Reversed and Remanded 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

Trial Court Cause No. 1614025

OPINION

Appellee Joseph Deshun Dunn was indicted for possession of more than 4

grams and less than 200 grams of a controlled substance, specifically cocaine. 

Appellee filed a motion for disclosure of a confidential informant pursuant to Rule 

508 of the Texas Rules of Evidence, which the trial court granted. See Tex. R. 

Evid. 508. When the State refused to divulge the identity of the confidential 

informant, the trial court granted appellee’s motion to dismiss the indictment 

against appellee. Because we conclude the trial court abused its discretion when it 
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ordered the State to disclose the identity of the confidential informant and 

subsequently dismissed the indictment when the State refused, we sustain the

State’s single issue on appeal and remand the case to the trial court for further 

proceedings.

BACKGROUND

Appellee was wanted on an open arrest warrant for murder. A confidential 

informant who worked for federal law enforcement personnel notified them that 

appellee, who was not known to the confidential informant, wanted to sell “stuff”

to the confidential informant. Law enforcement personnel then learned there was 

an active murder warrant on appellee and they “wanted him arrested on that”

warrant. The confidential informant arranged to buy drugs from appellee. The 

confidential informant notified law enforcement personnel that appellee would be

at a certain gas station, possibly in a silver SUV. There is nothing in the record 

indicating the confidential informant participated in the offense for which appellee 

was charged or was present at the scene when appellee was arrested.

The police did not intend to buy drugs from appellee, they instead intended 

to arrest appellee on the outstanding murder warrant. The police set-up 

surveillance at the gas station. When the police spotted an SUV in the gas station 

parking lot matching the SUV mentioned by the confidential informant,

undercover officers drove by in unmarked police vehicles. The undercover 

officers got close enough to the SUV to identify the person sitting in the passenger 

seat as appellee. Uniformed officers in marked police vehicles then moved in and

arrested appellant on the murder warrant. According to Officer John Pavlica, the 

only witness who testified during the motion to disclose hearing, the police did not 

attempt a controlled buy the night appellee was arrested. According to the State, 

the police discovered cocaine during the search following appellee’s arrest on the 
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murder warrant.

1

 Appellee was subsequently indicted for possessing more than 4 

grams and less than 200 grams of cocaine. It is this charge, not the murder charge, 

at issue in this appeal.

Appellee filed a motion pursuant to Rule 508 of the Texas Rules of Evidence

asking the trial court to order the State to disclose the identity of the confidential 

informant. According to appellee, the identity of the confidential informant was 

necessary for a fair determination of guilt or innocence and also because the 

confidential informant possessed information relevant to the legality of appellee’s 

arrest on the drug charge. Appellee did not challenge the legality of the murder 

warrant in the trial court and he does not challenge it in this appeal.

The trial court conducted an evidentiary hearing in chambers on appellee’s 

motion. During the hearing appellee did not introduce any evidence regarding a

connection between the drugs underlying the charge at issue in this appeal and his 

arrest on a murder warrant. Indeed, the record is bare of any evidence regarding 

how the police came to arrest appellee on the cocaine possession charge. Appellee 

also did not introduce any evidence establishing that the confidential informant 

was present at the scene when appellee was arrested. The trial court granted 

appellee’s motion and denied the State’s motion to reconsider. The State refused

to identify the confidential informant and appellee moved the trial court to dismiss 

the case pursuant to the same rule of evidence. The trial court granted the motion 

and dismissed the case against appellee. This appeal followed.

ANALYSIS

The State raises a single issue on appeal arguing 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 substantiating the State’s claim.
4

the identity of the confidential informant and subsequently granted appellee’s 

motion to dismiss when the State refused.

I. Standard of review and applicable law

We review the trial court’s ruling on a motion to disclose the identity of a 

confidential informant under Rule 508 for an abuse of discretion. Ford v. State, 

179 S.W.3d 203, 210 (Tex. 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 

disagreement. Id.

Generally, the State has a privilege to withhold the identity of any person 

who provided 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 appears from the

evidence in the case, or from some other showing by a party, that an informant 

may be able to give testimony necessary to a fair determination of a material issue

on guilt or innocence, and the State invokes the privilege, the judge must give the 

State an opportunity to show in camera facts relevant to determining whether the 

informant can, in fact, supply such testimony. See Tex. R. Evid. 508(c)(2). The 

two-part exception in subsection (c)(3) allows the court to order disclosure if 

“information from an informer is relied upon to establish the legality of the means 

by which evidence was obtained” and if “the court is not satisfied that the 

information was received from an informer reasonably believed to be reliable or 

credible.” See Tex. R. Evid. 508(c)(3). Unlike Rule 508(c)(2), Rule 508(c)(3) 

does not authorize the trial court to dismiss an indictment. See id.

A party requesting disclosure under Rule 508 has the threshold burden to 

demonstrate that the informant’s identity must be disclosed. 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 informant’s potential testimony must be shown to
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significantly aid the defendant—mere conjecture about possible relevance is 

insufficient to meet the threshold burden. Id. A party seeking disclosure must 

make a plausible showing of how the informant’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 disclosure is 

necessary. Olivarez v. State, 171 S.W.3d 283, 292 (Tex. App.—Houston [14th 

Dist.] 2005, no pet.).

II. The trial court abused its discretion under Rule 508(c)(2) when it 

ordered the State to disclose the confidential informant’s identity and 

subsequently dismissed the case against appellee.

The State initially argues the trial court abused its discretion when it ordered 

disclosure of the confidential informant’s identity and subsequently dismissed the 

case against appellee because appellee failed to meet his burden under Rule 

508(c)(2) to make a plausible showing of how the informant’s information may be 

important to a fair determination of a material issue on appellee’s guilt or 

innocence. See Abdel–Sater, 852 S.W.2d at 674. We agree with the State.

Officer Pavlica was the only witness who testified during the in-chambers 

hearing. Officer Pavlica testified he had heard that a confidential informant “had 

set up a buy, but no buy was ever done because the intention was not to do a buy. 

It was to arrest [appellee] on the murder warrant.” Appellee did not ask Officer 

Pavlica whether the confidential informant was present at the scene when the 

police arrested appellee on the murder warrant. As a result, there is no evidence in 

the record that the confidential informant was present at the scene when appellee 

was arrested. Appellee did not question Officer Pavlica about when, where, and 

how the police located the cocaine underlying the charge against appellee. 

Appellee also failed to offer any evidence demonstrating that the confidential 
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informant was a participant in the charged offense. Indeed, appellee failed to 

introduce any evidence establishing any connection at all between the confidential 

informant and the actual drug charge at issue here.

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

revealed, the confidential informant’s potential testimony must be shown to

significantly aid the defendant—mere conjecture about possible relevance is 

insufficient to meet this threshold burden. Bodin, 807 S.W.2d at 318. In other 

words, the defendant must show the confidential informant can give testimony 

necessary to a fair determination of the issues of guilt or innocence on the charged 

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

conclude appellee offered nothing more than conjecture and speculation that the 

confidential informant might offer testimony relevant to a fair determination of 

guilt or innocence. This is insufficient. Because appellee failed to meet his burden

under Rule 508(c)(2), we conclude the trial court abused its discretion when it 

ordered the State to disclose the identity of the confidential informant and 

subsequently dismissed the case when the State refused. See Ford, 179 S.W.3d at 

210 (stating that when an informant’s information was used only to establish 

probable cause for a search warrant or merely provided information causing police

to investigate a potential offense and the informant was neither a participant in the

offense for which the accused was charged nor present when a search warrant was 

executed or an arrest was made, then the identity of the informant need not be 

disclosed because the testimony is not essential to a fair determination of guilt or 

innocence); Southwell v. State, 80 S.W.3d 647, 650 (Tex. App.—Houston [1st 

Dist.] 2002, no pet.) (“The informant merely provided information that indirectly 

led to the warehouse being placed under surveillance. The trial court correctly 

ruled that the informant’s identity did not need to be disclosed by the State.”).
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III. The trial court abused its discretion under Rule 508(c)(3) when it 

ordered the State to disclose the confidential informant’s identity and 

subsequently dismissed the case against appellee.

Rule 508(c)(3)(A) authorizes a trial court to order the State to disclose a

confidential informant’s identity if (1) the informant’s information is relied on to 

establish the legality of the means by which the evidence was obtained, and (2) the 

trial court is not satisfied that the informant was reasonably believed to be reliable 

or credible. See Tex. R. Evid. 508(c)(3). We conclude the trial court abused its 

discretion under Rule 508(c)(3) because appellee failed to meet his burden to show 

the State relied on the confidential informant’s information to establish the legality 

of the means by which the evidence underlying the drug charge was obtained. See 

Bodin, 807 S.W.2d at 318. We reach this conclusion because appellee failed to 

establish that the confidential informant had any connection with the drugs 

underlying the charge at issue in this appeal. Appellee also failed to offer any 

evidence demonstrating that the police did not reasonably believe the confidential 

informant was reliable or credible. Thus, any determination by the trial court that 

the State relied on the confidential informant to establish the legality of the means 

by which the police obtained the evidence against appellee and that the 

confidential informant was not considered reliable or credible was based on mere 

speculation. See Bodin, 807 S.W.2d at 318 (“Evidence from any source, but not 

mere conjecture or speculation, must be presented to make the required showing 

that the informer’s identity must be disclosed.”). As a result, we conclude Rule 

508(c)(3) is not applicable under the facts of this case and the trial court abused its 

discretion to the extent it ordered disclosure pursuant to Rule 508(c)(3). See 

Thompson v. State, 741 S.W.2d 229, 231 (Tex. App.—Fort Worth 1987, pet. ref’d)

(concluding Criminal Rule of Evidence 508(c)(3) did not apply to the case because 

there was nothing in the record showing that the police did not believe the 
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confidential informant to be reliable or credible).

We also conclude the trial court abused its discretion to the extent it 

dismissed the indictment pursuant to Rule 508(c)(3) because this section of the rule 

does not authorize a trial court to dismiss a case. Compare Tex. R. Evid. 508(c)(2) 

with Tex. R. Evid. 508(c)(3).

CONCLUSION

Having concluded that the trial court abused its discretion when it granted 

appellee’s Rule 508 motion, we sustain the State’s issue on appeal, reverse the trial 

court’s order dismissing the case against appellee, and remand to the trial court for

further proceedings.

/s/ Jerry Zimmerer

Justice

Panel consists of Justices Christopher, Wise, and Zimmerer.

Publish — TEX. R. APP. P. 47.2(b).