), aff’d on other grounds, 155 S.W.3d 184
(Tex. Crim. App. 2005) (holding that failure to request continuance waives
complaint that State withheld exculpatory evidence in violation of Brady); see also
Smith v. State, 314 S.W.3d 576, 586 (Tex. App.—Texarkana 2010, no pet.)
(holding Brady challenge not preserved because trial court never ruled on
complaint); Jones v. State, 234 S.W.3d 151, 158 (Tex. App.—San Antonio 2007,
no pet.) (holding that defendant must request continuance and present Brady
complaint in motion for new trial to preserve complaint for appellate review);
11
Young v. State, 183 S.W.3d 699, 706 (Tex. App.—Tyler 2005, pet. ref’d) (“The
failure to request [a continuance] waives any Brady violation, as well as any
violation of a discovery order.”).
Discussion
At the eleventh hour of trial, the State voluntarily disclosed the identity of its
informant. Indeed, the reporter’s record clearly reflects that the confidential
informant, whose real name is “Rene Garcia Salazar,” was present for at least two
days of the five-day trial. “Rene Garcia Salazar” was sworn in, in open court, on
the third day of trial. While Valles was testifying during the State’s rebuttal case
the next day, the State had this same man, “Rene Garcia Salazar,” walk into the
courtroom. Valles testified, “That’s the confidential informant, Rene Garcia.”
Appellant did not object to this line of questioning. Even if appellant’s
counsel did not realize who the confidential informant was the day before, after
Valles’ testimony there can be no doubt that everyone in the courtroom, including
appellant and his counsel, knew the identity of the confidential informant as well
as his location (i.e., just outside of the courtroom). Appellant had ample
opportunity to either call the confidential informant as a witness at trial, or, at the
very least, to request a continuance in order to meet with him to determine whether
he wanted to call the man to testify at trial. Appellant did neither. Instead,
appellant rested his case.
12
Because appellant neither objected to Garcia Salazar’s in-court identification
nor requested a continuance, his Brady complaint is waived. See Apolinar, 106
S.W.3d at 421; Smith, 314 S.W.3d at 586; Jones, 234 S.W.3d at 158; Young, 183
S.W.3d at 706.
Although we have not found any opinions expressly applying this rationale
to Rule 508 allegations, we conclude that the logic underlying this well-established
preservation issue is equally applicable to appellant’s Rule 508 argument. When
the State voluntarily discloses a confidential informant’s identity for the first time
at trial, as was the case here, the defendant must either object or request a
continuance in order to preserve a Rule 508 violation for appellate review.
Because appellant did neither, his Rule 508 allegation is also waived.
We overrule appellant’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
13