### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00194- CR

The State of Texas, App ellant

v. Reynaldo Lerm a, Appellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR-15 -05 98, H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

After the State of Texas failed to disclose the identity of a confide ntial informant, the trial court g rante d appellee Rey naldo L erma ’s motion to dismiss the capital murder char g es ag ainst him pursuant to Texas Rule of Evidence 508. See Tex. R. Evid. 508(c) (2)( A)(i) ; see also Tex. Penal Code § 19.03 (desc ribing offe nse of capital murder). The S tate appeals from that order. Be cause

we conclude that L erma failed to meet his burden of showing that a rea sonable probability exis ts that the informer could g ive testimony nece ssary to a fair deter minatio n o f h i s gu i l t or innocenc e, we will rever se the trial c ourt’s orde r and r emand this ca use to the trial cour

t for fur ther proc eeding s.

BACK GR OUND
L erma was indicted for capital murder in c onnection with the death of J oel Espino.
T h e S t ate’s theory of the case , as it emer g es from the rec ord befor e us, is that Espino and hi s
roommate Andre w Alejandr o wer e narc otics deale rs. L erma and sever al co-de fenda nts alleg edlyapproa ched the residenc e wher e Espino and Alejandr o lived and attempted to rob them. During the

attempted robber

y , Alejand ro s h ot and killed Espino and also shot and wounded two of L erma ’s co-de fenda

nts. Alejandr o was the only person who discharg ed a firea rm during the encounte r. The
State char g ed L erma and sever al co-de fenda nts with capital m u rd er and one co-de fenda nt with robber y . The rec ord indicates that the State has not char g ed Alejandr o in connec tion with this event. Be fore trial, the Def

ense lear ned that a confide ntial informant (CI ) working with the Hay s County Na rc o t i cs Task For ce (the Task For ce) made a controlled buy of marihuana from Espino a bout thr ee months prior to the shooting. The Def ense further lear

ned that Espino w as not char g ed afte r the buy and that the purcha sed drug s wer e order ed destroy ed. At a pretria l hear ing in Aug ust 2016, the Def

ense informed the trial court, “We believe [Espi no] was acting as a CI and we would like to have a

ny information that per

tains to that.” The f

ollowing e x chang e then oc curr ed:

Prosecutor: I don’t think we can be require d to cond uct—or to provide them with discovery that is basica lly just a fishing expedition to see whether or not there might be something there

. Def ense: J udg e, if he was snitching on his roommate and the roommate shot him in the hea d, I think that is relevant. The Court: I do, too.

*** The Court: I will just put a g ag order on the defe nse, but he’s g oing to have to g et to see any thing that’s been g ener ated, any debrie fing , an y t h i n g like that the defe nse team g ets to look at it because they —they would know what mig ht be exculpatory

. I would not.

2At another pretria l hear ing in Ma

y 2017, the Def

ense pr oposed that Aleja

ndro may have intentionally shot and killed his roommate, Espino, beca use he had found out that Espino was working as a CI . The following exchang e occ urre d:
The Court: Sounds like it could be exculpatory . What say s the state?
Prosecutor: I t’s pure spe culation, Your H onor. The Court: I t is. But y ou have to look at it or I have to look at it to make sure that it is speculation.

The prosec u t o r t h en i n formed the court that “Espino was never develope d as a confide ntial informant” and that there was “n o fu rt h er investiga tion of Espino.” The prosec utor arg ued that “wha t [defense] counsel is specula ting is that they [t he Task For ce] are ly ing to me .” After further discussion, the following e x chang e occ urre d:

The Court: Affida

vits, or something of that nature , may do, but afte r what happene d in Wil liamson County a couple y ear s back, I am not g oing to b e an y wher e near any thing c lose to that. I

don’t g ive a da mn about a conf idential informant. Sorry

. Prosecutor: The law—the law

— The Court: The truth shall set y ou fre e and I ’m g oing to or der it all be— Prosecutor: The law make s that privileg e[d] , Your Honor

. T h e Co u r t: We ll , it ma

y b e p r iv il e g e d , b u

t I d o n ’ t— p r iv il e g e d b e d a

mn [e d ] if it me a

n s that the def

ense la wy er c an’t g et exculpatory evidenc e in a c apital murder case .

Nea r the conc lusion of the hear ing, the trial court told the Def ense, “Prepa

re whateve r order y ou need. Y ou are g oing to g et to look at it.”

3At a hear ing in J une 2017, the trial court clar ified that it was finding that the CI could

g ive testimony nece ssary to a fair deter mination of g uilt or innocenc e. The prosec utor stated, “Note

o u r exception, please , Your Honor.” The trial court responded, “Ex cept all y ou want, C ounsel o r. You know whe re the appellate court is.”

The trial c ourt signe d an order requiring the S tate to allow t he Defense to view the entire case file, including the CI file. The State filed a petition for writ of mandamus in this Court,
arg uing that the trial court was violating Rule 508 by order ing the State to produce this information without providing the State an in c amer a hear ing. See Tex. R. Evid. 508(c) (2)( C)(i) (“I f it appea rs that an informer may be able to g ive the testimony require d to invoke this exception and the public entity claims the privi leg e, the court must g ive t he publi c entity an opportunity to show in camer a fac ts rele vant to deter

mining whether this exception is met.”). This Court denied the petition. The
State then filed a petition for writ of mandamus in the Texas Court of Criminal Appea ls. Howeve r, th e parties and the trial court rea ched an ag ree ment that the State would withdraw its mandamus petition and the trial cour t would hold an in camer a hea ring as the State re quested.
T h e S t ate withdrew its petition, and the trial court held the in came ra hear i n g i n J u l y 2017. At the hear ing, the prosec utor explained that he was orig inally under the imp re s s i o n that the Task For ce would b e ab l e to identify the CI but that he had subsequently lear ned that the Task Force did not know t he C I ’s i dentity beca use t hey had failed to document it

. T h e fo l l o wi ng exchang e then oc curr ed:

The Court: You believe this man? You believe this is t ru e? Yo u believe they are telling y ou the truth or ar e they bullshit ting y ou?

4Prosecutor: I believe the y

are telling me the truth. The Court: L oad of shit, for the rec ord, that’s wha t it sounds l ike.
Prosecutor: I told them the judge is g oing to want to talk to y ou about this. You are g oing to ha

ve to under stand this sounds li ke— The Court: Sounds horrible.

The trial c ourt later c ommented, “So difficult to believe , Wesley

. I am sorry . Sounds li ke a total 1

croc k.” The court eventua lly ag ree d to h ea r t estimony from members of the Task For ce, stating the following :

I will listen to y our office r’s fairy tale. I am g oing to tell y ou rig ht now, I am g oing to stay with my ruling and whateve r y ou g ot needs to be shown to the Erwins, 2 meaning their lawy ers, not the client, and if y ou deter mine that it is exculpatory , y ou show me what y ou g ot and we will discuss it at that point. But y ou need to know ever y thing that these office rs do know. I t sounds like it i s not much.

Be fore the testimony beg an, the following exchang e occur red co n cerning the Task F orce ’s cr edibility :

The Court: Their cre dibilit y is a littl e bit suspect h er e. I am g oing to make that ruling . I am g oing to sa

y that rig ht on the rec ord.
Prosecutor: I understand that if the—if the theory is g oing to be we can put whateve r words in narc otics’ mouth and use that to justify whateve r ruling we are g oing to ask the court to make, beca

use whateve r denials they make, we are not g oing to believe— The Court: Going to ge t called a nd g rilled in front of the f act f inder.

That is, Wesley H. Mau, the Hay s C o u n t y Criminal District Attorney , who repr esente d 1 the State. L erma was re prese nted by

the Erwin L aw F irm, L L P. 2
5Prosecutor: Any specula tion that the defe nse counsel wants to eng ag e i n, they can

support that by simply say ing that that’s been d en i ed from any witness that—who might know about it beca use we don’t t ru s t t h e wi tness. That’s not the standard. You ca n’t offe r evide nce.

*** The Court: This is a capital murde r ca se whe re the y did a control[led] buy

and it is all missing. And they didn’t follow the rules and now they are telling us they don’t know who the infor

mant is. Prosecutor: Rig ht.
T h e Co u r t: I h a v e g o t to te ll y o u th a

t my b u ll s h it me te r is p e g g in g o u t r ig h t a b o u t n o w .

Be fore hear ing te stimony , the trial cour t also made the f

ollowing c omments:

After the Michae l Morton Act, I can’ t imagine any body is going to stop them from calling any

body they want to a

nd g oing down any bunny trail in the world that they want to.

*** This stinks to high heave n and the fac t finder considering capital murder s h o u ld know how bad it stinks.

The trial court then hear d te s ti mo ny f r o m D e te c ti v e T e d d

y G r a b a r k e w it z, who worke d for the H ay s County Sheriff’ s Offic e and the Task For ce. Detec tive Gra barke witz testified that he

was prese nt during the controlled buy from Espino and that he saw the CI

. He further testified that the Task For ce was “not sure who the informant was beca use it was two y ear s ag o and we failed to document a CI

—con fidential informant on the individual.” Detec tive Gra barke witz testified that he reme mbere d that the CI was male but could not rec all his rac e or ethnicity

. He also admitted to the court that the Task For ce failed to doc ument the CI as require d by Task For ce rules and that he

6was repr imanded by rec eiving “a verba l counsel by Serg eant Wade Parham.” I n addition, Detec tive

Gra barke witz testified that no char g es wer e filed ag ainst Espino afte r the controlled buy

. He further stated that he had a copy of a motion to destroy the marihuana used in the buy

. He explained, “We

w il l p u t in a

u to ma ti c a ll y to d e s tr o y th e e v id e n c e o n q u a li f y in g in f o r ma n t b u y s . We d o n ’ t k e e p th o s e . ” After lear

ning that Detec tive Gra

barke witz did not “know any thin g ab o u t the fac ts of this capital murder,” the trial court prese nted “a thumbnail view” o f t h e case and of the Def ense’ s conce rns reg arding the CI

. The trial court explained the theory that Espino’s roommate “g ot information about y our controlled buy and feare d that Espino was going to turn on him” and “used this fra cas [t he attempted robber y ] as an opportunity

to ge t rid of him so that it would never happen.” The following exchang e occ urre d:

The Court: Do y ou think there is any

— I m ean, y ou are a narc otics office r here for many y ear s. Do y ou think that is very plausible?
Detec tive Gra

barke witz: Well, we never used Espino as an informant. Somebody boug ht from Espino. The Court: See, he wouldn’t know that. All he’d n ee d t o k n ow is that he made a controlled buy

from the na

rcs. Detec tive Gra

barke witz: I s it possible that s o m eb o d y found out that we did a controlled buy ? The Court: Unle ss the informant, if he knew J oel [Espi no], chanc es are pretty g ood he could ha

ve known the two r oommates and he might have told him.
Detec tive Gra

barke witz: Any

thing is possible, sir.

***

7Detec tive Gra barke witz: So—y es, sir. And so any thing is possible. I mean, I don’t know for sure one way or the other, but any thing is possible, sir. Any

thing is possible.

*** The Court: Well, any

thing else y ou think would—what—my duty is to make sure if there is any

evidenc e out t here

. . . any of y ou that could indicate tha t Mr. L erma is n o t the g uilty party here , he may have been a dupe. Do y ou know any thing t h at would—any

thing that mig ht be evidenc e of tha t?
Detec tive Gra

barke witz: No, sir, I

don’t.

The trial court next hear d testimony from Serg eant Wade Parham, who commanded the Task For ce. Serg eant Parham admitted that the Task For ce did not follow their rules requiring the documenting of the CI and that a dete ctive re ceive d a verba l r eprimand beca use of this fa ilure. Serg eant Parham also testified that the Task For ce told the District Attorney that they did not know the CI ’s identity “[s] hortly afte r we rec eived subpoena on the hear ing, I believe I

— I am wanting to say the hea ring ear lier this y ear ” and tha t this occurre d “[m] any months ag o.” The trial court then questioned Serg eant Parham about an aff idavit enter ed into evidenc e in which Serg eant Parham stated, “As an appropr iate repr esentat i v e o f the [Task For ce] and the San Marc os Police Depa rtment, the pu b l i c entity to which the informer furnished the information, I claim the pri v i l ege aff orded by Texas Rules of Evidence , Rule 508, to ref use to disclose the person’ s identity .” The court asked him how he could “asse rt a privileg e if y ou don’t 3

I n the affidavit, which bears a differ ent cause num ber and was appare ntly filed i n a case 3 involving one of

L erma ’s co- defe ndants, Serg eant Par ham also ave rre d the following : The opera

tion was for intelligenc e g ather i n g p u rp oses only and Espino was never arr ested or char g ed with the offe nse. Espino was never intervi ewe d, debrie fed or develope d as a confide ntial i n fo rm an t by [t he Task For ce]. I n acc ordanc e with 8know who the informant is.” Serg eant Parham responde d, “At this time, Your Honor, I don’t rec all

if Iwas a war e that we didn’t actua lly have a n informant file on this per son at that time.” The following ex chang e then occur red when the trial court questioned Serg eant Par

ham about the theor

y that Alejandr o may

have intentionally

killed Espino:

The Court: W el l , t he defe nse team in this case are conce rned that somebody may have informed the roommate who shot Mr. Espi n o . . . twice, once in the head and once in the hip. Did—and did shoot two other people too, but not fata lly

. Somebody may have told him about this c ontrolled buy and he ma y have been very suspicious and p ar an o i d about his roommate and may have used this particula r aff ray as an opportunity to dispose of the problem. Do y ou see how that would be exculpatory ? Serg eant Par

ham: Yes, Your

Honor. The Court: And we can’ t tel l b ec ause we don’t know who the informant is. But Detec tive Gra

barke witz indicated that the informant knew Espino, named him, and went to the trailer on his own information he had. And since Espino was roommates with the shooter and one other person, he co u l d we l l h ave known them too and could have at some point told him about this controlled buy and that could have been the motive for this roommate to shoot Mr. Espino. Serg eant Par

ham: Yes. The Court: That’s very troubling. And y ou can understand that y our office r’s failure to follow the rules has neg ated the possibili ty of finding exculpatory evidenc e and it may require dismiss al o f t h e ca se. I don’t know. We are g oing to look at t he case law on it and see what has to ha ppen. This is very

serious.
Serg eant Parham then testified, “Well, we have scoure d all rec ords that we have

. . . . We have g one bac k looking a t—throug h our rec ords months pre viously to a ttempt to find it . And

depar tmental policy reg arding the dispositi on and rete ntion of no n -evidentiary proper ty or contra

band, the marij u an a purcha sed from Espino in Marc h 2015 was destroy ed. I n the months to follow, no [Task F orce ] off icer s conducte d any

further investiga tion of Espino or surveillance of his residenc e . . . . 9that, and phone rec ords of the detec t i v es, we have come up with nothing, Your Honor.” He also

testified that he was “ce rtain” that “the confide ntial informant that was used was not one of the defe ndants in the capital murder.” Serg eant Parham further testified, “And Joel Espino, afte r t hat

one informant did the controlled buy from him, that informant broke contac t with us. Neve r called

us back. Neve r returne d phone calls. And we perf ormed no further investiga tion on Espino.” The
court then stated, “Tha t doesn’t mean that his roommate might not have fea red that

. . . justifiably .” Serg eant Par

ham re sponded, “That’s rig ht.” The final witness from which the trial court hear d test i m o n y wa s Offic er L enny Martinez. Offic er Martinez testified that Espino was shot in the head and the hip by his roommate. Offic er Martinez further testified that he was prese nt during the controlled buy from Espino but that he did not know the CI ’s identity

. He testified that the CI was a “white male,” “fa irly thin,” and was “a littl e taller” than Offic er Martinez, who was “five -eig ht.” Offic er Martinez also admitted that the Task For ce had failed to follow its rules conce rning documenting the CI

. When asked when he first told t h e Di s t ri ct Attorney that he did not know the identity of the CI , Offic er Martinez answe red,
“He re r ece ntly

when the subpoe na ca

me out to appea

r at this hear ing.” After ag ain explaining the theory that Alejandr o killed Espino afte r l ear ning of the controlled buy , the court as k ed , “So, see, I mean, that c ould be evidence of innocenc e at least to the murder ? ” Of fice r Mar tinez responded,
“Ye s, sir.” The f

ollowing e x chang e then oc curr ed:
The Court: Do y ou know of a ny evidenc e about a

ny of that throug h y our work a s a narc otics office r that mig ht substantiate or mig ht be evidenc e of tha t? Offi ce r Martinez: No, sir, I don’t. I know Mr. Espino wasn’t char g ed with any drug -re lated off

enses dur ing my

—
10The Court: Which is unusual, isn’t it? Why would y ou make a controlled buy from

somebody

and neve r follow up on it? Offic er Martinez: And that’s what I think was may be g oing to happen, was that there was g oing to be some additional follow-up investiga tion taking place involving Mr. Espino, but I wasn’t in narc otics very much longe r. I was in narc otics approximately ten months befor e I ended up leaving the division and returning to the major crimes division wit h the—

*** Offic er Martinez: And as far as I know, Mr. Espino wasn’t considere d or even wasn’t under any contra ct say ing that Mr. Espino was a criminal informant for the task forc e.

After hear ing testimony , the trial court stated, “The act u al s h o oter who may have had a motive. And we can’ t

. . . we can’t investiga t e t hat because the task forc e didn’t follow the rules

. . . . I think that is all exculpatory .” The court later decla red, “Well, I d o fi n d there is—a

rea sonable proba

bility exis ts that the informant could g ive testimony if we kne w who he w as.”
I n November 2017, the Def ense filed a motion to dismiss pursuant to Rule 508, and the trial court held a hear ing on the motion on Dec ember 4. At the hear ing, the trial court reiter ated its finding : “I t’s very

—what I

— my actua l finding is and my belief is that it’s very possible that if they had disclosed the name of this informant, he or she might have been able to—might have had

acc ess to e x culpatory evidenc e that y ou would be entitled to. And y ou’re being denied it by either their incompetenc e or their

. . . for whateve r rea son.” On Dec ember 14, th e S t at e provided an email to the Def

ense. The email was dated Aug ust 19, 2 0 1 6 , an d wa s addressed from “Serg eant Wade Parham” to “Wes Mau.” I n the email, Serg eant Parham states, “My repor t on the homicide, filed two wee ks afte r the shooting, clea rly stated that Espino was on ce a s u s p ec t and targ et of an investiga tion

. T h e investiga tion was suspended and Espino was never arr ested or char g ed with a
11drug offe nse. Espino was never an informant.” The email continued, “And just in case he asks, I ’m

not g oing to reve al which informant made the purcha se from Espino

. . . . I t wasn’t any one involved in the homicide.” On the following day , Dec ember 15, the Def ense filed an amende d motion to dismiss pursuant to Rule 508.

I n Marc h 2018, the trial court signe d an o rd er g ranting L erma ’s motion to dismiss pursuant to Rule 508. The court subsequently issued finding s of fac t and conclusions of law, which included, among other thing s, the following :

• J oel Espino, the dece ased, was s h o t m u l tiple times by a single , unchar g ed actor , Andre w Alejandr o. Mr. Espino and Mr. [Alejandro] lived toge ther and sold narcotics f

rom the loca tion where the cha rg ed off enses oc curr ed.

• On Aug ust 19, 2016, Wade Parham, Commander of the [Task For ce] emailed the District Attorney and acknow ledg ed that he knew the identity

of the CI , but would not disclose the identity to the defe nse. This email communication was not pr ovided to the Court and to the Def ense until Dec ember

14, 2017, afte r the in ca

mera hear ing he ld by

this Court.

• This Court held an in came ra hear ing on J uly 27, 2017, and afte r interviewing two members of the [ Task Force ] and the Commander of the [ Task Force ], made the deter

mination under TRE 508 that a re asonable probability exis ts that the confide ntial informer could g ive testimony to a fair deter mination of g uilt or innocence in cause number CR-15-0598.

• Teddy Gra

barke witz testified t hat i t was very possible that the C I knew the dece ased’ s roommates as well, including Andre w Alejandr o, the only person who fired shots the evening of the alleg ed offe nse, and who shot the dece ased multipl e times.

• Teddy Gra

barke witz further testified that the CI could have informed A n d r ew Alej an d ro , the dece ased’ s roommate, of the controlled buy that occur red betwee n the dec ease d and the CI

.

• Wade Parham testified t h at he understood how the identity of the CI could potentially

be exculpatory

in Mr. L erma ’s ca se.
12• L enny Martinez testified that the ident i t y of the informant could provide evidenc e proving that Mr. L erma was innoce nt of murder

.

• Ul timately , all members of the [Task For ce] testified during the in came ra h ea ri n g that they do not know the identity of the CI ; the Court finds this testimony to lack cre dibilit y , and to be incon sistent with other testimony and exhibi ts in the case . After the State claimed the CI privileg e and soug ht extraordinary relief up to The Court of Criminal Appea ls to protec t the identity of the CI (known only to the state), the State now claims they do not know t he identit y of t he C I

. The S tate’s inconsistent position of protecting a p ri v i leg ed CI , and then claiming to not know the identity of the CI casts doubt on the reliability

and cr edibility

of the States’ w itnesses.

• The fac t that Commander Parham states in this email corr espondenc e that the CI is not any one involved in the murder, indicates that he must have revie wed some file or some information before s en d i n g the email to the District Attorney , as Mr. L erma ’s case is not one of Commander Parham’s case s, and not a ca se that he ha d familiarity with at the date of

the email.

• The Court h as taken into consideration when analy zing this email, the fac t that the State exhausted eve ry leg al reme dy possible to preve nt the Def ense f r o m k n o w in g th e id e n ti ty o f th e CI , c o mb in e d w it h th e f a c t th a t th e te s ti mo ny of all the [Task For ce] Offic ers lacke d cre dibilit y . Fur ther, comm o n s ense d i ct at es that if it truly wer e the case that the identity of the informant was unknown, that Commander Pa rh am would have simply disclosed this information Aug ust 19, 2016.
This appea l followed.

AP P LICABLE LAW AND STANDARD OF REVIEW Under Rule 508, the State and its subdivisions have a “privileg e to ref use to disclose

a person’ s identity ” if “the person has furnished information to a law enfor ceme nt office r” and “the information rela tes to or assists in the investiga tion.” Tex. R. Evid. 508(a) ; see Boyd v. State , No. 04-17-00193- CR, 2018 WL 3129463, at *7 (Tex. App.—San Antonio J une 27, 2018, no pet.) (mem. op., not desig nated for publication); Davis v. State , No. 03-13-00456- CR, 2014 WL 5107129,

13at *4 (Tex. App.—Austin Oct. 8, 2014, no pet.) (mem. op., not desig nated for publ ication). “The

privileg e may be claimed by an appropr iate repr esenta tive of the public entity to which the informer furnished the information.” Tex. R. Evid. 508(b). “[T] his privileg e does not apply if the court finds

a rea sonable probability exis ts that the informer can g ive testimony nece ssary to a fair deter mination of g uilt or innocenc e.” Id. R. 508(c) (2)( A). “I f the court so finds and the public entity elec ts not to disclose t he informer’s identit y . . . on the defendant’s moti on, the court must dism iss the char g es
to w h ic h th e te s ti mo n y w o u ld r e la te

. . . . ” I d

. R. 5 0 8 ( c ) ( 2 ) ( A ) ( i)

. B e f

o r e d is mi s s in g th e c a s e , h o w e v e r , “the court must g ive the public entity an opportunity to show in came ra fac ts rele vant to deter mining whether this ex ception is met.” Id. R. 508(c)( 2)(C)( i). “The defe ndant has the threshold burden of demonstrating th at identity must be disclosed.” Bodin v. Sta t e , 8 0 7 S.W .2d 313, 318 (Tex. Crim. App. 1991); see Boyd , 2018 WL 3129463, at *7 (“I n seeking disclosure of an informant’s identity under that exception, the defe ndant bear s the t hreshold burden of establishi ng a reasonable probabil i t y t h at the i nformant’ s testimony

w o u ld b e n e c e s s a

r y to a f a ir d e te r mi n a ti o n o f g u il t o r in n o c e n c e . ” ) ; a c c o r

d D a v is , 2 0 1 4 WL 5 1 0 7 1 2 9 ,

a t * 4 ( c it in g S

a n c h e z v
. S ta te , 9 8 S. W. 3 d 3 4 9 , 3 5 5 ( T e x. A p p . — H o u s to n [1 s t D is t. ] 2 0 0 3 , p e t. r e f ’ d ) )

. “Since the defe ndant may not actua lly know the nature of the informer ’s testimony , howeve r, he or she should only be require d to make a plausible showing of how the informer ’s information may be important.” Bodin , 807 S.W .2d at 318; see Haggerty v. State , 429 S.W .3d 1, 8 (Tex. App.—Houston [14t h Dist.] 2013, pet. ref ’d) (“A ppellant must make a plausible showing of how the info rm ant’s information may be important.”). Ne verthe less, “mer e conje cture or spec ulation” is not sufficient
to satisfy the def endant’ s burden to show “ that the informer ’s identity must be disclosed.” Bodin ,

14807 S.W .2d at 318; see Boyd , 2018 WL 3129463, at *7 (“To meet this burde n, the defe ndant must

show the informant’s testimony would signific antly aid his defe nse; mere conjec ture or specula tion is insufficient, as is mere ly filing a motion for disclosure.” ); Haggerty , 429 S.W .3d at 8 (“B efor e a court orders the identity of t he informant to be revea led, the informant’s potential testimony must be shown to signific antly aid the defe ndant; mere conjec ture about possible rele vance is insufficient
to meet the threshold burden.” ). We revie w the trial court’s ruling on L erma ’s motion to dismiss for

an abuse of discretion. See Boyd , 2018 WL 3129463, at *7; Davis , 2014 WL 5107129, at *5; State

v
. S o te lo , 1 6 4 S. W. 3 d 7 5 9 , 7 6 3 ( T e x. A p p . — Co r p u s Ch r is ti 2 0 0 5 , n o p e t. ) ; S

a n c h e z , 9 8 S. W. 3 d a

t 3 5 6

.

DISCUSSIO N
I n its sole appellate issue, the State contends that the trial court abused its discretion in g ranting L erma ’s motion to dismiss pursuant to Rule 508 beca use: (1) L erma offe red no evidenc e
to establish that a rea sonable probability exis ts that the informer could g ive testimony nece ssary to

a fair deter

mination of his g uilt or innocenc e; (2) t h e ev i d en ce that the trial court rec eived at the in came ra hearing shows only that the C I purcha sed m arihua na from the deceased sever al m onths

ear lier but demonstrates no other link betwee n the controlled buy and the capital murder; and (3) the evidenc e does not show “an ‘ele ction’ by police to withhold disclosure” but rathe r that “the informant’s identity [wa]s no longe r known at the time of the Rule 508 hear ing.” Be cause they are dispositi ve, we will address the State’ s first two arg uments.

Even if we defe r to the trial court’s finding that the Task For ce office rs who testified
at t h e hear ing wer e untruthful, we cannot conclude , based on the rec ord befor e us, that L erma
met his initial burden of showing that a reason ab l e p ro b abil ity exis ts that the i nformer could give

15testimony nece ssary to a fair deter mination of his g uilt or innocenc e. The rec ord befor e us indicates that the office rs mere ly aff irmed that the hy

pothetical the tria l court propose d, in which Alejandr o intentiona ll y k il le d Espino, was “possible.” The office rs did not testify that the hy pothetical situation

was very likely , more likely than not, or even rea sonably probable

. Nor d i d t h ey t es t i fy that they believed the hy

pothetical theor

y to be true or

that they had any rea son to believe that it was true

. For exa m p le, when the trial court asked Detec tive Gra barke witz whether it was possible “that somebody found out that we did a controlled buy ,” the det ec tive responde d that “any thing is possible.” When the cour t t h en as k ed whether he knew “any thing that might be

ev i d ence of that,” Detec tive Gra barke witz answe red, “No, sir, I don’t.” Simi larly , when the trial
court asked Commander Parham whether he saw how the court’s hy pothetical could be exculpatory , he responde d, “Ye s, Your Honor.” Howeve r, he went on to emphasize that the CI was not involved in the alleg ed capital murder, that the CI had no fu rt h er contac t with the Task For ce afte r the controlled buy from Espino, and that Espino never beca me an informer for the Task For ce. Finally , althoug h Offic er Martinez aff irmed t hat the hy

pothetical situation could be e x culpatory , when the
court asked him whether he knew “of any evidenc e about any of that

. . . that might substantiate or might be evidenc e of that,” Offic er Mar t i nez answe red, “No, sir, I don’t.” There fore , no witness testified that he was awa

re of any evidenc e to support the theory that Alejandr o intentionally killed Espino, a nd two of the witnesses explicitl y denied be ing a

war e of a ny such evide nce. I

n addition, the rec ord befor e us does not contain any additional ev i dence supporting the hy pothetical link betwee n the CI and the capital murder. T h er e i s n o evidence that the CI was prese nt during the alleg ed attempted r obbery or shooting, that he had e ver ha d any interac tion with any

of the pe ople

16involved other than t h e one controlled buy from Espino, or that he was connec ted to the alleg ed

capital murde r in any

way . L erma bore the burden of prese nting evidenc e that there was a rea sonable probability that the CI could gi ve testimony nece ssary to a fair deter mination of his g uilt or innocenc e. We conclude that the rec ord is devoid of s u ch ev i d en ce . Although the Def ense and the trial court
constructe d a hy

pothetical situat i o n i n wh ich Alejandr o intentionally killed Espino, neither the Def ense nor the State prese nted any evidenc e that the hy pothetical situation was actua lly true—the office rs mere ly aff

irmed that it was possible. Thus, th e al leg edly exculpatory theory is “mer e 4 conjec ture or supposition about pos s i b l e re levanc y ” and does not support the trial court’s order

. See B odin , 807 S.W .2d at 318.

Be cause the record before us contains no evidenc e indicating the mater iality of the
CI ’s identity , we conclude that the trial court abused its discretion in g ranting L erma ’s motion to dismiss

. See Tex. R. Evid. 508(c) (2)( A) (re quiring court to find that “a rea sonable probability exis ts that the informer can g ive testimony nece ssary to a fair deter mination of g uilt or innocenc e” befor e dismiss ing case under Rule 508); Sotelo , 164 S

. W

. 3 d at 762–63 (re versing the trial court’s order dismiss ing the case s ag ainst the defe ndant beca use “the evidenc e does not show that the informant

M o reover, it appea

rs from the rec ord befor e us that the trial court mere ly assumed that 4 evidenc e indicating that Alejandr o killed Espino inte n t i o n al l y rathe r than acc identally would be e xc u lp a to r y . N e it h e r th e tr ia l c o u r t, n o r th e D e f

e n s e , n o r a

ny w it n e s s e v e r e xp la in e d h o w A le ja n d r o ’ s intent could aff

ect the State’s ability to pr ove the elements of capital murder as alleg ed in L erma ’s indictment. 17may h av e b ee n ab le to g ive testimony nece ssary to a fair deter mination of the issues of g uilt or innocenc e”) . Acc ording ly , we sustain the State’ s sole appellate issue. 5

CONCLUSION
We reve rse the trial court’s order g ranting L erma ’s motion to dismiss and rema nd this cause to the tria l court for further proce eding s consistent with this opi nion.

__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field
Reverse d and Remande d Filed: Oc tober 25, 2018 Do Not Publish

L erma contends on appea l that the State waived any complaint it may have about the trial 5 court’s finding that a reasonable probability exis ts that the i nformer ca n g ive t estimony nece ssary to a fair deter

mination of g uilt or innocenc e beca use the State failed to object to this finding

. Howeve r, L er m a cites no authority indicating that the S tate was require d to object to this specific finding apar

t from appea ling the cour t ’s d ismiss al order

. Moreove r, even assuming, without deciding , that the State was req u i re d t o object to this finding , we conclude that it did so with sufficie nt specific ity to aler t the trial court to its complaint. At the J une 2017 hear ing, the trial court found “that t h e co nfidential informant can g ive testimony nece ssary for g uilt or innocenc e.” The prosec utor stated, “Note our exception, please , Your Honor.” The trial court responde d, “Except all y ou want, Counselor. You knowwher e the a ppellate c ourt is.” 18