                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-15-00058-CR

                                        Cynthia Torres LEAL,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                       From the 81st Judicial District Court, Frio County, Texas
                                 Trial Court No. 12-08-00087-CRF
                             Honorable Donna S. Rayes, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: June 15, 2016

AFFIRMED

           Cynthia Torres Leal appeals her conviction for possession of a controlled substance with

intent to deliver, challenging the trial court’s denial of her motion to disclose the identity of a

confidential informant. We affirm the trial court’s judgment.

                                            BACKGROUND

           On August 18, 2011, Officer Pedro Salinas with the Pearsall Police Department received

information from a confidential informant that Leal was selling cocaine out of her home. The

informant had proven to be credible in the past. Based on that tip, Officer Salinas conducted
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surveillance on Leal’s home. During the span of four hours, Officer Salinas observed several

individuals enter the home and leave two to three minutes later. In his experience, Officer Salinas

suspected that five drug transactions took place at Leal’s home. That same day, Officer Salinas

orchestrated a controlled buy during which the informant purchased cocaine at Leal’s residence.

Based on the informant’s controlled buy and his own observation of the suspected drug

transactions, Officer Salinas applied for a search warrant on August 19, 2011, which was issued

and executed that day. In Leal’s home, the officers found illegal narcotics secured in a bag with

smaller baggies that are associated with the sale of drugs.

          Leal was indicted for possessing more than four grams but less than 200 grams of cocaine

with intent to deliver. She filed a pre-trial motion requesting disclosure of the identity of the

confidential informant. The trial court held a hearing on the motion and heard testimony from Leal,

her husband, and Officer Salinas. Leal testified that the drugs found in her home belonged to her

sister. At the conclusion of the hearing, the trial court denied Leal’s motion. Leal subsequently

pled no contest. Leal’s plea was accepted and she was convicted and sentenced to twenty years in

prison.

                                                ANALYSIS

          In her sole issue on appeal, Leal contends the trial court erred in refusing to order the State

to disclose the confidential informant’s identity because the informant could have given testimony

relevant to her guilt or innocence. We review a trial court’s denial of a motion to disclose the

identity of a confidential informant for an abuse of discretion. Portillo v. State, 117 S.W.3d 924,

928 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Thus, we will reverse the trial court’s

judgment only if the trial court’s decision was so clearly wrong as to be outside the zone within

which reasonable persons might disagree. Id.



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       The Texas Rules of Evidence give the State the privilege to refuse to disclose the identity

of a person who has furnished to a law enforcement officer information relating to or assisting in

an investigation of a possible violation of law. TEX. R. EVID. 508(a); Williams v. State, 62 S.W.3d

800, 802 (Tex. App.—San Antonio 2001, no pet.). The privilege is not absolute, and the rule

provides several exceptions. TEX. R. EVID. 508(c). On appeal, Leal argues the exception set forth

in Rule 508(c)(2) applies. That exception provides that the privilege does not apply “if the [trial]

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). 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. Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991); Portillo, 117 S.W.3d at

928. To meet this burden, the defendant must show the informant’s testimony would significantly

aid her defense; mere conjecture or speculation is insufficient, as is merely filing a motion for

disclosure. Bodin, 807 S.W.2d at 318 (defendant is only required to make a plausible showing of

how the informant’s information may be important). If the defendant meets this initial burden, the

State is given the opportunity to show, in camera, facts relevant to whether the informant can

supply the alleged necessary testimony. See TEX. R. EVID. 508(c)(2)(C); see also Long v. State,

137 S.W.3d 726, 732 (Tex. App.—Waco 2004, pet. ref’d).

       At the hearing on Leal’s motion for disclosure, Officer Salinas testified that the confidential

informant was not at Leal’s home when the search warrant was executed and did not participate in

the offense for which Leal was charged. The informant’s information was only used to establish

probable cause for the search warrant and Leal was charged with possessing the narcotics seized

when the warrant was executed. “[W]hen the informant’s information is used only to establish

probable cause for a search warrant and the informant was neither a participant in the offense for
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which the defendant is charged, nor present when the search warrant was executed, the identity of

the informant need not be disclosed because [the informant’s] testimony is not essential to a fair

determination of guilt.” Ford v. State, 179 S.W.3d 203, 210 (Tex. App.—Houston [14th Dist.]

2005, pet. ref’d); Washington v. State, 902 S.W.2d 649, 657 (Tex. App.—Houston [14th Dist.]

1995, pet. ref’d). Leal failed to meet her threshold burden to show the informant’s testimony would

have significantly aided her defense against the charged offense. Therefore, the trial court did not

abuse its discretion in denying the motion.

       Based on the foregoing reasons, we overrule Leal’s issue on appeal and affirm the trial

court’s judgment.


                                                 Rebeca C. Martinez, Justice


DO NOT PUBLISH




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