                                     NO. 07-01-0459-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL C

                                    DECEMBER 17, 2002

                            ______________________________


                         JULIUS FARMER SANDERS, APPELLANT

                                               V.

                             THE STATE OF TEXAS, APPELLEE


                          _________________________________

               FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                NO. 41,839-C; HONORABLE PATRICK A. PIRTLE, JUDGE

                           _______________________________

Before QUINN and REAVIS and JOHNSON, JJ.


       Upon a plea of not guilty, appellant was convicted by a jury of possession of marihuana

and punishment was assessed by a jury at two years confinement in a state jail facility and a

$10,000 fine. By two issues, appellant questions whether (1) the State is required to claim its

informer privilege in order to initiate a hearing pursuant to Rule of Evidence 508(b) and (2) the

trial court abused its discretion in denying his motion to require disclosure of the confidential
informant’s testimony where the State did not invoke its informer privilege pursuant to Rule

508(b). Based upon the rationale expressed herein, we affirm.


       Appellant does not challenge the sufficiency of the evidence; thus, only a brief recitation

of the facts is necessary. Pursuant to a search warrant based upon information from a credible

confidential informant, Officer David Ponce, a narcotics agent with the Amarillo Police

Department, executed a search warrant of a residence under appellant’s control. Ponce

discovered an “identifier,” i.e., an envelope addressed to appellant bearing the address of the

residence to be searched as well as marihuana. Expert testimony established that 195.01

grams were found.


       By his two issues, appellant asserts the State did not claim its informer privilege

pursuant to Rule 508(b) of the Texas Rules of Evidence and by his second issue contends the

trial court abused its discretion in denying his motion to require disclosure of the confidential

informer’s identity because the State did not invoke the informer’s privilege. Considering these

two issues together, we disagree. Rule 508(a) extends a qualified privilege to the United States

or a state or subdivision thereof to refuse to disclose the identity of a person who furnished

information or assisted in an investigation of a possible crime. Subsection (b) provides:


       (b) Who May Claim. The privilege may be claimed by an appropriate
       representative of the public entity to which the information was furnished, except
       the privilege shall not be allowed in criminal cases if the state objects.




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Although the State or prosecuting attorney may veto assertion of the privilege by another public

entity, the privilege afforded by Rule 508(a) extends to the United States or a state or

subdivision thereof. Further, the privilege may be claimed only by a representative of the public

entity which received the information, in this instance, Officer Ponce as a representative of the

Amarillo Police Department. See 2A Steven Goode, Olin Guy W ellborn, III, and M. Michael

Sharlot, Courtroom Handbook on Texas Evidence 352 (Texas Practice 2002).


       Rule 508 does not prescribe a specific procedure for assertion of the privilege. Indeed,

it does not require that the privilege be claimed in writing nor by motion for protective order,

motion in limine, nor otherwise, and appellant cites no authority setting forth a specific

procedure for asserting the privilege. At the pretrial hearing on appellant’s motion to disclose

the confidential informant’s identity, Officer Ponce, as “representative of the public entity to

which the information was furnished,” testified that he did not want the identity of his confidential

informant disclosed for safety reasons. The search warrant also recited, “[t]he affiant [Officer

Ponce] does not wish to reveal the identity of the confidential informant for the protection and

safety of the confidential informant.” Based on our review of the record, we conclude Officer

Ponce sufficiently claimed the informer privilege and thus, the trial court did not abuse its

discretion in denying appellant’s motion to disclose the identity of the informer. Appellant’s first

and second issues are overruled.


       Accordingly, the judgment of the trial court is affirmed.




                                                 3
                  Don H. Reavis
                    Justice


Do not publish.




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