Reversed and R emanded and Opinion filed November 17 , 2020

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00701

- CR

THE STATE OF TEXAS , Appellant

V.
JOSEPH DESHUN DUNN , Appellee
On Appeal from the 180th District Court

Harris County, Texas Tr ia l Co urt Cau se No. 1614025

OPINION Appellee Joseph Deshun Dunn was indicted for possession of mo re than 4 grams and less than 200 grams of a controlled substance , specifically cocaine

. Appellee filed a motion for disclosure of a confi dential info rma n t p urs u a nt to Rule 508 of th e Texas Rules of Evidence , which the tria l court granted

. See Tex. R. Evid. 508. When the State ref used to divulge the identity of the confidential inf ormant, the t r ial court granted a pp ellee ’ s motio n to dismiss the in dic t ment against appellee. Because we c onclude the tri al court abused its discretion when it2

order ed the State to disclose the i dent ity of the confidential inf ormant and subsequen tly dismissed the ind ictment when the State re fused, we su stai n t he S tate ’ s sin gl e issue on appeal and remand the case to the trial court for further proceedings.

B ACKGROUND Appellee was wanted on an open arrest warrant for murder. A confidential informa nt who worked for federal law enforce ment personn el n o ti fie d them that appellee , who was not known to the confi dential informa nt, wanted to sell “ stuff ” to the confidential informa nt. Law enforcement personnel then lea rned the re was an active murder warrant on appellee and they “ want ed him arrest ed o n th a t ”
warrant. The confi dent ial informa nt a rranged to buy drugs from appellee . T he confidential informa n t notified law enforcement personnel that appell ee would be
at a certain gas stat ion , possibly in a silver SUV

. T here is nothi n g in the rec o rd indicating the confi dential informa nt participate d in the offense for which appellee

was c harged or was present at the scene when appellee was arrested

. The police did not i ntend to buy drugs from appellee , they inste a d intended
to arrest appell ee on t he outs tanding murder warrant

. The police set

- up

sur veillance at the gas station . When the police spotted a n SUV in the gas station parking lot m a tching the SUV menti oned by the confidential informa n t, underc ov e r officers dro ve by i n un marked police vehicles . The under cover

o fficers g o t close enough to th e SUV to identify the person sitting i n the passenger seat a s appellee. U n iformed o ffice rs in marked p olice vehicles then moved in and

a r rest ed appe llant on the m urder warrant

. According to Officer John Pavlica, the only witness who testified during th e motion to disclose hearing , the police did not attempt a controlled buy th e night appel lee was arrested. A ccording t o the State , the police discov e red coc aine du rin g the search following appellee ’ s arrest on the3

murder warrant

. 1 Appellee was su b sequ en tly ind ic ted for posses sing mo re than 4
grams and les s than 200 grams of cocaine. It is t his charge, n o t the murder charge , at issue i n this appeal

. Appellee filed a motion pursuant to Rule 508 of the T e xas Rules of Evidence asking the trial court to order the State to disclose the identity o f the c o n fidential informant. Ac cording to ap p ellee, the id e ntity of t he con f idential informa nt was

necess ary for a fair det ermination of guilt or innocence and also because the confidential info rmant possessed informat ion relevant to the legality of appellee ’ s arrest o n the drug charg e. App ellee did not challenge the legal ity of the murder warrant in the trial court and he does not challenge it in this appeal.
The trial court con ducted a n evidentiary hearin g in chamber s on appel lee ’ s motion. During the hearin g appel le e did no t intr oduce a ny evidence regarding a

co nn ection between the drugs underlyi ng the charge at issue in this appeal and his
arrest on a murder warrant. Ind eed, the record is bare of any evidence regar ding how the police came to arrest appe llee on the cocaine possession ch arg e. Appellee also did not intro d uce any evidence establishing that the confidential informant was present at the scene when appel lee was arrested

. The trial court granted appellee ’ s mot ion and denied the State ’ s motion to reconsider. The State refused
to identify the confidentia l in fo r mant and appellee mov ed the trial co urt to dismiss the case pursuant to the same rule of evidence. The trial court granted the motion and dismissed the c ase against appell ee. This appeal followed

. A NA LY SIS
The State ra ise s a sin gle issue on appea l argu i ng the trial court abused its discretion when it granted appellee ’ s Rule 508 motion to force the State to disclose

1 There is no evidence in the record substantiati ng the State ’ s claim

.4

the identity of the confidential i nformant and subsequently granted appellee ’ s motion to dismiss when t h e State refused.

I
. S ta ndard o f revi e w and appli cable law
We review the trial court ’ s ruling on a motion to disclose the identity of a confid ential informant under Rule 508 for an abuse of discretion. Fo rd v. State , 179 S.W.3d 203, 2 10 (Te x . App.

— Houston [14th Dist.] 2005, pet. ref’d)

. The trial
court ’ s ruling will not be disturbed unless it falls outside the zone of reasonable disagr eement. Id. Generally, the State has a privil ege to withho ld the identity of any person who provi d ed information relating to, or assisting in, the investigation of a possible crime. See Tex. R. Evid. 508(a) ; Ford , 179 S. W.3d at 210

. If it app ears from the

ev idence in the case, or from so me oth e r showing by a party, that an informant may be able to give testimony necessary to a fair determination of a material issue on guilt o r innocence, an d th e State invokes the privi lege, the judge must give the State an op portunity to show in camera fa cts re l evant to determining whether the informant can, in fact, supply such testimony. See Tex. R. Evid. 508(c)(2)

. The
two

- part exception in subse ctio n (c)(3) allows the court to order disclosure if

“ information f

rom an informer is relied upon to estab l ish the legality of the means by which evidence was ob tained ” and if “ the court is not satisfied that the information was received from an inform er r easo nably believed t o be reliable or credible. ” See Tex. R. E vid

. 508(c)(3). Unlike Rule 508 (c)(2) , Rule 508(c)(3) does not authorize the trial court to dism iss an indictment. See id. A party requesting disc losure under Rule 508 has the thre shol d burden to demonstrate that the informant ’ s ident ity must be d isc losed. Bodin v. State , 807 S.W.2d 313, 318 (Tex. Crim. App. 1991)

. Before a court orders the identity of the informant to be revealed, the info rmant ’ s potential testimony mu st be shown to5

signi ficantly aid the defendant

— mere conjecture abo ut pos s ible relevance is insufficient to meet the threshold burden. Id. A party seeking disclosure must make a plausible showing of how the inform ant ’ s information may be important. See Abdel

– Sater v. State , 852 S.W.2d 671, 674 (Tex. App.

— Houston [14th Dist.] 1993, pet. ref’d)

. Only after a defendant makes a plausible showing is the trial court required to hold an in camera hearing to determine whether dis clos ure is

ne ces sary. Olivarez v. State , 171 S.W.3d 283, 292 (Tex. App.

— Houston [14th Dist.] 2005, no pet.)

. II. Th e trial court abused its discretion und er R ule 508(c ) (2) when it ordered the State to discl os e the confide nti al informa nt ’ s identi ty and
su bseque n tly di s missed the c ase aga inst appellee.
The State initial ly argues the trial court abused its disc retion when it ordered disclosure of the con fidential informa nt ’ s identity and subsequently dismis sed the

case aga inst appellee because appellee fail ed to m eet his bu rden under Rule 508(c)(2) to make a plausible showing of how the informa nt ’ s information may be i mportant to a fair determination of a material issue on appellee ’ s guilt o r innocence

. See Abdel

– Sater , 852 S.W.2d at 674

. We agree with the St ate.
Officer Pavlica was the only witness who testified during the in

- chambers hearing

. Officer Pavlic a testifi ed he had heard that a confidential informa nt “ had
set u p a buy , but no buy was ever done becaus e the i nt ent ion was not to do a buy. It was to arrest [appellee] on the murder warr a nt. ” Appellee did not ask Officer Pavlica whether the confidential informa nt was present at the scene when t he police arr est ed appel lee on the mu rder warrant

. A s a re s ult , there is no evidence in the record that the confidential informa nt was present at the scene when appel lee was arrested. Appellee did not question Officer Pa vlica about when , where , and how t he police loc ate d the cocaine under lying the charge a gainst appellee. A ppellee also failed to o ffer any evidence demonstrating that the confidential6

informa nt w as a part icipant in the c harged offe nse

. Indeed, appellee fa iled to introduce any evidence est ablishing a ny connection at all betwe en the confidential informant and the act

ual drug cha rge at issue here

. Before a trial court orders the identity of a confidential informant to be

re vealed, the confidential informant ’ s potential testimo ny mu st be sh own to significantly aid the defendant

— m ere co n jecture about possible relevance is insufficient to meet th is threshold burden. Bodin , 807 S.W.2d at 318. In other

w ords, the defendant m u st show the confidential informant can give testimo ny necessary to a fair determination of the issues of guil t or i n nocence on the charged offense

. Anderson v. State , 81 7 S.W.2d 69, 72 (Tex. Crim. App. 1991)

. We conclude appellee offered nothing mor e than c onjecture and sp eculation that the

con f idential informant might offer testimony relevan t to a fair d e terminati o n of guilt or innocence. This is in sufficient. B ecause appellee failed to meet his burde n under Rule 508(c) ( 2) , we conclude the trial c our t abused its di s cre tion when it ordered the State to disclose the id entity of the confi dential inf ormant and subsequently dismissed the case when the State refused. See Ford , 179 S.W.3d at 210 (sta t ing tha t w hen an infor m ant ’ s information was used only to establish probable c ause f

o r a search warrant or merely provided information causin g police to investigate a potential offense and the informa nt was neit her a participant in the offense for which the ac cus ed was charged nor present when a search warrant was executed or an arr est wa s made, then the identity of the informant need not be disclosed because the testimony is not essential to a fair de termination of guilt or innocence ); Southwell v. State , 80 S.W.3d 647, 650 (Tex. App.

— Ho uston [ 1st Dist.] 2002, no pet.) ( “ The info rmant merely provided information that indirectly led to t he warehouse being placed under surveillance. The trial court correctly ruled that th e informant ’ s id entity did not need to be disclosed by the State. ” ).7

II I
. T h e trial court abused its discretion under Rule 508(c ) ( 3 ) when it ordered the State to discl ose the confidential informa nt ’s id enti ty and subsequently di s missed the c ase aga inst a pp ellee.
Rule 5 08( c)(3)(A) authorizes a trial court to order th e State to dis c lose a confidential inform ant ’ s identity if (1) the informant ’ s information is relied on to establish the legality of the mean s by which the evidence was obtained, and (2) the
tr ia l court is no t s atisfied th at the info rmant w as reasonably believed t o be r e liable or credible

. See Tex. R. Evid. 508(c)(3). We conclude the trial co urt abused its discretion under Rule 508(c)(3) because appelle e failed to meet his burden to show the S tate rel ied on the c onfidential informant ’ s information to esta b lish th e lega l ity of th e means by which the evidence underlying the drug charge was obtained

. See Bodin , 807 S.W.2d at 318

. We reach this conclu s ion b eca use appel lee failed to establish that the confidential informan t ha d a ny connection with the drugs unde rlying the charge at issue in this appeal

. Appe llee also failed t o offer any evide nce demonstrating that the police did not reason ably b elieve t he co nfi denti al informa nt was reliable or cre dible. Thus, any determin ation b y the trial court that the State relied on the confidential inf ormant to establish the legality of the means by whic h the police obtained the evidence against appellee an d that t he

co nfi dential informa n t was not considered reliable or credi ble was b ased o n mere speculation. See Bodin , 807 S.W.2d at 318 ( “ Evidence from any source , but not mere conjectur e or speculation, must b e presente d t o mak e the required showing that the informer ’ s identity must be dis closed

. ” )

. As a result, we c onclude Rule 508(c)(3) is not applicable under the facts of this case and t he trial court abused its discretion to the e xt ent i t ordered disc losure pursua nt to Rule 508(c)(3)

. See Thompson v. State , 741 S.W. 2d 229, 231 (Tex. A pp.

— Fo r t Worth 1987, pet. ref ’ d) (concluding Cr im inal Rule of Evidence 508(c)(3) d i d not ap ply to the case be cause the re was nothing in the record showing that the p olice did not beli ev e the8

confidential informant to be reliable or cr edible ).
We also concl ude th e trial court abused its discretion to the extent it dismissed the indictment pursuant to Rule 508(c)(3) because this section of the rule do es not a u th orize a tri al co urt t o di s mi ss a case. Compare Tex. R. Evid. 508(c)(2) with Tex. R. Evi d. 508(c)(3 )

. C ON C LUSION Having concluded that the trial court abused its di sc retion when it granted

a ppellee ’ s Rule 508 motion, we sustain t he State ’ s issue on appe al , reverse t he tr ial
court ’ s order dismissing the case a gainst appellee , and remand to the trial cou rt for furthe r proceedings.

/s/ Jerry Zimme rer Justice

Panel consists of Justices Christopher, W ise, and Zimm erer. Publish

— T EX

. R. A PP

. P. 47.2( b).