## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S

NO. PD-0075-19

THE STATE OF TEX AS

v. REYNALDO LERMA, Appellee
O N APPELLEE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

HAYS COUNTY
K E L L E R 

### , P.J., filed a dissenting opinion in w h ich Y E A R Y 

### a nd M C 

### C L U R E 

### , J J 

### ., joined . O P I N I O N
I n this capital murder prosecution, the trial court o r dered the State to disclose the identity of

a confidential informant (CI ) f rom a previous drug buy

. The State did not disclose the identity , so the trial court dismissed the capital murder charg e. The Court holds that this was not an abuse of discretion, but I

disag ree. The State has a privileg e to refuse to disclose the identity of a CI , but the privileg e does notLERMA DISSENT - 2

apply in certain circumstances. Rule 508(c)(2)(A) provides:
I n a crimi n al c as e , this privileg e does not apply if the court finds a reasonable probability ex ists that the i n f ormer can g ive testimony necessary to a fair determination of g uilt or innocence. 1
I f the State refuses to disclose the identity , the trial court must, upon motion by the defense, dismiss the charg es to which the testimony would r elate. 2 Here, the State r efused to disclose the identity of

a CI , but, for four reasons, the trial court nevertheless erred in dismissing the capital murder charg e. F irst, the defensive theory appears to include an alleg ation that Espino, the murder victim in this case, was a CI in the prior d rug buy , and he was killed by his fellow d rug dealer, Alejandro, f

or that reason rather than because of any thing Appellant did. B ut E spino is dead

. Even if the defensive theory is c o r r e c t , E s pino cannot “g ive testimony ” about any thing

. The ex ception to the privileg e therefore does not apply if Espino was the CI , and the State would h a ve no oblig ation to disclose his identity to the defense. Second, the defensive theory seems to include a n alleg ation that there was another C I i n addition to E spino, who boug h t drug s from Espino and then revealed Espino’s duplicity to Alejandro.
I t seems unlikely that law enforcement would set up a buy b etween a CI buy er and a CI seller, but

even if that was what happened, the d rug buy er was not a CI in this capital murder c ase. I f a drug prosecution had resulted from the d rug buy the CI was involved in, and the defense h ad soug ht the identity of the CI in that c ase, there mig ht be a basis to require disclosure. B ut the current prosecution is for c apital murder, and there is n o alleg ation that a ny o n e was a CI in this case. I t seems to me that the ex ception in Rule 508 (“can g ive testimony necessary to a fair d ete r m i n a t i o n of g uilt or

1 Tex . R. Evid. 508(c)(2)(A).

2 R. 508(c)(2)(A)(I).LERMA DISSENT - 3

innocence”) contemplates a situation where the informer can g ive testimony about the case in which he w as a CI , and applies only when h is testimony could shed lig ht on that case. B ecause the CI whose identity w as soug ht was the CI in a drug case, there was no requir e m en t that the State disclose his identity in this capital murder case. Third, in order for the defensive theory to work, the d rug buy er and the drug seller (Espino) would both have to be CI s during the same drug buy , the buy e r CI would have to know A lejandro and would ha v e had to snitch to him about Espino being a CI , and Alejandro w ould have h ad to kill Espino for that reason a

n d use Appellant’s fortuitous attempted robbery of him and Espino as a cover for the murder. This theory is too speculative to support the tria l co urt’s order to disclose the CI ’s identity

. I t is true that a defendant need only make “a plausible showing of how the informer’s information may

be important.” 3 B ut “mere conjecture or speculation” is insufficient to satisfy the defendant’s burden. 4
There is no evidence in the record to support Appellant’s proposed connection between the CI d rug buy er and the capital murder. There is no evidence that the CI drug buy e r was present during the c apital murder, that he had ever interacted with any of the people involved besides the one-time controlled buy

from Espino three months prior to the capital murder, or that he had any connection with the alleg ed capital murder. 5 Appellant’s defensive t h e o r y is “ mere conjecture or supposition about possible relevancy

” and does not support the trial court’s order. 6

3 Bodin v. State , 807 S.W

. 2d 313, 318 (Tex . Crim. App. 1991).

4 Id.

5 Anderson v. State , 817 S.W .2d 69, 72 (Tex . Crim. App. 1991).

6 See Bodin , 807 S.W .2d at 318.LERMA DISSENT - 4

And fourth, if the State h as ex culpatory information about this c apital murder related to a CI , the State already has an oblig a tion to disclose it to the defense, w ithout resort to Rule 508(c)(2)(A): Notwithstanding a n y o t h er provision o f this article, the state shall disclose to the defendant any ex c ulpatory , impeachment, or mitig ating documen t , i tem, or information in the possession, custody , o r control o f the state that tends to neg ate the g uilt o f the defendant or w ould tend to reduce the p unishmen t for the offense charg ed. 7
I a g ree with th e court of appeals that the trial court abused its d iscretion in g ranting Appellant’s motion to dismiss. I respectfully dissent.
F iled: November 24, 2021 Publish

7 T E X
. C O D E C R I M
. P R O C

. art. 39.14(h), see also Brady v. Maryland , 373 U.S. 83 (1963).