
Opinion issued September 2, 2004









     





In The
Court of Appeals
For The
First District of Texas




NOS. 01-03-00180-CR
          01-03-00181-CR




THE STATE OF TEXAS, Appellant

V.

RUTH MOLINA SUSTAITA, Appellee




On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause Nos. 41,932 and 41,933




OPINION ON MOTION FOR REHEARING
          Appellee, Ruth Molina Sustaita, has filed a motion for rehearing, which we
DENY.  However, we withdraw our opinion of April 29, 2004, and issue this opinion
in its stead.  Our judgments of April 29, 2004, remain unchanged.
          The State brings two interlocutory appeals pursuant to article 44 .01(a)(1) of
the Texas Code of Criminal Procedure.  The sole issue on appeal is whether the trial
court erred by dismissing the indictments, with prejudice, pursuant to Texas Rule of
Evidence 508(c)(2).  We reverse and remand.
BACKGROUND
          In two indictments, appellee, Ruth Molina Sustaita, was charged with
possession of at least 400 grams of cocaine and investing funds to further the
commission of the offense of possession of at least 400 grams of a controlled
substance.  On April 30, 2002, Sustaita filed a motion to disclose the identity of the
State’s confidential informer.  On July 5, 2002, the trial court granted Sustaita’s
motion and ordered the State to disclose the identity of the confidential informer at
least 20 days before trial.
          On February 10, 2003, the morning the case was set for trial, the State filed a
motion for continuance, arguing that it intended to call the confidential informer as
a witness in the case, but that the confidential informer had been involved in a car
accident.  Specifically, the State’s motion for continuance stated:
The case is presently set for trial on Monday, February 10, 2003.  It is
necessary to continue the above cause of action for the following
reasons: One state witness, a confidential informant used to set up a
drug transaction, has recently had a car accident and suffered severe
head trauma.  Although the witness is expected to recover and present
relevant and cohesive testimony, he is currently out of the county and
travel would be unduly burdensome given his physical condition.  The
witness’s testimony is material to the matter before the court, in that he
was the officer that performed the field sobriety tests on the defendant.


          Sustaita did not directly respond to the State’s motion for continuance, but
instead moved the court to dismiss the indictments with prejudice because the State
had not, as of the date of trial, provided the name of the confidential informer.
          The State responded that, until the Thursday before the Monday trial date, the
State believed that Sustaita planned to plead guilty pursuant to a plea bargain
agreement.  In light of the anticipated plea agreement, the State had not yet provided
the identity of the confidential informer.
          The trial court denied the State’s motion for continuance.  The State then
moved to dismiss the indictments.  The trial court responded that it would not allow
the State to dismiss on its own motion “under any circumstances.”  Instead, it granted 
Sustaita’s motions to dismiss, which were based on Texas Rule of Evidence 508.  The
orders of dismissal state that they are “with prejudice.” 
Dismissal Pursuant to Texas Rule of Evidence 508
          Texas Rule of Evidence 508 provides a qualified privilege to the State to
protect the identity of confidential informers.  The rule provides in pertinent part:
(a)  The United States or a state or subdivision thereof has a privilege to
refuse to disclose the identify of a person who has furnished information
relating to or assisting in an investigation of a possible violation of a law
to a law enforcement officer or member of a legislative committee or its
staff conducting an investigation.
 
* * * *
 
(c)(1) No privilege exists under this rule . . . if the informer appears as
a witness for the public entity.
 
(c)(2) . . . If the court finds that there is a reasonable probability that the
informer can give the testimony and the public entity elects not to
disclose the informer’s identity, the court . . . in a criminal case, shall
on the motion of the defendant, dismiss the charges as to which the
testimony would relate. . . .

Tex. R. Evid. 508(a),(c)(1),(2) (emphasis added).

          The State argues that the trial court erred by dismissing the indictments
pursuant to rule 508 for two reasons.  First, no evidence establishes that the State had
refused to disclose the informer’s identity.  Second, the State affirmatively indicated
in its motion for continuance that it would be revealing the identity of the informer,
who it intended to call as a witness at appellant’s trial.  In sum, the State argues that
it did not invoke a rule 508 privilege.
          Under Rule 508(c)(1), no privilege exists “if the informer appears as a witness
for the public entity.”  If the State was not invoking the 508 privilege to protect the
identity of its informer, the trial court, could not, pursuant to 508(c)(2), dismiss the
indictments.
          Sustaita contends that the State had, effectively, invoked the privilege because,
as of the date of the trial, it had not provided the identity of the confidential informer
20 days before trial, after being ordered to do so by the court in an order dated July
5, 2002.  The State responds that it had not done so because, until the Thursday
before the Monday trial date, it believed that the case was not going to trial and that
Sustaita intended to plead guilty.  Sustaita does not contend that the State’s belief was
unfounded.  The State’s motion for continuance, filed just two working days after
learning that Sustaita had decided to proceed to trial, indicates the State’s willingness
to identify the confidential informer.  The State agreed to provide the informer’s
identification, and, thus, did not invoke a rule 508 privilege.
          Sustaita also argues that providing her with notice of the informer’s identity on
the day of trial would deprive her of the ability to investigate and prepare for trial.  
The State must give notice of its witnesses upon proper request by the defense. 
Young v. State, 547 S.W.2d 23, 27 (Tex. Crim. App. 1977).  Similarly, the State was
under a duty to provide Sustaita with the informer’s identity, pursuant to the trial
court’s July 5, 2002 order.  However, the remedy for the violation of either of these
duties was not a dismissal pursuant to rule 508, because, as we have already held, the
State was not invoking a privilege under rule 508.
  If Sustaita did not have sufficient
time to investigate the informer or to prepare for trial because of the State’s untimely
disclosure of the informer’s identity, she could have joined the State in requesting a
motion for continuance.
CONCLUSION
          The record in this case shows that the State did not timely disclose the
informer’s identity to Sustaita, but it does not show that the State invoked a privilege
under rule 508 by refusing to disclose the informer’s identity.  Accordingly, we hold
that the trial court erred by dismissing the indictments.  In light of our disposition, we
need not decide whether a dismissal pursuant to rule 508 should be with prejudice or
without prejudice.  We remand the cases for further proceedings.
 



                                                             Sherry Radack
                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Publish.  Tex. R. App. P. 47.2(b).
