                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-12-00446-CR


                      DADRIAN TERRELL THOMAS, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 242nd District Court
                                    Hale County, Texas
             Trial Court No. B19086-1203, Honorable Edward Lee Self, Presiding

                                    November 4, 2013

                                        OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Dadrian Terrell Thomas appeals from a judgment through which he was

convicted of delivering a controlled substance. His three issues arise from his motion to

require the disclosure of the identity of a purported confidential informant. The trial

court denied the motion. Thereafter, appellant pled guilty to the charge levied against

him, which plea led to his conviction. We affirm the judgment.

       The State has a privilege to refuse to disclose the identity of a person who has

furnished information relating to or assisting in an investigation of a possible violation of

the law to a law enforcement officer. TEX. R. EVID. 508(a). But exceptions to the rule
exist. That in play here requires disclosure if “it appears . . . that an informer may be

able to give testimony necessary to a fair determination of a material issue on . . . guilt

or innocence in a criminal case . . . . Id. 508(c)(2). The burden lies with the defendant

to satisfy the terms of the exception, though, and this obligates him to establish that the

information is necessary and significant. Ford v. State, 179 S.W.3d 203, 210 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref‟d).       In other words, the defendant must

illustrate the presence of a reasonable probability that the informer may give testimony

necessary to a determination of guilt or innocence. State v. Sotelo, 164 S.W.3d 759,

761 (Tex. App.—Corpus Christi 2005, no pet.). The proffer of mere speculation or

conjecture is not enough, however. Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim.

App. 1991); Morrel v. State, No. 07-07-00449-CR, 2009 Tex. App. LEXIS 2573, at *5-6

(Tex. App.—Amarillo, April 15, 2009, no pet.) (not designated for publication).

       Next, the decision about whether to order the disclosure of the informant‟s

identity under Rule 508 lies within the trial court‟s discretion. Morrel v. State, supra

(stating that the court of appeals “review[s] the trial court's ruling on a confidential-

informant motion for abuse of discretion”). Unless the ruling is “so clearly wrong as to

lie outside the zone of reasonable disagreement,” it must be affirmed. Id. And, the

decision so falls outside that zone when it is arbitrary, unreasonable, or fails to comport

with any guiding rules or principles. Id. We cannot simply substitute our judgment for

that of the trial court. Id.

       Of further note is that the sum and substance of appellant‟s complaint revolves

around an entrapment defense. That is, he wanted to question the informant or garner

information about him to determine the viability of a potential claim of entrapment. The

latter is a defense found in section 8.06 of the Texas Penal Code. TEX. PENAL CODE

                                             2
ANN. § 8.06(a) (West 2011). Its elements consist of proof that the 1) accused engaged

in the conduct charged, 2) he was induced to do so by a law enforcement agent, and 3)

the agent used persuasion or other means likely to cause persons to commit the

offense. Id.; Hernandez v. State, 161 S.W.3d 491, 497 (Tex. Crim. App. 2005). Yet,

conduct merely affording a person the opportunity to commit an offense does not

constitute entrapment. TEX. PENAL CODE ANN. § 8.06(a) (West 2011).

      The evidence of record at bar indicates that the informant did not participate in

the drug transaction between appellant and the officer. Rather, the officer directed the

informant to contact appellant about the officer‟s interest in acquiring drugs.       The

informant did so. This led appellant to call the officer. At that point, appellant uttered

that he was undertaking the contact at the behest of the officer‟s “boy.” Subsequent

conversations between appellant and the officer (and in which the informant did not

participate) resulted in a sale between those two individuals, and it was that sale for

which appellant was arrested and prosecuted.

      We acknowledge that the exceptions to Rule 508 have been invoked by

defendants attempting to pursue an entrapment defense.            Indeed, such was the

situation in Bodin v. State. There, the record contained the following evidence:

             Officer Virgil Price of the Houston Police Department testified he
      and his partner, Officer Mitchell, put together a controlled buy of narcotics
      on September 7, 1988, after receiving information from a confidential
      informant that appellant was engaged in drug trafficking at appellant's
      residence . . . . Officers Price and Mitchell gave their confidential
      informant twenty-five dollars and watched him go inside appellant's
      apartment. Price stated the informant emerged four or five minutes later
      with the methamphetamine just purchased from appellant. The informant
      provided Price with a description of appellant. Price then prepared an
      affidavit and search warrant which was later approved and signed by
      Judge Kolenda.

                                        *       *     *

                                            3
              Officers found the methamphetamine, which formed the basis of
       this conviction, in a key box when they executed the search warrant.

                                         *       *      *

               Appellant [testified at trial] . . . that a man named James brought
       drugs into his apartment on September 7, 1988. James "did some drugs"
       when appellant was in the bedroom, then left fifteen minutes later.
       Appellant noticed a key box sitting on his kitchen table, and assumed
       James had left the box. Appellant put the box in his pocket, meaning to
       later return it to James when the police entered the apartment with the
       search warrant. Officers found the methamphetamine in the key box.

       Bodin v. State, 807 S.W.2d at 315.               Bodin sought the disclosure of the

informant's identity to see if it was James. Id. at 316. He alleged that if the two were

one and the same, "then [James‟] presence at the apartment before appellant's arrest

would be material evidence regarding a possible entrapment defense." Id. (Emphasis

added.) The Court of Criminal Appeals agreed. "Based on these facts," according to

that court, ". . . appellant made a plausible showing that the informer could give

testimony necessary to a fair determination of guilt."            Id. at 318.     The court also

observed that the "informer had information material to appellant's possession of drugs,

and could have had information relevant to possible entrapment." Id. So, the trial court

was obligated to conduct "an in camera hearing to determine whether the informer

could, in fact, supply such information."1 Id.

       Unlike the situation in Bodin, though, appellant at bar did not testify personally.

Nor did he submit evidence suggesting that the drugs he possessed were not his, that

the informant could know to whom the drugs actually belonged, or that he (appellant)




       1
           It should be noted that the Court of Criminal Appeals did not order the disclosure of the
informant's identity to Bodin. Rather, it held that a sufficient showing was made to warrant further
investigation by the trial court via an in camera hearing.

                                                 4
was an unwilling participant in the transaction with the officer.2 In short, appellant did

not make a plausible showing the informant could give necessary testimony.

        What we have instead are circumstances more akin to those in Avalos v. State,

No. 14-06-0969-CR, 2008 Tex. App. LEXIS 3539 (Tex. App.—Houston [14th Dist.] May

15, 2008, no pet.) (not designated for publication). There, the appellant also sought the

disclosure of an informant's identity to develop an entrapment defense. To that end, he

presented evidence via an affidavit describing how “Miguel, a man characterized by

appellant . . . as „a casual acquaintance,‟ made repeated phone calls requesting that

appellant sell him a large amount of cocaine.”3 Id. at *8-9. In concluding that this was

insufficient evidence to warrant an in camera hearing, the appellate court reiterated “that

a series of phone calls from a mere acquaintance is „so unlikely to induce a person not

already so disposed to commit a criminal offense as to not even raise the issue of

entrapment.‟” Id. at *10; accord Craver v. State, 628 S.W.2d 155, 157-58 (Tex. App.—

Houston [14th Dist.] 1982, pet. ref'd) (finding a police agent's repeated calls over a two-

week period, made day and night, at home and work, and causing the defendant to

argue with his fiance over the frequency of the calls was insufficient to raise the issue of

entrapment).

        Assuming arguendo that the informant at bar was an agent of the State, we have

before us evidence of only one phone call between the informant and appellant. Other

evidence indicates that though this one call induced appellant to contact the officer, the


        2
          Appellant hinted that the informant may have supplied him the drugs but cites us to no evidence
of record supporting that insinuation. Nor did our review of the record uncover any.
        3
          Unlike the accused in Avalos, the appellant at bar did not provide the trial court with his affidavit
in support of his effort to force the disclosure of the informant’s identity. A similar procedure, that is, the
execution of an affidavit by the accused, was used in Brice v. State, No. 13-03-00412-CR, 2005 Tex. App.
LEXIS 7971, at *4 (Tex. App.—Corpus Christi September 26, 2005, pet. ref’d) (not designated for
publication). The trial court viewed the affidavit in camera and then had it sealed and made part of the
appellate record.
                                                        5
informant played no further role in the enterprise; the latter was pursued via the sole

efforts of appellant and the officer.     If a series of calls is not enough evidence of

entrapment per Avalos, one phone call surely cannot be, given the dearth of other

evidence illustrating undue influence. So, for that reason also, the trial court's decision

at bar fell within the zone of reasonable disagreement and constituted a legitimate

exercise of discretion.

       To the extent appellant also seeks reversal by contending that his constitutional

right to confront the informant and the officer was denied him, we say the following.

First, he conceded at oral argument that the information sought from the officer was

allegedly pertinent to establishing that the informant was an agent of the State for

purposes of entrapment. Yet, even if we were to assume that questioning the officer

would have served that end, there still remains no evidence of improper inducement.

So, we conclude, beyond reasonable doubt, that the trial court‟s decision to prohibit him

from questioning the officer about his ties with the informant did not harm appellant.

       Second, as for being denied his purported constitutional right to confront and

cross-examine the informant, the latter was not called to testify below. This is of import

because an accused is not denied his right to confront someone when that person does

not appear and testify in person or via other means. Chavez v. State, 508 S.W.2d 384,

386 (Tex. Crim. App. 1974); accord Shelvin v. State, 884 S.W.2d 874, 877 (Tex. App.—

Austin, pet. ref‟d) (holding the same).

       Accordingly, we overrule the issues before us and affirm the judgment.



                                                        Brian Quinn
                                                        Chief Justice

Publish.
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