                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-03-136-CR


JANE ETTA HARRIS                                                    APPELLANT

                                              V.

THE STATE OF TEXAS                                                       STATE

                                          ------------

           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                          ------------

                  MEMORANDUM OPINION 1 ON REMAND

                                          ------------

      A jury found Appellant Jane Etta Harris guilty of possession of a

controlled substance and assessed her punishment at ten years’ imprisonment.

The trial court sentenced her accordingly. In three points, Appellant challenges

(1) the trial court’s denial of her motion to suppress based on an invalid search

warrant, (2) the trial court’s refusal to conduct an in camera hearing related to



      1
          … See T EX. R. A PP. P. 47.4.
a confidential informant, and (3) the trial court’s denial of Appellant’s requested

article 38.23 jury instruction.

      On original submission, this court held that the affidavit supporting the

search warrant, exclusive of the statements that were untrue or made with

reckless disregard for the truth, was insufficient to provide probable cause,

sustained Appellant’s first point, reversed the trial court’s judgment, and

remanded the case for trial without the illegally seized evidence. 2 The Texas

Court of Criminal Appeals reversed this court, holding that Appellant failed to

preserve Franks 3 error, and remanded the case back to this court for

consideration of Appellant’s remaining points.4 Because we hold that the trial

court did not err by refusing to conduct an in camera hearing or by refusing to

give the jury an article 38.23 instruction, we affirm the trial court’s judgment.

                                  B ACKGROUND F ACTS

      In June 2001, the Fort Worth Police Department received a Tarrant

County Crime Stoppers tip that drugs were being sold out of Apartment No.

158 at 5308 East Rosedale in Fort Worth. The investigating police officer



      2
       … Harris v. State, 184 S.W.3d 801, 813 (Tex. App.—Fort Worth 2006),
rev’d, 227 S.W.3d 83, 86 (Tex. Crim. App. 2007).
      3
          … Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978).
      4
          … Harris v. State, 227 S.W.3d 83, 86 (Tex. Crim. App. 2007).

                                          2
assigned to investigate the complaint said that he observed traffic which he

described as consistent with narcotics dealing coming from the general area of

the apartment. He then arranged for a confidential informant to attempt a

narcotics purchase from the apartment. After the officer used the confidential

informant to conduct an undercover buy, he obtained a search warrant for the

apartment. The police executed the search warrant and recovered over four

grams of cocaine.

      In a two-count indictment, Appellant was charged with possession of

cocaine with intent to deliver and possession of cocaine.          Prior to trial,

Appellant filed a motion to disclose the identity of the confidential informant.

After a hearing, the trial court denied the motion.

                                 IN C AMERA H EARING

      In Appellant’s second point, she contends that the trial court erred by

refusing to conduct an in camera hearing to determine whether the State could

invoke its privilege to protect the informant’s identity. Generally, the State has

a privilege to refuse to disclose the identity of an informant who has furnished

information to a law enforcement officer conducting an investigation.5 The

privilege does not apply (1) if the informant’s identity has been voluntarily




      5
          … See T EX. R. E VID. 508(a).

                                          3
disclosed, (2) if the informant may be able to give testimony necessary to a fair

determination of guilt or innocence, or (3) if the court is not satisfied that

information was obtained from an informant reasonably believed to be reliable. 6

Appellant relies on the second exception, which provides in pertinent part:

             (2) Testimony on merits. If it appears from the evidence in
      the case or from other showing by a party that an informer may be
      able to give testimony necessary to a fair determination of . . . guilt
      or innocence in a criminal case, and the public entity invokes the
      privilege, the court shall give the public entity an opportunity to
      show in camera facts relevant to determining whether the informer
      can, in fact, supply that testimony.7

      The defendant bears the initial burden of showing that the informant may

be able to give testimony necessary to a fair determination of the defendant’s

guilt or innocence. 8     This initial burden has been described as a “plausible

showing.” 9 “Evidence from any source, but not mere conjecture or speculation,

must be presented to make the required showing that the informant’s identity

must be disclosed.” 10       If the defendant meets the burden of making the




      6
      … T EX. R. E VID. 508(c); Bodin v. State, 807 S.W .2d 313, 317 (Tex.
Crim. App. 1991).
      7
          … T EX. R. E VID. 508(c)(2).
      8
          … Bodin, 807 S.W.2d at 318.
      9
          … Id.
      10
           … Id.

                                         4
preliminary showing, then the trial court is required to hold an in camera

hearing.11 When an informant is present at the time of an illegal transaction or

participated in its commission, the informant is a material witness to that

transaction and must be identified.12

      In the case before us, however, the illegal act witnessed by the informant

is not the same illegal act with which Appellant is charged.        Rather, the

informant’s information was used to show probable cause that Appellant

possessed cocaine for the issuance of the search warrant. Thus, the informant

is not a material witness to the evidence upon which the State relied for a

conviction—the events and evidence seized during the execution of the search

warrant. Instead, the informant merely supplied information that was used to

establish probable cause necessary for the issuance of a search warrant.

Appellant points to no evidence that the informant was present during the

execution of the warrant and the arrest or that the informant had any

information relevant to Appellant’s guilt or innocence. Thus, Appellant did not

satisfy her initial burden to show that the informant was able to give testimony

necessary to a fair determination of her guilt or innocence and did not trigger



      11
           … Id.
      12
           … See Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991).


                                        5
the procedural requirements of rule 508(c)(2). We overrule Appellant’s second

point.

                                     J URY INSTRUCTION

         In Appellant’s third point, she argues that the trial court erred by denying

her request for an article 38.23 jury instruction. Under article 38.23 of the

code of criminal procedure, no evidence obtained in violation of the federal or

state constitutions or laws may be admitted; and when the legal evidence raises

an issue regarding a violation, the jury must be instructed that if it believes, or

has a reasonable doubt, that the evidence was obtained in violation of the law,

it must disregard the illegally obtained evidence. 13 A trial court is required to

include a properly worded article 38.23 instruction in the jury charge only if

there is a factual dispute as to how the evidence was obtained. 1 4               An

appellant’s disagreement “with the conclusion that probable cause was shown

as a matter of law is not the same as appellant controverting the facts.” 15

         Here, the disputes Appellant discusses—the contradictions between the

investigating officer’s testimony and his affidavit regarding whether the

informant actually entered Apartment No. 158 and regarding what the officer


         13
              … T EX. C ODE C RIM. P ROC. A NN. art. 38.23(a) (Vernon 2005).
         14
              … Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004).
         15
              … Id. at 86.

                                             6
actually observed—go to the veracity of the allegations in the probable cause

affidavit. “W hether the affidavit contained sufficient facts for a neutral and

detached magistrate to conclude there was probable cause is a legal question;

any dispute regarding the facts contained in the affidavit was for the trial court

to [resolve] under the appropriate standard of review.” 16 The trial court was

therefore not required to include an article 38.23 instruction in the jury

charge. 17 We overrule Appellant’s third point.

                                  C ONCLUSION

      Having overruled all of Appellant’s points on appeal, we affirm the trial

court’s judgment.


                                            LEE ANN DAUPHINOT
                                            JUSTICE

PANEL B:       DAUPHINOT, HOLMAN, and GARDNER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: June 26, 2008




      16
       … Heimsath v. State, No. 05-06-00310-CR, 2007 WL 659970, at *3
(Tex. App.—Dallas Mar. 6, 2007, no pet.) (not designated for publication).
      17
           … See id.

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