NO. 07-09-00285-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C JULY 21, 2010

BRETT JOHNSON, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2009-422,580; HONORABLE CECIL G. PURYEAR, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION After the trial court overrul ed his motion to require the State to divulge the name of the confidential informant , appellant, Brett Johnson, plead ed guilty to the offense of possession with intent to deliver a controlled s ubstance, cocaine, in an amount of four grams or more but less than 200 grams. 1 After hearing the evidence regarding punishment, including appellant’s plea of true to the enhancement paragraph of the indictment, the jury assessed ap pellant’s punishment at conf inement in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) for a term of 60 years

1 T EX

. H EALTH & S AFETY C ODE A NN . § 481.112(d) (Vernon Supp. 2009).2 and a fine of $10,000. Appel lant appeals the denial of t he motion to identify the confidential informant. We affirm.
Factual and Procedural Background
On February 4, 2009, officers of the Lubbock Police Department executed a search warrant on Room 139 of the Tech I nn in Lubbock, Texas. The search was preceded by several hours of surveillance on the room. The surveillance revealed that a number of different individua ls were coming and going from the room. Appellant was named as occupant on the registration form for the room. Upon execut ion of the search warrant, quantities of both powder cocaine and crack cocaine, along with narcotics paraphernalia, were seized. Appe llant was in the room standi ng next to a small dresser where some of the co ntraband was found.

Prior to the issuance of the search wa rrant, a confidential informant had made a controlled purchase of suspected cocaine fr om appellant. Additionally, the affidavit stated that the confidential informant had be en inside of Room 139 within the preceding 72 hours and observed a substantial amount of cocaine base. Based upon this information, a magistrate for Lubbock Count y issued the search warrant that was subsequently served.
Appellant was indicted on the instant offense on Marc h 4, 2009. On June 19, 2009, the trial court held a heari ng on pretrial motions. At this hearing, appellant’s trial counsel raised the issue of discl osure of the identity of t he confidential informant. The State requested that the matter be set for a separate hearing, which the trial court granted. On July 13, 2009, the trial court conducted a hear ing on appellant’s motion to3 reveal the identity of the confidential inform ant. Appellant testified at that hearing and, after hearing appellant’s testimon y, the trial court ruled that appellant had met his initial burden of making a plausible showing that the confidential informant could give testimony necessary to a fair determinati on of guilt. The State then invoked the privilege not to reveal the informant’s identit y pursuant to Texas Rule of Evidence 508. See T EX

. R. E VID . 508. 2 The State then requested permi ssion to present either live testimony or affidavits to support its posit ion that the identity of the confidential informant was not required. At the same ti me, the State requested permission to submit case law for the trial court’s consideration, along with the affidavits. The trial court granted the request and ordered the a ffidavits to be filed by July 17 th . On July 29, 2009, prior to beginning voir dire examination, the trial court reconvened the pretrial hearing regarding the identity of the conf idential informant. At that ti me, the trial court overruled the motion with the following statement: “The Court is going to deny the request based upon case law.” It is this statement which forms the basis for appellant’s contention on appeal.
Appellant contends that bas ed upon the statement of the tr ial court, the trial court did not consider the affidavits prior to denying the request to reveal the identity of the informant. We do not so construe the trial court’s statement and, therefore, overrule appellant’s contention.

2 Further reference to the Te xas Rules of Evidence will be by reference to “Rule ___.”4 Standard of Review
We review the trial court’s action in deny ing the motion to reveal the identity of the informant under an abuse of discretion standard. See Ford v. State , 179 S. W. 3d 203, 210 (Tex.App.—Houston [14 th Dist.] 2005, pet. ref’d). A trial court abuses its discretion only when its decision falls outsi de the zone of reasonable disagreement. See Salazar v. State , 38 S.W.3d 141, 151 (Tex.Crim.App. 2001).
Analysis
Appellant presents a single issue for our consideration. Appe llant contends that the trial court’s ruling of Ju ly 29, 2009, must be read to m ean that the trial court ruled against revealing the informant’s identity so lely based upon the case law submitted by the State and, therefore, did not consider the affidavits also submitted by the State. This is error, according to appellant, because the effect of the trial co urt’s initial ruling on July 13, 2009, was that appe llant had made a plausible sh owing that the informant could give testimony necessary for a fair determination of guilt. See Bodin v. State , 807 S.W.2d 313, 318-19 (Tex.Crim.App. 1991) ( holding that once a defendant meets the initial requirement of a plausible showing of how informer’s information may be important, an in camera hearing is required). According to appellant’s theory, the words used by the trial court in overruling appellant ’s motion demonstrate that the trial court did not consider the affidavit s in making its ruling.
We do not view the language used by the trial court as narrowly as does appellant. The record before us clearly demonstrates that: 1) the trial court did rule that appellant had made a plausible showing of need fo r the informant’s identity; 2) the State5 invoked the privilege not to disclose pursuan t to Rule 508; and 3) the State asked to present affidavits for in camera examination by the trial c ourt to refute appellant’s plausible showing of need. Fu rther, the record demonstrates that the affidavits were, in fact, presented to the trial court prior to it s final ruling on July 29, 2009. This is so because after the trial court’s ruling on July 29, 2009, the State’s attorney made the following request of the trial cour t concerning the affidavits: Your honor, within this particular case the State had provided the Court as far as that affidavit, and we would ask that that be submitted to the record as far as in-camera and sealed for any appellate purposes. The trial court granted the request and, signi ficantly, appellant did not object to this procedure.
In addressing the complaint of appellant, we are limited to the record before us. Absent a showing to the contrary, there is a presumption of regularity attending the proceedings in the trial court. See Wright v. State , 873 S.W.2d 77, 80 (Tex.App.— Dallas 1994, pet. ref’d). The burden is on the appellant to overcome the presumption. Id . Where the record does not affirmatively reflect that procedural requirements were violated, the presumption of re gularity must prevail. Id . (citing Jones v. State , 646 S.W.2d 449, 449 (Tex.Crim.App. 1983)). Final ly, there is the ma tter of the State’s request to have the affidavit included in t he record. If the affidavit had not been reviewed by the trial court, appellant had a dut y to object to the request to include the affidavit in the record on appeal. See T EX

. R. A PP

. P. 33.1. In this case, the appellant’s silence acted as acquiescence to the request by the State’s attorney and the trial court’s granting of said request. See Davis v. State , 507 S.W.2d 740, 741 (Tex.Crim.App. 1974) (where record is silent, appellate court presumes that proper number of jurors6 impanelled); Garza v. State , 479 S.W.2d 294, 296-97 (T ex.Crim.App. 1972) (where record is silent, appellate court presumes that the State acquie sced in judge assessing punishment); Jones v. State , 644 S.W.2d 546, 549 (Tex.App .—Dallas 1982, pet. ref’d) (where record is silent as to when motion was filed, appellate c ourt presumes it to support trial judge’s ruling that motion was filed after plead ing to the indictment). Accordingly, when we consider all of the circumstances of the case, we are of the opinion that the trial court’s action in ov erruling appellant’s mo tion to reveal the informant was proper and not an abuse of discretion. See Edwards v. State , 813 S.W.2d 572, 580 (Tex.App.—Dallas 1991, pet. re f’d). Appellant’s sole issue is overruled.

Conclusion
Having overruled appellant’s single issu e, we affirm the judgment of the trial
court.
Mackey K. Hancock Justice

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