Gilberto Rodriguez v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-277-CR
GILBERTO RODRIGUEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Gilberto Rodriguez appeals his conviction for delivery of at least
four but less than two hundred grams of cocaine. We affirm.
After an undercover narcotics investigator and a confidential informant
entered a bar in south Fort Worth, Guadalupe Rodriguez approached them and
asked what they were looking for. The informant indicated that the officer
1
… See Tex. R. App. P. 47.4.
wanted to buy cocaine. The informant then left the bar, leaving the officer and
Guadalupe to discuss the purchase.
Guadalupe introduced the officer to Ernesto Garnica. The officer
explained to Ernesto that he was looking to buy a kilogram of cocaine to take
back with him to Chicago but that he wanted to purchase a small sample first.
After settling on a price, Ernesto stood up, walked over to Guadalupe,
whispered in his ear, and then made a phone call from the bar.
Sometime later, appellant entered the bar and handed Ernesto a clear
plastic baggie. Ernesto then motioned for the officer to follow him into the
restroom, and once inside, gave the baggie to the officer in exchange for three
hundred fifty dollars in cash. Upon returning to the bar, the officer observed
Ernesto walk over to appellant and hand him the money the officer had given
him. Appellant put the money into his pocket and remained at the bar until the
officer left.
Subsequent crime lab testing showed the baggie to contain 13.81 grams
of cocaine. Officers obtained a warrant and arrested appellant on a charge of
delivery of a controlled substance. On the eve of appellant’s trial, counsel for
the State and for the defense first learned of the existence of the confidential
informant.
2
In point one, appellant contends that the trial court abused its discretion
by overruling his motion for continuance based upon having learned of the
existence of the confidential informant on the eve of trial.
We review a trial court’s ruling on a motion for continuance for an abuse
of discretion.2 To establish an abuse of discretion, an appellant must show that
he was actually prejudiced by the motion’s denial. 3 A mere statement that
counsel did not have enough time to prepare an adequate defense does not
demonstrate prejudice.4
Appellant has not shown any specific prejudice arising from the trial
court’s refusal to delay trial. The confidential informant did not testify, and the
record shows that he or she left the bar before the officer was introduced to
Ernesto, the person with whom the officer negotiated the drug deal. Further,
it is undisputed that the informant was not present when appellant arrived at
the bar and transferred the drugs to Ernesto. The informant’s entire
involvement consisted of walking into the bar, sitting at a table, responding to
2
… See Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002);
Dotson v. State, 146 S.W.3d 285, 297 (Tex. App.—Fort Worth 2004, pet.
ref*d); Tex. Code Crim. Proc. Ann. art. 29.06(6) (Vernon 2006).
3
… See Vasquez, 67 S.W.3d at 240.
4
… Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996), cert.
denied, 522 U.S. 825, 118 S. Ct. 86 (1997); Dotson, 146 S.W.3d at 297.
3
a single question from Guadalupe, and leaving—all within the space of
approximately five minutes. Apart from this minimal level of involvement,
appellant has not shown that the informant could have presented evidence on
any material issue in the case or that any other actual prejudice was caused by
the trial court’s refusal to grant a continuance. 5 We overrule point one.
In points two, three, and four, appellant contends that the trial court erred
by conducting an open-court hearing, instead of an in-camera hearing,
concerning disclosure of the identity of the confidential informant, and by
refusing to order disclosure of the informant’s identity. To be entitled to an in-
camera hearing to determine whether a confidential informant may provide
information necessary to a fair determination of guilt or innocence, a party
seeking disclosure of the confidential informant bears the initial burden of
making a plausible showing that the informant could give such testimony.6
We have held that appellant has failed to show that the informant could
provide evidence on a material issue in the case. Therefore, appellant has not
5
… See Vasquez, 67 S.W.3d at 240.
6
… Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991);
Olivarez v. State, 171 S.W.3d 283, 293–94 (Tex. App.—Houston [14th Dist.]
2005, no pet.).
4
made a plausible showing that he was entitled to have the trial court conduct
an in-camera hearing.7 We overrule points two, three, and four.
In point five, appellant contends that the trial court abused its discretion
by admitting extraneous offense evidence that appellant forfeited his pre trial
bond.
Admissibility of evidence is a matter within the trial court’s discretion.8
As long as the trial court’s ruling admitting evidence was within the “zone of
reasonable disagreement,” there is no abuse of discretion and its ruling will be
upheld.9
Although appellant complains on appeal that the probative value of the
evidence was outweighed by its prejudicial effect, his objection at trial
preserved only a claim that the evidence was not relevant under Rule 404.10
Forfeiture of an accused’s bail bond has long been held to be evidence tending
7
… See Anderson, 817 S.W.2d at 72; Olivarez, 171 S.W.3d at 293–94.
8
… Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990).
9
… Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App.), cert.
denied, 519 U.S. 1043 (1996).
10
… See Martin v. State, 173 S.W.3d 463, 468 n.3 (Tex. Crim. App.
2005); Montgomery, 810 S.W.2d at 388 (op on reh’g); Tex. R. App. 33.1.
5
to show flight.11 The trial court did not abuse it discretion in admitting evidence
that appellant forfeited his bond. We overrule point five. The judgment is
affirmed.
PER CURIAM
PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 16, 2008
11
… See Cantrell v. State, 731 S.W.2d 84, 93 (Tex. Crim. App. 1987).
6