State v. Joseph Deshun Dunn ( 2020 )

Reversed and Remanded and Opinion filed November 17, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00701-CR
THE STATE OF TEXAS, Appellant
V.
JOSEPH DESHUN DUNN, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1614025
OPINION
Appellee Joseph Deshun Dunn was indicted for possession of more than 4
grams and less than 200 grams of a controlled substance, specifically cocaine.
Appellee filed a motion for disclosure of a confidential informant pursuant to Rule
508 of the Texas Rules of Evidence, which the trial court granted. See Tex. R.
Evid. 508. When the State refused to divulge the identity of the confidential
informant, the trial court granted appellee’s motion to dismiss the indictment
against appellee. Because we conclude the trial court abused its discretion when it
ordered the State to disclose the identity of the confidential informant and
subsequently dismissed the indictment when the State refused, we sustain the
State’s single issue on appeal and remand the case to the trial court for further
proceedings.
BACKGROUND
Appellee was wanted on an open arrest warrant for murder. A confidential
informant who worked for federal law enforcement personnel notified them that
appellee, who was not known to the confidential informant, wanted to sell “stuff”
to the confidential informant. Law enforcement personnel then learned there was
an active murder warrant on appellee and they “wanted him arrested on that”
warrant. The confidential informant arranged to buy drugs from appellee. The
confidential informant notified law enforcement personnel that appellee would be
at a certain gas station, possibly in a silver SUV. There is nothing in the record
indicating the confidential informant participated in the offense for which appellee
was charged or was present at the scene when appellee was arrested.
The police did not intend to buy drugs from appellee, they instead intended
to arrest appellee on the outstanding murder warrant. The police set-up
surveillance at the gas station. When the police spotted an SUV in the gas station
parking lot matching the SUV mentioned by the confidential informant,
undercover officers drove by in unmarked police vehicles. The undercover
officers got close enough to the SUV to identify the person sitting in the passenger
seat as appellee. Uniformed officers in marked police vehicles then moved in and
arrested appellant on the murder warrant. According to Officer John Pavlica, the
only witness who testified during the motion to disclose hearing, the police did not
attempt a controlled buy the night appellee was arrested. According to the State,
the police discovered cocaine during the search following appellee’s arrest on the
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murder warrant.1 Appellee was subsequently indicted for possessing more than 4
grams and less than 200 grams of cocaine. It is this charge, not the murder charge,
at issue in this appeal.
Appellee filed a motion pursuant to Rule 508 of the Texas Rules of Evidence
asking the trial court to order the State to disclose the identity of the confidential
informant. According to appellee, the identity of the confidential informant was
necessary for a fair determination of guilt or innocence and also because the
confidential informant possessed information relevant to the legality of appellee’s
arrest on the drug charge. Appellee did not challenge the legality of the murder
warrant in the trial court and he does not challenge it in this appeal.
The trial court conducted an evidentiary hearing in chambers on appellee’s
motion. During the hearing appellee did not introduce any evidence regarding a
connection between the drugs underlying the charge at issue in this appeal and his
arrest on a murder warrant. Indeed, the record is bare of any evidence regarding
how the police came to arrest appellee on the cocaine possession charge. Appellee
also did not introduce any evidence establishing that the confidential informant
was present at the scene when appellee was arrested. The trial court granted
appellee’s motion and denied the State’s motion to reconsider. The State refused
to identify the confidential informant and appellee moved the trial court to dismiss
the case pursuant to the same rule of evidence. The trial court granted the motion
and dismissed the case against appellee. This appeal followed.
ANALYSIS
The State raises a single issue on appeal arguing the trial court abused its
discretion when it granted appellee’s Rule 508 motion to force the State to disclose
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There is no evidence in the record substantiating the State’s claim.
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the identity of the confidential informant and subsequently granted appellee’s
motion to dismiss when the State refused.
I. Standard of review and applicable law
We review the trial court’s ruling on a motion to disclose the identity of a
confidential informant under Rule 508 for an abuse of discretion. Ford v. State,
179 S.W.3d 203, 210 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). The trial
court’s ruling will not be disturbed unless it falls outside the zone of reasonable
disagreement. Id.Generally, the State has a privilege to withhold the identity of any person
who provided information relating to, or assisting in, the investigation of a possible
crime. See Tex. R. Evid. 508(a); Ford, 179 S.W.3d at 210. 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 judge must give the
State an opportunity to show in camera facts relevant to determining whether the
informant can, in fact, supply such testimony. See Tex. R. Evid. 508(c)(2). The
two-part exception in subsection (c)(3) allows the court to order disclosure if
“information from an informer is relied upon to establish the legality of the means
by which evidence was obtained” and if “the court is not satisfied that the
information was received from an informer reasonably believed to be reliable or
credible.” See Tex. R. Evid. 508(c)(3). Unlike Rule 508(c)(2), Rule 508(c)(3)
does not authorize the trial court to dismiss an indictment. See id.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 court orders the identity of the
informant to be revealed, the informant’s potential testimony must be shown to
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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 Abdel–Sater v. State, 852 S.W.2d 671, 674 (Tex. App.—Houston [14th Dist.]
1993, pet. ref’d). 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.).
II. The trial court abused its discretion under Rule 508(c)(2) when it
ordered the State to disclose the confidential informant’s identity and
subsequently dismissed the case against appellee.
The State initially argues the trial court abused its discretion when it ordered
disclosure of the confidential informant’s identity and subsequently dismissed the
case against appellee because appellee failed to meet his burden under Rule
508(c)(2) to make a plausible showing of how the informant’s information may be
important to a fair determination of a material issue on appellee’s guilt or
innocence. See Abdel–Sater, 852 S.W.2d at 674. We agree with the State.
Officer Pavlica was the only witness who testified during the in-chambers
hearing. Officer Pavlica testified he had heard that a confidential informant “had
set up a buy, but no buy was ever done because the intention was not to do a buy.
It was to arrest [appellee] on the murder warrant.” Appellee did not ask Officer
Pavlica whether the confidential informant was present at the scene when the
police arrested appellee on the murder warrant. As a result, there is no evidence in
the record that the confidential informant was present at the scene when appellee
was arrested. Appellee did not question Officer Pavlica about when, where, and
how the police located the cocaine underlying the charge against appellee.
Appellee also failed to offer any evidence demonstrating that the confidential
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informant was a participant in the charged offense. Indeed, appellee failed to
introduce any evidence establishing any connection at all between the confidential
informant and the actual drug charge at issue here.
Before a trial court orders the identity of a confidential informant to be
revealed, the confidential informant’s potential testimony must be shown to
significantly aid the defendant—mere conjecture about possible relevance is
insufficient to meet this threshold burden. Bodin, 807 S.W.2d at 318. In other
words, the defendant must show the confidential informant can give testimony
necessary to a fair determination of the issues of guilt or innocence on the charged
offense. Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991). We
conclude appellee offered nothing more than conjecture and speculation that the
confidential informant might offer testimony relevant to a fair determination of
guilt or innocence. This is insufficient. Because appellee failed to meet his burden
under Rule 508(c)(2), we conclude the trial court abused its discretion when it
ordered the State to disclose the identity of the confidential informant and
subsequently dismissed the case when the State refused. See Ford, 179 S.W.3d at
210 (stating that when an informant’s information was used only to establish
probable cause for a search warrant or merely provided information causing 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); Southwell v. State, 80 S.W.3d 647, 650 (Tex. App.—Houston [1st
Dist.] 2002, no pet.) (“The informant merely provided information that indirectly
led to the warehouse being placed under surveillance. The trial court correctly
ruled that the informant’s identity did not need to be disclosed by the State.”).
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III. The trial court abused its discretion under Rule 508(c)(3) when it
ordered the State to disclose the confidential informant’s identity and
subsequently dismissed the case against appellee.
Rule 508(c)(3)(A) authorizes a trial court to order the State to disclose a
confidential informant’s identity if (1) the informant’s information is relied on to
establish the legality of the means by which the evidence was obtained, and (2) the
trial court is not satisfied that the informant was reasonably believed to be reliable
or credible. See Tex. R. Evid. 508(c)(3). We conclude the trial court abused its
discretion under Rule 508(c)(3) because appellee failed to meet his burden to show
the State relied on the confidential informant’s information to establish the legality
of the means by which the evidence underlying the drug charge was obtained. See
Bodin, 807 S.W.2d at 318. We reach this conclusion because appellee failed to
establish that the confidential informant had any connection with the drugs
underlying the charge at issue in this appeal. Appellee also failed to offer any
evidence demonstrating that the police did not reasonably believe the confidential
informant was reliable or credible. Thus, any determination by the trial court that
the State relied on the confidential informant to establish the legality of the means
by which the police obtained the evidence against appellee and that the
confidential informant was not considered reliable or credible was based on mere
speculation. See Bodin, 807 S.W.2d at 318 (“Evidence from any source, but not
mere conjecture or speculation, must be presented to make the required showing
that the informer’s identity must be disclosed.”). As a result, we conclude Rule
508(c)(3) is not applicable under the facts of this case and the trial court abused its
discretion to the extent it ordered disclosure pursuant to Rule 508(c)(3). See
Thompson v. State, 741 S.W.2d 229, 231 (Tex. App.—Fort Worth 1987, pet. ref’d)
(concluding Criminal Rule of Evidence 508(c)(3) did not apply to the case because
there was nothing in the record showing that the police did not believe the
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confidential informant to be reliable or credible).
We also conclude the trial court abused its discretion to the extent it
dismissed the indictment pursuant to Rule 508(c)(3) because this section of the rule
does not authorize a trial court to dismiss a case. Compare Tex. R. Evid. 508(c)(2)
with Tex. R. Evid. 508(c)(3).
CONCLUSION
Having concluded that the trial court abused its discretion when it granted
appellee’s Rule 508 motion, we sustain the State’s issue on appeal, reverse the trial
court’s order dismissing the case against appellee, and remand to the trial court for
further proceedings.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Christopher, Wise, and Zimmerer.
Publish — TEX. R. APP. P. 47.2(b).
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