                                                                          ACCEPTED
                                                                     06-14-00169-CR
                                                           SIXTH COURT OF APPEALS
                                                                TEXARKANA, TEXAS
                                                                1/5/2015 10:19:22 AM
                                                                     DEBBIE AUTREY
                                                                              CLERK

                 CAUSE NO. 06-14-00169-CR

                                                    FILED IN
                                             6th COURT OF APPEALS
                 IN THE COURT OF APPEALS       TEXARKANA, TEXAS
                                             1/8/2015 2:40:00 PM
            SIXTH APPELLATE DISTRICT OF TEXAS DEBBIE AUTREY
                                                     Clerk

                   AT TEXARKANA, TEXAS

____________________________________________________

          STEPHEN W. PENDERGRASS, Appellant

                            VS.

              THE STATE OF TEXAS, Appellee



               TRIAL COURT CAUSE NO. F14437
           IN THE 115TH JUDICIAL DISTRICT COURT
                  MARION COUNTY, TEXAS


                STATE’S APPELLATE BRIEF


                                     Submitted by:


                                     Angela Smoak
                                     Marion County Attorney
                                     102 W. Austin, Room 201
                                     Jefferson, Texas 75657
                                     (903) 665-2611
                                     Fax (903) 665-3348
                                     State Bar #00797466
                    TABLE OF CONTENTS


TABLE OF CONTENTS ……………………………………………………           i

INDEX OF AUTHORITIES ……………………………………………….         ii

STATEMENT OF THE CASE …………………………………………….         1

STATEMENT OF FACTS ………………………………………………….          1

REPLY TO APPELLANT’S ISSUE NUMBER ONE ………………….   2

    THE INDICTMENT IS NOT FUNDAMENTALLY
    DEFECTIVE IN FAILING TO ALLEGE THE NAME OF
    THE PERSON TO WHOM APPELLANT DELIVERED A
    CONTROLLED SUBSTANCE.

CONCLUSION AND PRAYER ………………………………………….          5

CERTIFICATE OF SERVICE ……………………………………………         6

CERTIFICATE OF COMPLIANCE …………………………………….        6




                             i
                    INDEX OF AUTHORITIES


Cases:                                                  Page:

Bodin v. State, 807 S.W.2d 313, 318
     (Tex. Crim. App. 1991) ………………………………………………          3

Harris v. State, 587 S.W.2d 429
      (Tex. Crim. App. Panel No. 2, 1979) ……………………………   3




Statutes:

Rule 508 of the Texas Rules of Evidence ……………………………..   3




                               ii
                       STATEMENT OF THE CASE

     Appellant entered a plea of guilty on October 28, 2013, and received

deferred adjudication for five years on an indictment alleging the state jail

offense of Delivery of a Controlled Substance on or about July 25, 2012. [CR

1,2] At such plea, Appellant signed and agreed to the entry of the stipulation

of evidence and judicially confessed to committing the offense exactly as

charged within the indictment. [CR1-3] No pretrial motions were filed. The

State’s Motion to Proceed with an Adjudication of Guilt was filed on April 20,

2014. [CR 14-15] Appellant entered a plea of true to the five violations

alleged against him in the Motion. [RR 4-6] The trial court heard evidence

and adjudicated Appellant and sentenced him to fifteen months confinement

in State Jail on September 15, 2014. [CR 1] Appellant gave timely notice of

appeal on September 17, 2014. [CR 19]



                         STATEMENT OF FACTS

     Appellant pled true to all of the violations alleged in the State’s Motion

to Proceed with an Adjudication of Guilt. [RR 5-6] Appellant testified at the

hearing on the State’s Motion and offered excuses as to why he violated the

terms and conditions of his deferred adjudication. [RR 7-10]


                                     -1-
            REPLY TO APPELLANT’S ISSUE NUMBER ONE

                         APPELLANT’S ASSERTION

           Is the indictment fundamentally defective because it
           fails to allege the name of the person to whom
           appellant is alleged to have delivered a controlled
           substance so as to be used in the future to bar
           additional prosecution for the same offense?

                              STATE’S REPLY

           THE INDICTMENT IS NOT FUNDAMENTALLY
           DEFECTIVE IN FAILING TO ALLEGE THE NAME
           OF THE PERSON TO WHOM APPELLANT
           DELIVERED A CONTROLLED SUBSTANCE.

                      SUMMARY OF THE ARGUMENT

     The indictment is not fundamentally defective in that a specific person

was identified by confidential informant number.          Further, Appellant

stipulated to the indictment and failed to file any motions requesting the

identity of the named confidential informant and wholly failed to meet his

burden necessitating the disclosure of the informant’s identity.

                      ARGUMENT AND AUTHORITIES

     Appellant argues that the indictment is fundamentally defective as it

alleged not a name but a confidential informant number as the person to

whom Appellant transferred a controlled substance.           The reference,

                                     -2-
“confidential informant #7-25-12” is not general at all but in fact references

a person in regularly kept records and is customary in the indictment of

delivery of drug cases such as these.

     Specifically, Appellant urges that Harris should apply to names in an

indictment to insure the sufficiency of the instrument to be used to prevent

further prosecution for the same offense. Harris v. State, 587 S.W.2d 429

(Tex. Crim. App. Panel No. 2, 1979) Since the person named is a specific

confidential informant, numbered in the indictment, and references a person

in regularly kept records, it seems unlikely, if not impossible, to charge

Appellant for the same offense, on the same date, with the same person all

alleged in the indictment.

     Appellant further fails to recognize Rule 508 of the Texas Rules of

Evidence which would entitle Appellant to the identity of informant. The

defendant has the threshold burden of demonstrating that the informant’s

identity must be disclosed. Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim.

App. 1991) To carry this burden, the defendant must present evidence, but

cannot rely on mere conjecture or speculation. Id.

     In the case at bar, no motion requesting such information was ever

filed and no evidence was presented that would require the disclosure of the


                                     -3-
informant set out in the indictment. In fact, no objection was ever made by

Appellant to the indictment itself and moreover, Appellant signed the

stipulation of evidence and agreed to its entry which specifically stated that

defendant judicially confessed to the offense “exactly as charged within the

indictment.” [CR 4]

     Now comes Appellant complaining of the indictment for the first time

on appeal. Appellant had countless opportunities to request the complained

of information but only now requests the identity of the confidential

informant. Essentially, Appellant has lain behind the log for the duration of

this case and only objected now on appeal after failing to avail himself of

every opportunity presented to him prior to appeal.

     The argument made by Appellant would require this Court to apply the

ruling in Harris v. State to confidential informants where it has never before

been applied. Such application would only serve to allow defendants to

neglect every opportunity to request the complained of information. Those

remedies are available for a reason and application of Harris would certainly

make those remedies unnecessary in future cases and would certainly not

contribute to judicial economy in any form or fashion.

     Appellant’s issue number one should be overruled.


                                     -4-
                         CONCLUSION AND PRAYER

      Wherefore, upon the issue presented, the State prays that the

judgment of the trial court be in all things affirmed.

                                            Respectfully submitted,


                                            s/Angela Smoak
                                            Angela Smoak
                                            Marion County Attorney
                                            102 W. Austin, Room 201
                                            Jefferson, Texas 75657
                                            (903) 665-2611
                                            (903) 665-3348 (fax)
                                            State Bar # 00797466
                                            angela.smoak@co.marion.tx.us




                                      -5-
                          CERTIFICATE OF SERVICE

     I hereby certify that a copy of State’s Appellate Brief was served on
James P. Finstrom, Attorney for Appellant, pursuant to the Rules on this the
5th day of January, 2015.
                                        /s/ Angela Smoak
                                        Angela Smoak



                        CERTIFICATE OF COMPLIANCE

     I certify that this Brief filed electronically on this the 5th day of January,
2015 complies with T.R.A.P. Sec. 9.4(i)(2)(B) and contains 1079 words.

                                             /s/ Angela Smoak
                                             Angela Smoak




                                       -6-
