      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-18-00194-CR



                                  The State of Texas, Appellant

                                                  v.

                                    Reynaldo Lerma, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
         NO. CR-15-0598, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               After the State of Texas failed to disclose the identity of a confidential informant, the

trial court granted appellee Reynaldo Lerma’s motion to dismiss the capital murder charges against

him pursuant to Texas Rule of Evidence 508. See Tex. R. Evid. 508(c)(2)(A)(i); see also Tex. Penal

Code § 19.03 (describing offense of capital murder). The State appeals from that order. Because

we conclude that Lerma failed to meet his burden of showing that a reasonable probability exists that

the informer could give testimony necessary to a fair determination of his guilt or innocence, we

will reverse the trial court’s order and remand this cause to the trial court for further proceedings.


                                         BACKGROUND

               Lerma was indicted for capital murder in connection with the death of Joel Espino.

The State’s theory of the case, as it emerges from the record before us, is that Espino and his

roommate Andrew Alejandro were narcotics dealers. Lerma and several co-defendants allegedly
approached the residence where Espino and Alejandro lived and attempted to rob them. During the

attempted robbery, Alejandro shot and killed Espino and also shot and wounded two of Lerma’s

co-defendants. Alejandro was the only person who discharged a firearm during the encounter. The

State charged Lerma and several co-defendants with capital murder and one co-defendant with

robbery. The record indicates that the State has not charged Alejandro in connection with this event.

               Before trial, the Defense learned that a confidential informant (CI) working with the

Hays County Narcotics Task Force (the Task Force) made a controlled buy of marihuana from

Espino about three months prior to the shooting. The Defense further learned that Espino was not

charged after the buy and that the purchased drugs were ordered destroyed. At a pretrial hearing in

August 2016, the Defense informed the trial court, “We believe [Espino] was acting as a CI and we

would like to have any information that pertains to that.” The following exchange then occurred:


       Prosecutor: I don’t think we can be required to conduct—or to provide them with
       discovery that is basically just a fishing expedition to see whether or not there might
       be something there.

       Defense: Judge, if he was snitching on his roommate and the roommate shot him in
       the head, I think that is relevant.

       The Court: I do, too.

       ***

       The Court: I will just put a gag order on the defense, but he’s going to have to get to
       see anything that’s been generated, any debriefing, anything like that the defense
       team gets to look at it because they—they would know what might be exculpatory.
       I would not.




                                                 2
               At another pretrial hearing in May 2017, the Defense proposed that Alejandro may

have intentionally shot and killed his roommate, Espino, because he had found out that Espino was

working as a CI. The following exchange occurred:


       The Court: Sounds like it could be exculpatory. What says the state?

       Prosecutor: It’s pure speculation, Your Honor.

       The Court: It is. But you have to look at it or I have to look at it to make sure that it
       is speculation.


The prosecutor then informed the court that “Espino was never developed as a confidential

informant” and that there was “no further investigation of Espino.” The prosecutor argued that

“what [defense] counsel is speculating is that they [the Task Force] are lying to me.” After further

discussion, the following exchange occurred:


       The Court: Affidavits, or something of that nature, may do, but after what happened
       in Williamson County a couple years back, I am not going to be anywhere near
       anything close to that. I don’t give a damn about a confidential informant. Sorry.

       Prosecutor: The law—the law—

       The Court: The truth shall set you free and I’m going to order it all be—

       Prosecutor: The law makes that privilege[d], Your Honor.

       The Court: Well, it may be privileged, but I don’t—privileged be damn[ed] if it means
       that the defense lawyer can’t get exculpatory evidence in a capital murder case.


Near the conclusion of the hearing, the trial court told the Defense, “Prepare whatever order you

need. You are going to get to look at it.”



                                                  3
               At a hearing in June 2017, the trial court clarified that it was finding that the CI could

give testimony necessary to a fair determination of guilt or innocence. The prosecutor stated, “Note

our exception, please, Your Honor.” The trial court responded, “Except all you want, Counselor.

You know where the appellate court is.”

               The trial court signed an order requiring the State to allow the Defense to view the

entire case file, including the CI file. The State filed a petition for writ of mandamus in this Court,

arguing that the trial court was violating Rule 508 by ordering the State to produce this information

without providing the State an in camera hearing. See Tex. R. Evid. 508(c)(2)(C)(i) (“If it appears

that an informer may be able to give the testimony required to invoke this exception and the public

entity claims the privilege, the court must give the public entity an opportunity to show in camera

facts relevant to determining whether this exception is met.”). This Court denied the petition. The

State then filed a petition for writ of mandamus in the Texas Court of Criminal Appeals. However,

the parties and the trial court reached an agreement that the State would withdraw its mandamus

petition and the trial court would hold an in camera hearing as the State requested.

               The State withdrew its petition, and the trial court held the in camera hearing in

July 2017. At the hearing, the prosecutor explained that he was originally under the impression

that the Task Force would be able to identify the CI but that he had subsequently learned that the

Task Force did not know the CI’s identity because they had failed to document it. The following

exchange then occurred:


       The Court: You believe this man? You believe this is true? You believe they are
       telling you the truth or are they bullshitting you?



                                                   4
        Prosecutor: I believe they are telling me the truth.

        The Court: Load of shit, for the record, that’s what it sounds like.

        Prosecutor: I told them the judge is going to want to talk to you about this. You are
        going to have to understand this sounds like—

        The Court: Sounds horrible.


The trial court later commented, “So difficult to believe, Wesley.1 I am sorry. Sounds like a total

crock.” The court eventually agreed to hear testimony from members of the Task Force, stating

the following:


        I will listen to your officer’s fairy tale. I am going to tell you right now, I am going
        to stay with my ruling and whatever you got needs to be shown to the Erwins,2
        meaning their lawyers, not the client, and if you determine that it is exculpatory, you
        show me what you got and we will discuss it at that point. But you need to know
        everything that these officers do know. It sounds like it is not much.


                  Before the testimony began, the following exchange occurred concerning the

Task Force’s credibility:


        The Court: Their credibility is a little bit suspect here. I am going to make that
        ruling. I am going to say that right on the record.

        Prosecutor: I understand that if the—if the theory is going to be we can put whatever
        words in narcotics’ mouth and use that to justify whatever ruling we are going to ask
        the court to make, because whatever denials they make, we are not going to believe—

        The Court: Going to get called and grilled in front of the fact finder.

        1
             That is, Wesley H. Mau, the Hays County Criminal District Attorney, who represented
the State.
        2
             Lerma was represented by the Erwin Law Firm, LLP.

                                                   5
       Prosecutor: Any speculation that the defense counsel wants to engage in, they can
       support that by simply saying that that’s been denied from any witness that—who
       might know about it because we don’t trust the witness. That’s not the standard.
       You can’t offer evidence.

       ***

       The Court: This is a capital murder case where they did a control[led] buy and it is
       all missing. And they didn’t follow the rules and now they are telling us they don’t
       know who the informant is.

       Prosecutor: Right.

       The Court: I have got to tell you that my bullshit meter is pegging out right about now.


               Before hearing testimony, the trial court also made the following comments:


       After the Michael Morton Act, I can’t imagine anybody is going to stop them from
       calling anybody they want to and going down any bunny trail in the world that they
       want to.

       ***

       This stinks to high heaven and the fact finder considering capital murder should
       know how bad it stinks.


               The trial court then heard testimony from Detective Teddy Grabarkewitz, who worked

for the Hays County Sheriff’s Office and the Task Force. Detective Grabarkewitz testified that he

was present during the controlled buy from Espino and that he saw the CI. He further testified that

the Task Force was “not sure who the informant was because it was two years ago and we failed to

document a CI—confidential informant on the individual.” Detective Grabarkewitz testified that

he remembered that the CI was male but could not recall his race or ethnicity. He also admitted to

the court that the Task Force failed to document the CI as required by Task Force rules and that he

                                                  6
was reprimanded by receiving “a verbal counsel by Sergeant Wade Parham.” In addition, Detective

Grabarkewitz testified that no charges were filed against Espino after the controlled buy. He further

stated that he had a copy of a motion to destroy the marihuana used in the buy. He explained, “We

will put in automatically to destroy the evidence on qualifying informant buys. We don’t keep those.”

               After learning that Detective Grabarkewitz did not “know anything about the

facts of this capital murder,” the trial court presented “a thumbnail view” of the case and of the

Defense’s concerns regarding the CI. The trial court explained the theory that Espino’s roommate

“got information about your controlled buy and feared that Espino was going to turn on him” and

“used this fracas [the attempted robbery] as an opportunity to get rid of him so that it would never

happen.” The following exchange occurred:


       The Court: Do you think there is any—I mean, you are a narcotics officer here for
       many years. Do you think that is very plausible?

       Detective Grabarkewitz: Well, we never used Espino as an informant. Somebody
       bought from Espino.

       The Court: See, he wouldn’t know that. All he’d need to know is that he made a
       controlled buy from the narcs.

       Detective Grabarkewitz: Is it possible that somebody found out that we did a
       controlled buy?

       The Court: Unless the informant, if he knew Joel [Espino], chances are pretty good
       he could have known the two roommates and he might have told him.

       Detective Grabarkewitz: Anything is possible, sir.

       ***




                                                 7
       Detective Grabarkewitz: So—yes, sir. And so anything is possible. I mean, I don’t
       know for sure one way or the other, but anything is possible, sir. Anything is possible.

       ***

       The Court: Well, anything else you think would—what—my duty is to make sure if
       there is any evidence out there . . . any of you that could indicate that Mr. Lerma is
       not the guilty party here, he may have been a dupe. Do you know anything that
       would—anything that might be evidence of that?

       Detective Grabarkewitz: No, sir, I don’t.


               The trial court next heard testimony from Sergeant Wade Parham, who commanded

the Task Force. Sergeant Parham admitted that the Task Force did not follow their rules requiring

the documenting of the CI and that a detective received a verbal reprimand because of this failure.

Sergeant Parham also testified that the Task Force told the District Attorney that they did not know

the CI’s identity “[s]hortly after we received subpoena on the hearing, I believe I—I am wanting

to say the hearing earlier this year” and that this occurred “[m]any months ago.”

               The trial court then questioned Sergeant Parham about an affidavit entered into

evidence in which Sergeant Parham stated, “As an appropriate representative of the [Task Force]

and the San Marcos Police Department, the public entity to which the informer furnished the

information, I claim the privilege afforded by Texas Rules of Evidence, Rule 508, to refuse to

disclose the person’s identity.”3 The court asked him how he could “assert a privilege if you don’t


       3
         In the affidavit, which bears a different cause number and was apparently filed in a case
involving one of Lerma’s co-defendants, Sergeant Parham also averred the following:

       The operation was for intelligence gathering purposes only and Espino was never
       arrested or charged with the offense. Espino was never interviewed, debriefed or
       developed as a confidential informant by [the Task Force]. In accordance with

                                                   8
know who the informant is.” Sergeant Parham responded, “At this time, Your Honor, I don’t recall

if I was aware that we didn’t actually have an informant file on this person at that time.”

               The following exchange then occurred when the trial court questioned

Sergeant Parham about the theory that Alejandro may have intentionally killed Espino:


       The Court: Well, the defense team in this case are concerned that somebody may
       have informed the roommate who shot Mr. Espino . . . twice, once in the head and
       once in the hip. Did—and did shoot two other people too, but not fatally. Somebody
       may have told him about this controlled buy and he may have been very suspicious
       and paranoid about his roommate and may have used this particular affray as an
       opportunity to dispose of the problem. Do you see how that would be exculpatory?

       Sergeant Parham: Yes, Your Honor.

       The Court: And we can’t tell because we don’t know who the informant is. But
       Detective Grabarkewitz indicated that the informant knew Espino, named him, and
       went to the trailer on his own information he had. And since Espino was roommates
       with the shooter and one other person, he could well have known them too and
       could have at some point told him about this controlled buy and that could have been
       the motive for this roommate to shoot Mr. Espino.

       Sergeant Parham: Yes.

       The Court: That’s very troubling. And you can understand that your officer’s failure
       to follow the rules has negated the possibility of finding exculpatory evidence and it
       may require dismissal of the case. I don’t know. We are going to look at the case
       law on it and see what has to happen. This is very serious.


               Sergeant Parham then testified, “Well, we have scoured all records that we have . . . .

We have gone back looking at—through our records months previously to attempt to find it. And



       departmental policy regarding the disposition and retention of non-evidentiary
       property or contraband, the marijuana purchased from Espino in March 2015 was
       destroyed. In the months to follow, no [Task Force] officers conducted any further
       investigation of Espino or surveillance of his residence . . . .

                                                 9
that, and phone records of the detectives, we have come up with nothing, Your Honor.” He also

testified that he was “certain” that “the confidential informant that was used was not one of the

defendants in the capital murder.” Sergeant Parham further testified, “And Joel Espino, after that

one informant did the controlled buy from him, that informant broke contact with us. Never called

us back. Never returned phone calls. And we performed no further investigation on Espino.” The

court then stated, “That doesn’t mean that his roommate might not have feared that . . . justifiably.”

Sergeant Parham responded, “That’s right.”

               The final witness from which the trial court heard testimony was Officer Lenny

Martinez. Officer Martinez testified that Espino was shot in the head and the hip by his roommate.

Officer Martinez further testified that he was present during the controlled buy from Espino but that

he did not know the CI’s identity. He testified that the CI was a “white male,” “fairly thin,” and was

“a little taller” than Officer Martinez, who was “five-eight.” Officer Martinez also admitted that the

Task Force had failed to follow its rules concerning documenting the CI. When asked when he first

told the District Attorney that he did not know the identity of the CI, Officer Martinez answered,

“Here recently when the subpoena came out to appear at this hearing.” After again explaining the

theory that Alejandro killed Espino after learning of the controlled buy, the court asked, “So, see,

I mean, that could be evidence of innocence at least to the murder?” Officer Martinez responded,

“Yes, sir.” The following exchange then occurred:


       The Court: Do you know of any evidence about any of that through your work as a
       narcotics officer that might substantiate or might be evidence of that?

       Officer Martinez: No, sir, I don’t. I know Mr. Espino wasn’t charged with any
       drug-related offenses during my—

                                                 10
       The Court: Which is unusual, isn’t it? Why would you make a controlled buy from
       somebody and never follow up on it?

       Officer Martinez: And that’s what I think was maybe going to happen, was that there
       was going to be some additional follow-up investigation taking place involving Mr.
       Espino, but I wasn’t in narcotics very much longer. I was in narcotics approximately
       ten months before I ended up leaving the division and returning to the major crimes
       division with the—

       ***

       Officer Martinez: And as far as I know, Mr. Espino wasn’t considered or even wasn’t
       under any contract saying that Mr. Espino was a criminal informant for the task force.


               After hearing testimony, the trial court stated, “The actual shooter who may have

had a motive. And we can’t . . . we can’t investigate that because the task force didn’t follow the

rules . . . . I think that is all exculpatory.” The court later declared, “Well, I do find there is—a

reasonable probability exists that the informant could give testimony if we knew who he was.”

               In November 2017, the Defense filed a motion to dismiss pursuant to Rule 508, and

the trial court held a hearing on the motion on December 4. At the hearing, the trial court reiterated

its finding: “It’s very—what I—my actual finding is and my belief is that it’s very possible that if

they had disclosed the name of this informant, he or she might have been able to—might have had

access to exculpatory evidence that you would be entitled to. And you’re being denied it by either

their incompetence or their . . . for whatever reason.” On December 14, the State provided an

email to the Defense. The email was dated August 19, 2016, and was addressed from “Sergeant

Wade Parham” to “Wes Mau.” In the email, Sergeant Parham states, “My report on the homicide,

filed two weeks after the shooting, clearly stated that Espino was once a suspect and target of an

investigation. The investigation was suspended and Espino was never arrested or charged with a

                                                 11
drug offense. Espino was never an informant.” The email continued, “And just in case he asks, I’m

not going to reveal which informant made the purchase from Espino . . . . It wasn’t anyone involved

in the homicide.” On the following day, December 15, the Defense filed an amended motion to

dismiss pursuant to Rule 508.

               In March 2018, the trial court signed an order granting Lerma’s motion to dismiss

pursuant to Rule 508. The court subsequently issued findings of fact and conclusions of law, which

included, among other things, the following:


       •       Joel Espino, the deceased, was shot multiple times by a single, uncharged
               actor, Andrew Alejandro. Mr. Espino and Mr. [Alejandro] lived together and
               sold narcotics from the location where the charged offenses occurred.

       •       On August 19, 2016, Wade Parham, Commander of the [Task Force] emailed
               the District Attorney and acknowledged that he knew the identity of the CI,
               but would not disclose the identity to the defense. This email communication
               was not provided to the Court and to the Defense until December 14, 2017,
               after the in camera hearing held by this Court.

       •       This Court held an in camera hearing on July 27, 2017, and after interviewing
               two members of the [Task Force] and the Commander of the [Task Force],
               made the determination under TRE 508 that a reasonable probability exists
               that the confidential informer could give testimony to a fair determination of
               guilt or innocence in cause number CR-15-0598.

       •       Teddy Grabarkewitz testified that it was very possible that the CI knew the
               deceased’s roommates as well, including Andrew Alejandro, the only person
               who fired shots the evening of the alleged offense, and who shot the deceased
               multiple times.

       •       Teddy Grabarkewitz further testified that the CI could have informed Andrew
               Alejandro, the deceased’ s roommate, of the controlled buy that occurred
               between the deceased and the CI.

       •       Wade Parham testified that he understood how the identity of the CI could
               potentially be exculpatory in Mr. Lerma’s case.

                                                12
       •       Lenny Martinez testified that the identity of the informant could provide
               evidence proving that Mr. Lerma was innocent of murder.

       •       Ultimately, all members of the [Task Force] testified during the in camera
               hearing that they do not know the identity of the CI; the Court finds this
               testimony to lack credibility, and to be inconsistent with other testimony
               and exhibits in the case. After the State claimed the CI privilege and sought
               extraordinary relief up to The Court of Criminal Appeals to protect the
               identity of the CI (known only to the state), the State now claims they do not
               know the identity of the CI. The State’s inconsistent position of protecting
               a privileged CI, and then claiming to not know the identity of the CI casts
               doubt on the reliability and credibility of the States’ witnesses.

       •       The fact that Commander Parham states in this email correspondence that the
               CI is not anyone involved in the murder, indicates that he must have reviewed
               some file or some information before sending the email to the District
               Attorney, as Mr. Lerma’s case is not one of Commander Parham’s cases, and
               not a case that he had familiarity with at the date of the email.

       •       The Court has taken into consideration when analyzing this email, the fact
               that the State exhausted every legal remedy possible to prevent the Defense
               from knowing the identity of the CI, combined with the fact that the testimony
               of all the [Task Force] Officers lacked credibility. Further, common sense
               dictates that if it truly were the case that the identity of the informant was
               unknown, that Commander Parham would have simply disclosed this
               information August 19, 2016.


This appeal followed.


                    APPLICABLE LAW AND STANDARD OF REVIEW

               Under Rule 508, the State and its subdivisions have a “privilege to refuse to disclose

a person’s identity” if “the person has furnished information to a law enforcement officer” and

“the information relates to or assists in the investigation.” Tex. R. Evid. 508(a); see Boyd v. State,

No. 04-17-00193-CR, 2018 WL 3129463, at *7 (Tex. App.—San Antonio June 27, 2018, no pet.)

(mem. op., not designated for publication); Davis v. State, No. 03-13-00456-CR, 2014 WL 5107129,

                                                 13
at *4 (Tex. App.—Austin Oct. 8, 2014, no pet.) (mem. op., not designated for publication). “The

privilege may be claimed by an appropriate representative of the public entity to which the informer

furnished the information.” Tex. R. Evid. 508(b). “[T]his privilege does not apply if the court finds

a reasonable probability exists that the informer can give testimony necessary to a fair determination

of guilt or innocence.” Id. R. 508(c)(2)(A). “If the court so finds and the public entity elects not to

disclose the informer’s identity . . . on the defendant’s motion, the court must dismiss the charges

to which the testimony would relate . . . .” Id. R. 508(c)(2)(A)(i). Before dismissing the case, however,

“the court must give the public entity an opportunity to show in camera facts relevant to determining

whether this exception is met.” Id. R. 508(c)(2)(C)(i).

                “The defendant has the threshold burden of demonstrating that identity must be

disclosed.” Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991); see Boyd, 2018 WL

3129463, at *7 (“In seeking disclosure of an informant’s identity under that exception, the defendant

bears the threshold burden of establishing a reasonable probability that the informant’s testimony

would be necessary to a fair determination of guilt or innocence.”); accord Davis, 2014 WL 5107129,

at *4 (citing Sanchez v. State, 98 S.W.3d 349, 355 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d)).

“Since the defendant may not actually know the nature of the informer’s testimony, however, he or

she should only be required to make a plausible showing of how the informer’s information may be

important.” Bodin, 807 S.W.2d at 318; see Haggerty v. State, 429 S.W.3d 1, 8 (Tex. App.—Houston

[14th Dist.] 2013, pet. ref’d) (“Appellant must make a plausible showing of how the informant’s

information may be important.”). Nevertheless, “mere conjecture or speculation” is not sufficient

to satisfy the defendant’s burden to show “that the informer’s identity must be disclosed.” Bodin,



                                                   14
807 S.W.2d at 318; see Boyd, 2018 WL 3129463, at *7 (“To meet this burden, the defendant must

show the informant’s testimony would significantly aid his defense; mere conjecture or speculation

is insufficient, as is merely filing a motion for disclosure.”); Haggerty, 429 S.W.3d at 8 (“Before a

court orders the identity of the informant to be revealed, the informant’s potential testimony must

be shown to significantly aid the defendant; mere conjecture about possible relevance is insufficient

to meet the threshold burden.”). We review the trial court’s ruling on Lerma’s motion to dismiss for

an abuse of discretion. See Boyd, 2018 WL 3129463, at *7; Davis, 2014 WL 5107129, at *5; State

v. Sotelo, 164 S.W.3d 759, 763 (Tex. App.—Corpus Christi 2005, no pet.); Sanchez, 98 S.W.3d at 356.


                                           DISCUSSION

               In its sole appellate issue, the State contends that the trial court abused its discretion

in granting Lerma’s motion to dismiss pursuant to Rule 508 because: (1) Lerma offered no evidence

to establish that a reasonable probability exists that the informer could give testimony necessary to

a fair determination of his guilt or innocence; (2) the evidence that the trial court received at the

in camera hearing shows only that the CI purchased marihuana from the deceased several months

earlier but demonstrates no other link between the controlled buy and the capital murder; and

(3) the evidence does not show “an ‘election’ by police to withhold disclosure” but rather that “the

informant’s identity [wa]s no longer known at the time of the Rule 508 hearing.” Because they are

dispositive, we will address the State’s first two arguments.

               Even if we defer to the trial court’s finding that the Task Force officers who testified

at the hearing were untruthful, we cannot conclude, based on the record before us, that Lerma

met his initial burden of showing that a reasonable probability exists that the informer could give

                                                  15
testimony necessary to a fair determination of his guilt or innocence. The record before us indicates

that the officers merely affirmed that the hypothetical the trial court proposed, in which Alejandro

intentionally killed Espino, was “possible.” The officers did not testify that the hypothetical situation

was very likely, more likely than not, or even reasonably probable. Nor did they testify that they

believed the hypothetical theory to be true or that they had any reason to believe that it was true.

                For example, when the trial court asked Detective Grabarkewitz whether it was

possible “that somebody found out that we did a controlled buy,” the detective responded that

“anything is possible.” When the court then asked whether he knew “anything that might be

evidence of that,” Detective Grabarkewitz answered, “No, sir, I don’t.” Similarly, when the trial

court asked Commander Parham whether he saw how the court’s hypothetical could be exculpatory,

he responded, “Yes, Your Honor.” However, he went on to emphasize that the CI was not involved

in the alleged capital murder, that the CI had no further contact with the Task Force after the

controlled buy from Espino, and that Espino never became an informer for the Task Force. Finally,

although Officer Martinez affirmed that the hypothetical situation could be exculpatory, when the

court asked him whether he knew “of any evidence about any of that . . . that might substantiate or

might be evidence of that,” Officer Martinez answered, “No, sir, I don’t.” Therefore, no witness

testified that he was aware of any evidence to support the theory that Alejandro intentionally killed

Espino, and two of the witnesses explicitly denied being aware of any such evidence. In addition,

the record before us does not contain any additional evidence supporting the hypothetical link

between the CI and the capital murder. There is no evidence that the CI was present during the

alleged attempted robbery or shooting, that he had ever had any interaction with any of the people



                                                   16
involved other than the one controlled buy from Espino, or that he was connected to the alleged

capital murder in any way.

               Lerma bore the burden of presenting evidence that there was a reasonable probability

that the CI could give testimony necessary to a fair determination of his guilt or innocence. We

conclude that the record is devoid of such evidence. Although the Defense and the trial court

constructed a hypothetical situation in which Alejandro intentionally killed Espino, neither the

Defense nor the State presented any evidence that the hypothetical situation was actually true—the

officers merely affirmed that it was possible.4 Thus, the allegedly exculpatory theory is “mere

conjecture or supposition about possible relevancy” and does not support the trial court’s order.

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

               Because the record before us contains no evidence indicating the materiality of the

CI’s identity, we conclude that the trial court abused its discretion in granting Lerma’s motion to

dismiss. See Tex. R. Evid. 508(c)(2)(A) (requiring court to find that “a reasonable probability exists

that the informer can give testimony necessary to a fair determination of guilt or innocence” before

dismissing case under Rule 508); Sotelo, 164 S.W.3d at 762–63 (reversing the trial court’s order

dismissing the cases against the defendant because “the evidence does not show that the informant




       4
          Moreover, it appears from the record before us that the trial court merely assumed that
evidence indicating that Alejandro killed Espino intentionally rather than accidentally would be
exculpatory. Neither the trial court, nor the Defense, nor any witness ever explained how Alejandro’s
intent could affect the State’s ability to prove the elements of capital murder as alleged in Lerma’s
indictment.

                                                 17
may have been able to give testimony necessary to a fair determination of the issues of guilt or

innocence”). Accordingly, we sustain the State’s sole appellate issue.5


                                            CONCLUSION

                We reverse the trial court’s order granting Lerma’s motion to dismiss and remand

this cause to the trial court for further proceedings consistent with this opinion.



                                                 __________________________________________

                                                 Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Reversed and Remanded

Filed: October 25, 2018

Do Not Publish




        5
          Lerma contends on appeal that the State waived any complaint it may have about the trial
court’s finding that a reasonable probability exists that the informer can give testimony necessary
to a fair determination of guilt or innocence because the State failed to object to this finding.
However, Lerma cites no authority indicating that the State was required to object to this specific
finding apart from appealing the court’s dismissal order. Moreover, even assuming, without
deciding, that the State was required to object to this finding, we conclude that it did so with
sufficient specificity to alert the trial court to its complaint. At the June 2017 hearing, the trial court
found “that the confidential informant can give testimony necessary for guilt or innocence.” The
prosecutor stated, “Note our exception, please, Your Honor.” The trial court responded, “Except all
you want, Counselor. You know where the appellate court is.”

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