### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00410
- CR

Rick Allen Hirs t, Appellant

v. The State of Texas, Appellee

FROM THE 51ST DISTRICT COURT OF TOM GREEN COUNTY NO. A
- 18
- 0749
- SB, THE HONORABLE CARMEN DUSEK, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Pursuant to a plea agreement, Rick Allen Hirst pled guilty to the first

- degree

felony offense of possession with intent to deliver a controlled substance (methamphetamine) in an amount of four grams or more but less tha n 200 grams

. See Tex. Health & Safety Code § 481. 102(6) , . 112(d) ; Tex. Penal Code § 12.32

. Th e dist ri ct court accepted the State ’ s plea agreement with Hirst, found him guilty , and assessed Hirs t ’ s punishment at sev enteen years ’ imprisonment consistent wi th that agreement

. Before pleading gui lty, Hirst filed a motion to disclose the identity of a confidential informant , which the district court denied.

In one issue o n appeal, Hirst contend s that the district court abused its discretion by not conduct ing an in camera hea ri ng to d et ermine whether the inf ormant ’ s testimony was necessary to a fair determination of Hirst ’ s guilt or innocence or would provide evidence of a possible entrapment defense. We will affirm the dist rict cour t ’ s judgm ent of co nvicti on .2 BACKGROUND Af ter a grand jury indicted Hirst for possession with intent to deliver a controlled substance (methamphetamine) in an amount o f four grams or more but less than 200 grams , he filed a “ Motion to R equire D isclosure of All Informer s Relied Up o n and for Produ ct ion of Said Informers in Open Court. ” The district court he ard Hirst ’ s motion

. At the start of the hearing,
t he State asserted privilege under Texas Rule of Evidence 508 , a llow ing it to w ithhold the identi t y o f a perso n who ha s provided information to a law

- enfor c ement officer t hat relat es to , or assists in , the investigation of a pos s ible violation of law

. See Tex. R. Evid. 508(a) ; Coleman v.
State , 577 S.W.3d 623, 635 (Tex. App.

— Fort Wort h 2019, no pet.)

. B ut Hirst conten de d that an

e xception to the R ule 508 privilege would apply if the confidential informant was “ the one who brought the stuff , ” a long with the bags and scale, because then “ the informant ’ s testimony would be mater ial as to the issue of po s ses s [ ion ] with int en t to deliv er . ” See Tex. R. Evid. 508( c ) (2) (A ) ( provid ing that in criminal case, privilege against disclosure of informant ’ s identity do es not apply if trial court finds existence of re asonable pr ob ability that infor me r can give testim on y

“ necess ary to a f

air dete rmi nation of guilt or innocence ” ). Before testi m ony began, the distric t
court admitted exhibits into evidence, including the affi davit for the search

- and

- arrest

- warrant , the search warrant, the sear ch

- warrant return, and a n au di o r ecordi ng of Hirst’s custodi al statement to police

. Hirst stipulated that when the search warrant was execu ted, the confi dential informant was not present

.

Detective Tr avis Mc Gee of t he Stree t Crimes Divis ion of the San Ange lo Police Departm e nt w as th e o nly wi tness o n Hirst ’ s moti on . Detective McGee state d that on the date of the arrest , he applied for a search warrant for a motel room based on information fr om a

c onfidential info rmant who had previously provided him with t ru thf u l i nf ormat ion about illegal3

drug activity

. Detectiv e McGee testified that he believed the confidential informant to be reliable and credible.

Detective McGee ’ s affidavi t for the s ea rch

- and

- a rres t w arrant alleged that the

c onfidential i nformant to ld hi m that Hirs t possessed a quantity of m ethamphetamine i n a motel

room within the preceding twenty

- four hours . The confidential informant further stated that Hirst wa s i nvolved in th e distribution of m ethamphetamine in San Angel o and that t he conf idential in formant had seen and rec ognized the substance Hirst p ossessed as

m ethamphetamine. Detective McGee averr ed that the informant had provided “ true, reliable, and correc t ” information about illeg al drug activity o n t hr ee diffe rent occasi ons in the p re ceding
two months

. Detective McGee testified that he ex e c u ted the search warrant and noted that t he informant was not prese nt during the search or when the met hamphetamine was f oun d i n the

m otel room

. As ide fr om p rovid ing the informa tion incorporated into the search

- warrant affi davit , the informa nt did not parti cipate in or witness an y la w - enfo rcement activities

. The search

- warr ant return that Det e ctive McGee co mpl eted c ontained a list of th e i tem s se ized from inside Hirst ’ s motel room : five plastic bags containing a crystal

- like substance of suspec ted

m ethamphe tamine ; t en round orange pills ; forty

- eight blue pills ; eleven white pills; four pieces of a white pill ; o ne sil ver spoon ; one black

- and

- si lver spoo n ; one box of plastic bags; and one digital scale

. Detective Mc Gee testified that the items fo und during th e search led to Hirst ’ s
arrest for “ [m] anufacture and delivery of a controlled substance , Penalty Group 1, four grams to two hundred gra ms of m etham phetamine

. ” On cross examination, Det ective McGee acknowledged that the informant ’ s tip was the sole basis for the search warrant and that the informant did not perform any controlled buy from Hirst

.4 When Detecti ve McG ee c onclu ded his testi mony , the State contended that Hirst ha d not met his burden of demonstrating that the confi dential informant ’ s identity m ust be disclosed by making a “ plausible showing ” of how the informant’s information m ight be important “ and, therefore, the mo t io n should be denied on its face. ” T he d istrict court took a

rece ss to listen to the a u dio re cording of H irst ’ s custodial statem ent to police that was made when he was arrested

. On the recording, Hirst state d that a man he knew

— “ Davi d Stein , or Stein

- so met hing ”

— came by and “ left some shit

. ” When asked what he me ant by “ shit, ” Hirst
st ate d, “ Uh d ope, uh meth

. ” P o l i c e asked Hirs t whether they would find any “ dope talk ” on his phone, showing that Hirst agre e d for t he man to come by and “ fro nt [him] som e d ope . ” Hirst stated , “ N o, I didn ’ t ask him to front me anythi ng . . . . But trying t o s ell some, I ’ ve been trying to sell some

. I mean , uh, j ust to, I mean , we neede d some money for u h, you know, just everyda y things like drinks, food, you know

. ” Hirs t al so told police that the last ti me he “ used ”

was 6 :00 or 7:00 th a t morning , shoot ing up some of what the man bro ught to h im.

A fte r listening to the recording, the district court ruled that Hirst “ ha [ d ] not met the initial burden that is requir ed ” and over rul ed the motion to disclos e the confidential informant ’ s id en tity. Hirst p led gu ilty , and t he district co urt found him guil ty a n d a ssessed punishment

. This appeal foll ow ed.

DISCUSSION Denial of m otion to d isclos e identity of confidential informant w i t h o u t i n c a m e r a h e a r i n g

Hi rst contends that the dis trict co urt erred by denying h is mot ion t o dis clos e the
i dentity of the confid e ntial informant without first conducting an in camera hearing to determine

w h ether the confid ential informant could give testi mon y necessary to a fair d etermination of5

Hirst’s guilt or innocence or whether the confidential informant cou ld provide evidence of a possible entrapment defense. We review a trial court’s de nial of a motion to di sclose th e id e n tity of a confid entia l inf

orm ant under an abus e - of

- discretion standard

. Taylor v. S tate , 604 S.W.2d
1 75, 179 (Tex. Crim. A p p. 1980) ; Coleman , 577 S.W.3d at 635 ; Haggerty v. State , 429 S.W .3d
1 , 8 (T e x. App

. — Houston [14 th Di st. 2013, pet. ref ’ d )

. The trial court’ s rul ing will not be disturbed unless it fa lls out side the zone of reasonabl e di sagreem e nt. Colem an , 577 S.W.3d at 635 ; Hagg erty , 429 S.W.3d at 8

.

Texas Rule of Evidence 508 afford s the State a p ri vi lege to w ithhold dis c l o s ure of the identity of a person who has pro vided in formation to a la w enf or c ement officer t hat relat es to or assists in the inve stigation of a pos s ible vio lation of law

. Tex. R. Evid. 508(a) ; Coleman , 57 7 S.W.3d at 635

. T h e pr iv ilege again st disclosure in Rule 508 is subject to ex ceptions

. Te x. R. Evid. 508(c) ; Bodin v. State , 807 S.W. 2d 313, 317 (T ex. Crim. App. 1991)

. Am on g them is t he subsect ion (c)(2 ) , provid ing that th e p rivilege against disclosure do es not apply i n a criminal case

“ if the court finds a re asonable pr ob a bilit y e xist s that the infor me r can give testimony necess ary
to a fair dete rmination of guilt or innocence

. ” S ee Tex. R. Evid. 5 08 ( c ) (2) (A)

. Further, “ [i] f it
appears that an inform er m a y be able to give testimony requir ed to invoke this exception [as to dete rmi na tion of g uilt o r inn o cence] ” and if the State c laims the pr ivilege, the cou r t must give the State an opportunity to s how , i n camera , facts rele van t to determining whether the informant ca n supply that testimony

. Id

. R. 508(c)(2)(C) ; Haggerty , 42 9 S.W .3d a t 8

.

“ T he d ef endan t has the th reshold burden of dem onstrating that identi t y must be disclosed. ” Bodin , 807 S.W.2d at 31 8 ; Coleman , 577 S.W.3 d a t 635 ; Haggerty , 429 S.W.3d at 8

. Before a court orders disclosure of the identity of the inform ant , the in f o rma nt ’ s p oten ti a l
te s timony must be show n to si gnific antly aid the defendan t

— m ere conjecture about possible6

relevance is i ns ufficient to meet t he t hres hold burden. Bodin , 807 S.W.2d at 3 18 ; Coleman , 577 S.W.3d at 635 ; Haggerty , 429 S.W.3d at 8

. A def en d a nt seekin g di sc losur e must ma ke a plausible sho wing o f how the informant’s i nformation may be im portant. Bodin , 807 S.W.2 d a t 318 ; Coleman , 57 7 S. W.3d at 635 ; Haggerty , 429 S.W.3d at 8

. “ Only af ter a defendant makes a plausible showing is th e t rial c ou r t required to ho ld an in camera h earing to deter mine w heth er disclosure is n e cessary. ” Coleman , 577 S.W.3d at 635 ; Ha ggert y , 429 S.W.3d at 8

. Whe n it is shown that an informant was an e yewitness to an alleged offense, the informant can give tes timony n e c essary to a f ai r det ermination o f the issues of guilt or innoce nce. Colema n , 577 S.W.3d at 63 6 ; Haggerty , 429 S.W.3d at 8

. But if the informa tion from the informa n t was used on ly to est ablish probable cause for a search warrant or if th e inf orm ant “ m er e l y provide d in fo rmati on that led police to inves tigate a potential offense ” a nd

“ was n either a participant i n the offe n se for which the accused was charged nor pre sent wh en a search warran t was e xecuted or an ar rest was made, ” then the informa n t ’ s ident it y “ need not be di sclos ed becau se the testimony is not e ssential to a fair det e rmination of guilt or innoce nce. ” Colema n , 577 S .W.3d at 636 ; Hagg erty , 429 S.W.3d at 8 ; see also Davis v. State , No. 03

- 13

- 00456

- CR, 2014 Tex. App. LEXIS 11094, at *13 (Tex. A pp.

— Austin Oct. 8, 2014 , no pet. ) (mem. op. , not designa ted f or publication) (same)

.
1. Testimony necessary to a fair determinati on of Hirst’s guilt or innocence

Hirst conten d s that because he w as charged with possession with intent to deliver

a con troll ed substance , “ and not m erely possession of a controlle d substance, the inform er ’ s testimony is relevant to guilt or innocence. ” However, there was no plausible showing below that the confidentia l informant ’ s testimony might be necessary to a fair de termi nat ion of Hir st ’ s7

guilt or inn ocence of possession with intent to deliver a controlled substance

. Cf. Tex. R. Evid. 508(c) (2) ; Bodin , 807 S.W.2d at 31 8

. W hen police questioned Hirst about how he got the

“ meth ” that was left with him and whether h e a gre e d to hav e someone “ fro nt [him] some dope , ” Hirst a ckno wl edged trying to se ll it: “ I didn ’ t ask him to front me anything

. . . . B ut trying t o sell

some, I ’ ve been trying to sell some. . . . [W] e needed some money for . . . j ust everyday things like dr inks, fo od, you know.” Although Hirst contends that his sta teme nts to police at the time of his arrest are “ virtually identic al ” to the facts in Bodin

— wher e the defendant presented sufficient informat ion showing that the informer could give testimony n ece ssary to a fair determination of the defendant ’ s guilt

— here, the confidential informant did not perform any “ controlled buy ” of

narco tics from Hirst

. See 8 07 S.W. 2d at 315, 31 8 (noting that police gave informer $25, arranged for informer to go into def endant ’ s ap artment , that “ informer e merged w ith methamph etamine and told police he had purchased it from [defendant] , ” and that “ police used the informer ’ s inf

ormation to procure a search warrant ” that was ex ecuted next day ). Further, Detectiv e McGee t estified tha t the confidential informan t ’ s involv em en t in t his case was l imite d to provid ing information supporting the search warr an t

. Detective McGee stated that the confidential informant did not participate in or witness an y la w enfo rcement activities , and tha t t he confidential i n forman t was not pre se nt during the search o r when the methamphetamine was f oun d i n the m otel ro o m. Simi lar ly , Hirst stipulated th at the confidential informant

— at least, the man that Hirst suspected was the confidential inform ant , who had allegedly dropped off the meth amphet amine to Hirst at the mo tel

— “ was not present at the time that the search warrant was exe cuted

. ”

Crediting D e tective McGee ’ s testimony , and given Hirst ’ s statement to police and stipul a t ion at the hearing , the dist ric t court could have reasonably found that test imony from the8

confidential informa nt w ould address only the existence of probab le cause for the search war ra nt. Because such testimony would have been un necessary to a fair determination of Hirst ’ s guilt or
inn ocence for possession with intent to deliver a controlled s ubstance , the distri ct court could have reasonably determined that Hirst failed to meet h is th reshold burden of showing that disclosure of the con f

idential infor mant ’ s identi t y was re quired

. Se e B odin , 807 S.W.2d at 31 8 ; Coleman , 577 S.W.3 d at 6 36 ; Hagger ty , 429 S.W.3d at 8 ; see also Davis , 2014 Tex. App. LEXIS 11094, a t *13

.
2. Evidence of p o s sible entrapment defense

In addition to his contention that the confidentia l informant ’ s te stimony wou ld be relevant to the issue of whether he committed the offense o f possess ion with int ent to deliver a controlled substance , H ir s t further contend s tha t the informer ’ s testimon y is relevant because it

“ c ould form the basis of an entrapment defen se. ” See T e x. Penal Code § 8.06 (addressing entrap ment defense) ; c

f. B odin , 807 S.W. 2d at 315, 31 8 (noting that informer who performed

“ co ntrolled buy ” from defe ndant before search warrant was obtained “ could have had information relevant to possible entr apment ” ). T he Court of Criminal Appeals has stated that

“ evidence from any source , but not mere conjecture or speculation, must be present ed to make the required showing that the informer ’s identity must be disclos ed. ” Bodin , 807 S.W.2d at 318

.

T he o nl y evidence tha t Hirst provided to the district court in support of his belief that “ th e informant is the same indi vidual that came by the m otel room earlier that day ” was his custodial statement to police, alleging that a man named “Davi d Stein , or Stein

- s omething , ” br o ught the m etha mp hetamine to Hirst ’ s room and left it there

. On the other hand, Detective
McGee testi fied that the confidenti al informant was no t pr esen t when police executed the search9

warrant and further testified that the confidential info rmant was n ot a party to any transaction with Hirst involving the methamphet amine. On this record, the district court c ould have

c oncluded

— within the zone of rea sonable disagreement

— that Hirst did no t make a plausible showing t hat the informant might be t he same per son r es ponsible for the methamphetamine , beyon d his mere conjectu re or speculation to that effect in his statement to police

. I n the absence of that t hreshold showing, disclosure of the informer ’s identity was not required

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

. M oreover, once the distr ict court concluded that Hirst “ ha [ d ] n ot met the initial burden that is requir ed ” for disclosure of a c onfidential informant ’ s iden tity , the district court would not have had any reason to proceed with an in cam era hea ring. “ Onl y a f ter a defendant makes a plausible showing is th e trial cou rt required to ho ld an in camera h earing to deter mine wheth er disc losure is n e cessary. ” Coleman , 577 S.W.3d at 635 ; Ha ggert y , 429 S.W.3d at 8 ; see Menefee v. State , 928 S.W.2d 274, 2 79 ( Tex. Ap p.

— Tyler 1996, no pet.) ( concluding that trial court did not abus e its discretion b y declining conduct in camera hearing or by r efusing to order disclo s ur e of informant ’ s i dentity

— in case where defen dant alleged that informant could have provide d i nformati on about whether defendant was entrap ped

— because “the only testi mony was that the arresting officer had personal contact with th e informant, that the i nfo rm ant was not present at [defendant]’s arrest, and tha t the informant was not found during the search of [defendant]’s building ” ).

In sum, t he record supports th e district court ’ s determin ation that Hirst failed to make a plaus i ble showing that : (1) the confid en tial informant’s testimony was necessary to a fair determination of Hirst’s guilt or innocenc e o f possession with intent to deliver a controlled substance , and (2) the informant could provid e evidence of a possible entrap ment defens e . In the10

a bsence of that thr eshold showing, an in camer a hearing was not required

. See Coleman , 577
S. W.3d at 635 ; Ha ggert y , 429 S.W.3d at 8 ; Menefee , 928 S.W.2d at 279

. Accord ingly , w e conclude t hat the district court ’ s d etermin ation that a n in camera hea ring was unnecessary

— after the distr ict court determined that Hirst failed to make a thre shold showin g that the c onf i d ential
inf ormant could give testimony necessary to a fair determination of Hirst ’ s guilt or innocence or provide evidence o f a possible entrapment defense

— was no t outside the zone of reas onable disagreement and , thus, was not an abuse of t he distr i ct cou rt ’ s discretion

. W e over ru le H ir st ’s appel late issue.

CO NC LUSION

We af f irm the district court ’ s judgmen t of conviction

.

__________________ ______________________ __ J eff Rose, Chief Justice Befor e Chief Justice Ro se, Justices Baker and Triana Affirmed Filed: A u gust 19, 2020
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