1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-15-00083-CR

____________________

THE STATE OF TEXAS, Appellant

V.

PHILLIP EDWARD NORWOOD, Appellee

___________________________________________________________________ 

On Appeal from the 9th District Court

Montgomery County, Texas

Trial Cause No. 10-01-00746 CR 

___________________________________________________________________ 

MEMORANDUM OPINION 

Phillip Edward Norwood was indicted for possession of a controlled 

substance with intent to deliver/manufacture. Pursuant to a motion for disclosure 

filed by Norwood, the trial court ordered the State to disclose the name of its 

confidential informant. The State disclosed the informant’s name but Norwood 

filed a second motion seeking information regarding the informant’s background.

The trial court granted the motion. When the State failed to provide this 

information, the trial court dismissed the indictment. In three appellate issues, the 
2

State challenges the dismissal of the indictment. We reverse the trial court’s order 

of dismissal and remand for further proceedings consistent with this opinion.

In issue three, the State contends that the trial court’s dismissal of the 

indictment against Norwood was improper because the informant’s background 

information is in the exclusive possession of the DEA and is not in the State’s 

possession, custody, or control. Article 39.14(a) of the Texas Code of Criminal 

Procedure requires the State to produce items of discovery that are “in the 

possession, custody, or control of the state or any person under contract with the 

state.” Tex. Code Crim. Proc. Ann. art. 39.14(a) (West Supp. 2014). Norwood 

concedes that the trial court’s order violates article 39.14(a) and should be 

reversed.

According to the record, in March 2014, the DEA provided the State with 

the informant’s name and the name of who to contact should further information be 

required. At the hearing on Norwood’s second motion, defense counsel informed 

the trial court that attempts to gain additional information from the DEA were 

unsuccessful. The trial court acknowledged that the DEA had delayed the case. At 

a subsequent hearing, the State represented that it had also attempted to contact the 

DEA for further information. At yet a third hearing, the State informed the trial 

court that the DEA had refused to disclose the informant’s background 
3

information. The trial court stated that fault for non-compliance with the order lay 

with the DEA, not the State, but dismissed the indictment.

The record demonstrates that the information sought by Norwood was 

possessed by the DEA, not the State. Article 39.14(a) only allows the trial court to 

order disclosure of evidence that is in the State’s possession. See Tex. Code Crim. 

Proc. Ann. art. 39.14(a); see also Valdez v. State, 116 S.W.3d 94, 100 (Tex. 

App.—Houston [14th Dist.] 2002, pet. ref’d) (“In discovery matters, the State’s 

attorney is answerable only for evidence in his direct possession or in the 

possession of law enforcement agencies.”). Because the trial court could not 

require the State to disclose evidence that was in the DEA’s possession, custody, or 

control, dismissal of the case was improper. We sustain issue three and need not 

address the State’s remaining issues. See Tex. R. App. P. 47.1. We reverse the 

trial court’s order dismissing the indictment against Norwood and remand the 

cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

 

______________________________

 STEVE McKEITHEN

 Chief Justice

Submitted on August 5, 2015

Opinion Delivered August 31, 2015

Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.