Frederick Cannady v. State ( 2004 )

Opinion issued May 20, 2004  

In The

Court of Appeals

For The

First District of Texas

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  NO. 01-03-00466-CR

NO. 01-03-00467-CR

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FREDERICK CANNADY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause Nos. 931497 & 931496

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MEMORANDUM OPINION

          A jury convicted appellant, Frederick Cannady, of delivery of cocaine weighing more than four grams and less than 200 grams and possession of cocaine weighing more than one gram and less than four grams. See Tex. Health & Safety Code Ann. §§ 481.112(d), 481.115(c) (Vernon 2003). After finding true appellant’s two enhancement paragraphs alleging prior convictions for possession of a controlled substance and criminal mischief, the jury assessed appellant’s punishment at 85 years in prison for delivery of cocaine and 25 years in prison for possession of cocaine. In appellant’s sole point of error in both appeals, we determine whether the trial court erred in failing to order the State to disclose the identity of a confidential informant. We affirm.

Background

          On the morning of November 23, 2002, Officer Abraham Vanderberry, an officer in the narcotics division of the Houston Police Department (HPD), met with a confidential informant while Officer Vanderberry was working undercover in an attempt to purchase cocaine. With other HPD officers monitoring their movement, Officer Vanderberry and the informant proceeded to another location in separate vehicles. At this location, the informant called Phillips, a friend of appellant, to set up a meeting place to complete the drug transaction.

          After the meeting was arranged, the informant drove Officer Vanderberry to a convenience store to meet with Phillips. Outside the convenience store, Phillips requested that Officer Vanderberry show him that he had the money to purchase cocaine, and Officer Vanderberry showed the money to him. The informant and Officer Vanderberry then followed Phillips to a gas station, where Phillips wanted to make the drug transaction. After Phillips drove away, Officer Vanderberry and the informant waited at the gas station for approximately 45 minutes.

          Upon Phillips’s return, Officer Vanderberry and the informant followed him in the informant’s vehicle to a park. When they got to the park, Officer Vanderberry approached Phillips’s vehicle, while the informant stayed in his vehicle. As Officer Vanderberry got to Phillips’s vehicle, he met appellant for the first time. Appellant was riding in the passenger’s seat of Phillips’s vehicle. Appellant asked to see Officer Vanderberry’s money, and Officer Vanderberry showed him the money. Phillips and appellant then drove out of the park to get the cocaine, and Officer Vanderberry rode with the informant back to the gas station because they felt it would be safer there.

          Phillips and appellant drove into the gas station after Officer Vanderberry and the informant had already arrived. Officer Vanderberry again exited the informant’s vehicle and left the informant sitting in the vehicle while he approached the driver’s side of Phillips’s vehicle. Phillips had driven, and appellant was still in the front passenger’s seat. Officer Vanderberry negotiated with Phillips and appellant for the sale of cocaine. Appellant then pulled two halves of a “cookie” of crack cocaine from the waistband of his pants and handed it to Phillips to give to Officer Vanderberry, so that he could taste it and check its purity.

          When Officer Vanderberry had the cocaine in his possession, he gave the predetermined bust signal, and the HPD officers who were on surveillance arrived in their vehicles and arrested appellant and Phillips. In addition to the cocaine that Officer Vanderberry had already obtained, a crack pipe containing some cocaine was also found in appellant’s pants pocket.Disclosure of Identity of Confidential Informant

          In appellant’s sole point of error in both appeals, he contends that the trial court erred by failing to order the State to disclose the identity of the confidential informant after appellant presented evidence that the informant’s testimony was essential to a fair determination of appellant’s guilt or innocence.

A.      Standard of Review         

          The defendant has the threshold burden to show that the informant’s identity must be disclosed. Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991). To carry this burden, the defendant must present evidence, which may be from any source, but which cannot be mere speculation or conjecture. Id. Because the defendant may not actually know the nature of the informant’s testimony, the defendant need make only a plausible showing of how the informant’s testimony may be important, i.e., of how that testimony could be necessary to a fair determination of guilt or innocence. Id.; Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991); see Tex. R. Evid. 508(c)(2). The defendant must also show that the informant’s potential testimony would significantly aid him. Bodin, 807 S.W.2d at 318. “Whenever it is shown that an informant was an eyewitness to an alleged offense[,] then certainly that informant can in fact give testimony necessary to a fair determination of the issues of guilt, innocence.” Anderson, 817 S.W.2d at 72; accord Lopez v. State, 824 S.W.2d 298, 300 (Tex. App.—Houston [1st Dist.] 1992, no pet.), abrogated on other grounds by Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).

          Once the defendant makes a plausible showing “that an informer may be able to give testimony necessary to a fair determination . . . on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity 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); Southwell v. State, 80 S.W.3d 647, 650 (Tex. App.—Houston [1st Dist.] 2002, no pet.). We review the trial court’s ruling on a confidential-informant motion for abuse of discretion. Southwell, 80 S.W.3d at 650.

B.      Facts  

          Appellant testified that the confidential informant was the first person to approach Phillips’s vehicle at the gas station prior to the drug transaction. According to appellant, the informant had a short conversation with Phillips and then walked away and talked to Officer Vanderberry. Appellant asserted that the informant then approached the driver’s side of Phillips’s vehicle with Officer Vanderberry and that Phillips pulled the cocaine out from under the console. Appellant testified that he was totally unaware that a drug transaction was taking place until Phillips pulled out the cocaine. As a result, appellant asserts that the informant’s identity should have been disclosed because his testimony would show that appellant was not involved in the delivery of the cocaine.

          After Officer Vanderberry testified that the informant had driven him to the location where the drug transaction was to occur and that the informant had stayed in his vehicle during the transaction, appellant moved to require the State to disclose the informant’s identity. The State claimed its privilege not to disclose because the informant was not present during the negotiations or the drug transfer. The trial court responded to appellant’s motion by agreeing to talk to the informant in camera “out of an abundance of caution.” The trial court subsequently contacted the informant and conducted an in camera interview with him by telephone. The informant indicated to the trial court that he did not see or hear any portion of the transaction at the gas station because he was at least 150 feet away and his view was obstructed by a building. As a result of appellant’s continued objections to the non-disclosure of the informant’s identity, the trial court also interviewed Officer Vanderberry at length to determine whether the informant’s testimony would be necessary.

C.      Application of Law to Facts 

          Appellant appears to argue that, because he made a plausible showing that the informant’s testimony was necessary, appellant was automatically entitled to have the informant’s identity disclosed. Appellant relies on Loving v. State, 882 S.W.2d 42 (Tex. App.—Houston [1st Dist.] 1994, no pet.), to support his argument. However, appellant’s showing that the informant’s testimony could be material to the determination of appellant’s guilt entitled appellant only to an in camera hearing; that showing did not require the trial court automatically to order disclosure of the informant’s identity. See Tex. R. Evid. 508(c)(2). In Loving, the trial court did not hold an in camera hearing to determine the materiality of the informant’s potential testimony. See id., 882 S.W.2d at 45-46. Here, the trial court interviewed both the informant and the participating officer in making its determination concerning the materiality of the informant’s potential testimony.

          The trial court did not abuse its discretion, based upon the evidence developed during in camera review, in determining that there was not a reasonable probability that the informant could provide testimony necessary to the determination of appellant’s guilt. Having made this determination, the trial court was not required to order that the informant’s identity be disclosed. See Tex. R. Evid. 508(c)(2). Accordingly, the trial court did not abuse its discretion in denying appellant’s motion.

            We overrule appellant’s sole point of error.

  Conclusion

          We affirm the judgments of the trial court.

      Tim Taft

                                                                         Justice

Panel consists of Justices Taft, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).