Wilder v. State , 560 S.W.2d 676 ( 1978 )

OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Presiding Judge.

The majority opinion on original submission is withdrawn and the following is substituted in lieu thereof. The appeal was taken from a conviction for robbery by assault with a firearm under the former Penal Code. Punishment was assessed by the jury at fifty (50) years’ imprisonment.

The appellant was jointly tried with co-defendant Robert Lewis Andrew, though represented by different counsel. In the opinion on Andrew’s motion for rehearing this court reversed Andrew’s conviction because the trial court committed reversible error in failing to require the prosecution to reveal the name of a confidential informer, a material witness. Andrew v. State, 558 S.W.2d 876 (Tex.Cr.App.1977).

On appeal the appellant Wilder raises the same contention as Andrew. While most of the facts relating to the informer being a material witness to the offense were developed by Andrew’s counsel, it is observed in perfecting his bill of exception appellant’s counsel determined from the witness that his answers to the questions propounded to Andrew’s counsel would be the same if the questions were repeated by appellant’s counsel. As in Andrew, and despite the fact that the trial court cut off the completion of the bill of exception, the informal bill is sufficient to show the informer was a material witness to the transaction and that his identity should be revealed. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973).

Appellant’s motion for rehearing is granted. The judgment of affirmance is set aside. The judgment is reversed and the cause remanded.

VOLLERS, J., not participating.