Gonzales, Amalia v. State

NUMBER 13-99-308-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ AMALIA GONZALES , Appellant, v. THE STATE OF TEXAS , Appellee. ___________________________________________________________________ On appeal from the 36th District Court of Aransas County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Yañez, Rodriguez, and Kennedy(1) Opinion by Justice Kennedy Appellant was indicted for possession with intent to sell cocaine, more than one ounce but less that four ounces. She pleaded guilty and was assessed punishment at confinement for eight years in the institutional division of the Texas Department of Criminal Justice. In addition, she was assessed a fine of $500.00 and was ordered to pay restitution in the amount of $140.00 to the Department of Public Safety Lab. Before appellant's plea of guilty, the trial court held a hearing on appellant's motion to suppress the evidence seized by the Aransas County Sheriff's Office from appellant's residence. The evidence, cocaine, was seized as a result of a raid on appellant's residence pursuant to a search warrant issued by an Aransas County Magistrate. The search warrant was issued based upon the affidavit of an Aransas County sheriff's deputy, wherein he relied upon information furnished him by a confidential informant. Appellant's brief raises two issues. Issue No. 1 asks, "Did the Court err in failing to suppress the evidence obtained by virtue of false information provided to the Magistrate negligently and/or with reckless disregard for the truth?" A challenge such as this is governed by the rules stated in Bosquez v. State, 792 SW2d 550 (Tex. App. - El Paso 1990, pet. ref'd), which holds: The defendant must initially make a substantial showing of (1) such a false statement, (2) made by the affiant intentionally, knowingly or with reckless disregard for the truth, and (3) that such statement was necessary to the finding of probable cause. Upon such showing, the accused is entitled to a hearing at which inquiry may extend beyond the four corners of the affidavit. If at such hearing, the affiant's perjury or reckless disregard for the truth is established by the accused by a preponderance of the evidence, then the false material is to be disregarded and the remainder of the affidavit evaluated to determine whether or not it still establishes probable cause. Bosquez, 792 SW2d at 551. The thrust of appellant's argument in support of issue one is that the informant lied about seeing the cocaine at appellant's premises on the date he claimed to have seen it, which was within twenty-four hours of December 17, 1998. The information was provided by the informant on December 17, 1998 and the search warrant was signed on the same date. The warrant was executed on December 18, 1998. In rebuttal, the affiant testified that she was not at home on December 16th or 17th, having spent this time at the home of a friend. The friend supported affiant's testimony, but only to the extent that appellant spent the evening hours of these two days with her. She assumed that appellant was at work during the day. This court held in Lopez v. State 760 SW2d 770 (Tex. App. - Corpus Christi 1988, no pet.), "the trial judge, as the trier of fact and sole judge of the credibility of witnesses at the hearing, was entitled to believe that Swearinger's(2) testimony and disbelieved appellants. Lopez 760 SW(2d) at 774. Here, appellant did not prove to the satisfaction of the trial judge that the informant's statement to the investigating officer was false. We overrule issue number one. Issue Number 2 asks, "Did the court err in failing to grant the identification of the confidential informant, if any, to prove the false information, and to provide a material defense, i.e., the contraband was planted by the alleged confidential informant?" In her brief, appellant contends that the disclosure of the informant's identity is necessary in order to bring him into court to " establish that the affiant for the search warrant intentionally, knowingly, or with reckless disregard for the truth included the false statements therein." The merits of this issue are governed by Texas Rules of Criminal Evidence Rule 508, as follows (in pertinent part): (a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation. (b) . . . (c) Exceptions. (1). . . (2) Testimony on Merits. If it appears from the evidence in this case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or 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. The showing will ordinarily be in the form of affidavits, but the court may direct the testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. Appellant has offered no evidence to show herself entitled to the informant's presence in court. Under these circumstances, the informant's presence in court for examination would amount to nothing more than a fishing expedition. An accused is entitled to have the identity of an informer disclosed whenever it is shown that the informant was an eyewitness to the alleged offense, because the informer can give testimony necessary to a fair determination of the issue of guilt. Edmond v. State, 911 SW2d 487, 488 (Tex. App. - Texarkana 1995, no pet.). The trial judge heard evidence that only appellant and the officers were present when the warrant was executed. The trial court, as the trier of fact and sole judge of the credibility of witnesses at the hearing, was entitled to believe the officer's testimony and disbelieve appellants. We overrule appellant's second issue and AFFIRM the judgment of the trial court. Noah Kennedy Retired Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 25th day of May, 2000. 1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. §74.003 (Vernon 1988). 2. Swearinger was the officer who investigated the case and made the affidavit for the search warrant.