                                                                              ACCEPTED
                                                                          04-15-00058-CR
                                                              FOURTH COURT OF APPEALS
                                                                   SAN ANTONIO, TEXAS
                                                                   11/23/2015 11:43:33 PM
                                                                           KEITH HOTTLE
                                                                                   CLERK

                        NO. 04-15-00058-CR

                    IN THE COURT OF APPEALS               FILED IN
                                                   4th COURT OF APPEALS
                   FOURTH DISTRICT OF TEXAS         SAN ANTONIO, TEXAS
                         AT SAN ANTONIO            11/23/15 11:43:33 PM
                                                     KEITH E. HOTTLE
                                                           Clerk
                     CYNTHIA TORRES LEAL,
                         APPELLANT,

                                v.

                      THE STATE OF TEXAS,
                           APPELLEE


       ON APPEAL FROM THE 81ST JUDICIAL DISTRICT COURT
                    FRIO COUNTY, TEXAS

__________________________________________________________________

                       APPELLANT’S BRIEF
__________________________________________________________________



                                         Justin A. Fischer
                                         SBN 24065233
                                         8000 IH-10W, Ste. 1500
                                         San Antonio, Texas 78230
                                         Tel. (210) 341-4070
                                         Fax (210) 341-4459
                                         justinfischerlaw@gmail.com
                                         Attorney for Appellant




ORAL ARGUMENT NOT REQUESTED
                                NO. 04-15-00058-CR

 STATE OF TEXAS                             §    IN THE
                                            §
 VS.                                        §    FOURTH COURT
                                            §
 CYNTHIA TORRES LEAL                        §    OF APPEALS

__________________________________________________________________

               IDENTITY OF PARTIES AND COUNSEL
__________________________________________________________________


       Pursuant to TEX. R. APP. P. 38.1(a), a complete list of all parties to the trial

court’s judgment and the names and addresses of all trial and appellant counsel are

as follows:

1.     Ms. Cynthia Torres Leal                  4.     The State of Texas
       Lockhart Correctional Facility                  Mr. Robert F. Lipo
       1400 E. MLK, Jr. Industrial Blvd.               1327 3rd St.
       Lockhart, Texas 78644                           Floresville, Texas 78114
       Appellant                                       Trial and Appellant Counsel
                                                       for the Appellee
2.     Mr. Michael R. Zamora
       6800 Park Ten Blvd., Ste. 220 N.
       San Antonio, Texas 78213
       Trial Counsel for the Appellee

3.     Mr. Justin A. Fischer
       8000 IH-10W, Suite 1500
       San Antonio, Texas 78230
       Appellate Counsel for the
       Appellant




                                            i
                                               Table of Contents

Identity of Parties and Counsel ..................................................................................i

Table of Contents ..................................................................................................... ii

Index of Authorities ............................................................................................... iii

I.       STATEMENT OF THE CASE .................................................................... 2

II.      POINT OF ERROR ...................................................................................... 3

         First Point of Error: The trial court erred in failing to order the
         State to disclose the identity of the confidential informant. .......................... 3

III.     STATEMENT OF FACTS ........................................................................... 4

IV.      SUMMARY OF THE ARGUMENT ........................................................... 9

         A.       Summary of the Argument Under the First Point of Error ................ 9

V.       ARGUMENT ............................................................................................. 10

         A.       ARGUMENT UNDER FIRST POINT OF ERROR ....................... 10

                  1.        Restatement of First Point of Error ....................................... 10
                  2.        Standards of Review .............................................................. 10
                  3.        Preservation of Error .............................................................. 10
                  4.        Discussion .............................................................................. 11
                  5.        Harm Analysis ........................................................................ 16

VI.      PRAYER .................................................................................................... 18

CERTIFICATE OF SERVICE ............................................................................ 19

CERTIFICATE OF COMPLIANCE ................................................................... 19




                                                            ii
                                          Index of Authorities


Constitution

U.S. CONST. amend. VI .......................................................................................... 16

TEX. CONST. art. 1, § 10 ........................................................................................ 16

Cases

Anderson v. State, 817 S.W.2d 69 (Tex.Crim.App. 1991)(en banc) .............. 14, 15

Deshong v. State, 625 S.W.2d 327 (Tex.Crim.App. 1981) .................................. 13

Ford v. State, 179 S.W.3d 203 (Tex.App.—Houston[14th], pet ref’d) ................ 14

Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1990) ............................. 10

Olivarez v. State, 171 S.W.3d 283
(Tex.App.—Houston [14th Dist.] 2005, no pet.) .............................................. 13-14

Patterson v. State, 138 S.W.3d 643 (Tex. App.—Dallas 2004, no pet.) ............... 16

Poindexter v. State, 153 S.W.3d 403 (Tex.Crim.App. 2005) ................................ 13

Ramirez v. State, 815 S.W.2d 636 (Tex. Crim. App. 1991)(en banc) .............. 10-11

Roviaro v. United States, 353 U.S. 53 (1957) ............................................ 17, 17-18

Sanchez v. State, 98 S.W.3d 349
(Tex.App.—Houston [1st Dist.] 2003, pet. ref’d.) ............................................... 16

Taylor v. State, 604 S.W.2d 175 (Tex.Crim.App. 1980) ...................................... 10




                                                         iii
Statutes

TEX. HEATH & SAFETY CODE § 481.112(a) .......................................................... 12

TEX. HEATH & SAFETY CODE § 481.112(d) ..................................................... 12-13

Rules

TEX. R. APP. P. 33.1(a) ......................................................................................... 10

TEX. R. APP. P. 33.1(a)(1) .................................................................................... 11

TEX. R. APP. P. 33.1(a)(2) .................................................................................... 11

TEX. R. APP. P. 44.2(b) ......................................................................................... 16

TEX. R. EVID. 508 ............................................................................................. 9, 11

TEX. R. EVID. 508(a) ............................................................................................. 11

TEX. R. EVID. 508(c) ........................................................................................ 11-12

TEX. R. EVID. 508(c)(1)(A) .................................................................................. 11

TEX. R. EVID. 508(c)(1)(B) .................................................................................. 11

TEX. R. EVID. 508(c)(2) ........................................................................................ 11

TEX. R. EVID. 508(c)(2)(A) .................................................................................. 12

TEX. R. EVID. 508(c)(2)(C) .................................................................................. 17

TEX. R. EVID. 508(c)(2)(C)(i) ............................................................................... 17

TEX. R. EVID. 508(c)(2)(C)(ii) .............................................................................. 17

TEX. R. EVID. 508(c)(3) ........................................................................................ 12




                                                         iv
                               NO. 04-15-00058-CR

 STATE OF TEXAS                           §    IN THE
                                          §
 VS.                                      §    FOURTH COURT
                                          §
 CYNTHIA TORRES LEAL                      §    OF APPEALS

__________________________________________________________________

                       APPELLANT’S BRIEF
__________________________________________________________________

To the Honorable Justices of said Court of Appeals:

       Cynthia Torres Leal, Appellant, files this her Brief on the denial of her

motion to reveal confidential informants, in Cause No. 12-08-087-CRF, The State

of Texas v. Cynthia Leal, in the 81st Judicial District Court of Frio County, Texas,

The Honorable Judge Donna Reyes, Presiding.
                                       I.
                              STATEMENT OF THE CASE

       Appellant was charged by indictment with Possession, with intent to

delivery, a Controlled Substance Penalty Group 1, more than four grams, but less

than 200 grams, in Cause No. 12-08-00087-CRF in the 81st District Court. (CR 1.)

A hearing on the Appellant’s motion to reveal confidential informants was held on

June 6, 2013 with a ruling denying the motion to suppress on June 6, 2013. (MR

47, 54)1 Appellant plead no contest pursuant to a plea on September 30, 2014.

(PR, 8; CR 46-76.) On December 11, 2014 a sentencing hearing was held. (SR.)

The Court found the Appellant guilty and sentenced the Appellant to 20 years

confinement in the Texas Department for Corrections for. (SR 9; CR 80-81.) A

formal Judgement of Conviction was entered by the Court. (CR 80-81.) Appellant

filed her notice of appeal on January 7, 2015. (CR 92.)




1
  There are three different reporter’s records filed by two different court reporters and one
supplemental reporter’s record containing the search warrant affidavit and the search warrant
from the motions hearing. When referencing the reporter’s record counsel will reference to the
hearing. So the reporter’s record for the motions hearing will be (MR), the reporter’s record for
the plea hearing will be (PR), the reporter’s record for sentencing will be (SR) and the
supplemental reporter’s record will be (SMR).


                                                2
                                       II.
                                POINT OF ERROR

First Point of Error: The trial court erred in failing to order the State to disclose

the identity of the confidential informant.




                                          3
                                   III.
                            STATEMENT OF FACTS

Search Warrant and the Confidential Informant

      On August 19, 2011 Officer Pedro Salinas of the Pearsall Police Department

applied for a search warrant of the Appellant’s residence. (SMR 4-8.) Officer

Salinas decided to get a search warrant for the Appellant’s residence because in the

twenty-four hours preceding the issuance of the search warrant a confidential

informant (“CI”) had been in the Appellant’s residence and saw cocaine being

purchased. (SMR 6; MR 19.) The Officer’s CI told Salinas that he is able to call up

the Appellant and “order” cocaine. (SMR 6.) The CI stated that he had seen the

Appellant make sales of narcotics throughout Pearsall, Texas. (SMR 6.) This CI

was considered credible by Officer Salinas. (SMR 6.) This CI has previously been

used in the past and has provided accurate information leading to seizures of illegal

controlled substances and stolen property. (SMR 6.)

      After receiving the CI’s information Officer Salinas performed surveillance

on the Appellant’s location and observed individuals go to the Appellant’s

residence and meet the Appellant. (SMR 6.) After getting to the Appellant’s

residence the individuals leave two or three minutes later. (SMR 6.) During four

hours of surveillance Officer Salinas observed five suspected drug transactions.

(SMR 6.) Due to Officer Salinas training and experience, the actions by the

Appellant and the individuals coming to the Appellant’s residence are “consistent

                                          4
with the illegal sale of narcotics” and further the CI’s information was

corroborated by what Officer Salinas observed during his surveillance of the

Appellant’s residence. (SMR 6.)

Testimony at the Motion’s Hearing

Cynthia Leal

      The first witness called at the motion’s hearing was the Appellant, Cynthia

Leal. (MR 5-14.) Ms. Leal testified that in the twenty-four hours prior to the

execution of the search warrant the Appellant’s husband and son, the Appellant’s

sister, Amanda Lopez, as well as a friend of the Appellant’s sister, Anna Carizales,

were in the residence. (MR 6-7, 13.) During their time in the residence there was

no paraphernalia out in the open, nor was there any other contraband such as

cocaine, methamphetamine, or marijuana out where anyone could see it. (MR 7.)

      The warrant was at 10:00 a.m. on August 19, 2011 and executed at 10:50

a.m. on August 19, 2011. (SMR 11, 12.) The Appellant testified that at

approximately 8:30 in the evening of August 18th that her sister Amanda Lopez

left drugs at her house. (MR 7-8, 12.) The Appellant further testified that while

Anna Carizales was present no drugs were in the residence. (MR 7-8.) There were

also no drugs present while the Appellant’s son and husband in the house because

they were at school and at work, respectively. (MR 8.) The only people who were




                                          5
in the house while drugs were present were the Appellant and the Appellant’s

sister, Amanda Lopez. (MR 8.)

      The drugs left by Amanda Lopez were packaged in “different ziplocks” and

already packaged for distribution. (MR 9, 10.) The drugs in Lopez’s bag totaled

about an ounce and a half of different drugs. (MR 9, 10.) Along with the drugs

Lopez left cash at the Appellant’s residence. (MR 9. 10) After Lopez left the drugs

at the Appellant’s residence the Appellant placed the drugs in her drawer to

prevent the Appellant’s son from finding the drugs. (MR 11.)

Mark Leal

      The second person to testify at the motions hearing was Mark Leal. (MR 15-

18.) Mr. Leal was a co-defendant to the Appellant whose case was dismissed after

the Court ordered the informant to be disclosed. (MR 3, 54.) Mr. Leal stated that in

the twenty-four hours prior to the execution of the search warrant that he didn’t

know who was in the house because he had been at work. (MR 16.) When Mr. Leal

returned from work that evening he did not see any drug paraphernalia, drugs,

marijuana, methamphetamine, or cocaine in the house. (MR 17.)

Lieutenant Peter Salinas

      The last person to testify at the motions hearing was the investigating officer

Peter Salinas. (MR 18-38.) Officer Salinas testified that during his observation of

the Appellant’s residence he did not obtain any video or photographic footage of



                                          6
the CI going into the residence during the twenty-four hours preceding the

execution of the search warrant. (MR 19.) Further, Officer Salinas testified that the

CI did not provide any photographs or video footage to corroborate his story. (MR

20.) The only corroboration of the CI’s story is that the CI went into the house and

Officer Salinas believed the CI because he was credible. (MR 20-21.) Further,

while there were inconsistencies between what the CI said and what the police

found when executing the search warrant, the CI did a controlled buy of cocaine at

the Appellant’s residence within the twenty-four hours of the search warrant being

issued. (MR 22-24.)

      On questioning by the State Officer Salinas testified that the confidential

informant’s identity has not been disclosed and that further the CI was not present

when the search warrant was executed or when the Appellant was arrested. (MR

25.) Officer Salinas further testified that after the Appellant was arrested she made

a custodial statement where Appellant acknowledged the drugs were in her

residence, that the drugs belonged to the sister, and that she has been selling drugs

two months prior to the search. (MR 26.) During the Appellant’s statement she

never stated that the drugs had been planted by Anna Carizales or Amanda Lopez.

(MR 26.)

      Contrary to Officer Salinas’ in-court testimony the police report attached

part of the plea paper work stated that during the Appellant’s statement the



                                          7
Appellant identified Noelda Torres Martinez and Amanda Lopez as the people to

whom the drugs belonged. (CR 58.) Further, the police report states the Appellant

denied possession of the drugs or money, rather that the Appellant was holding for

Amanda Lopez. (CR. 58.)




                                        8
                                      IV.
                    SUMMARY OF THE ARGUMENT
          A. Summary of the Argument Under the First Point of Error

      Under TEX. R. EVID. 508 the government must disclose the identity of a

confidential informant if the informant’s testimony is necessary to a fair

determination of the issue of guilt or innocence. When considering what crime the

Appellant was charged with, the evidence that the government must provide to find

the Appellant guilty, compared to the evidence the confidential informant will

provide; the trial court erred in failing to order the state to disclose the confidential

informant.




                                            9
                                     V.
                                 ARGUMENT
                     A. Argument Under First Point of Error.

1. Restatement of First Point of Error

      The trial court erred in failing to order the State to disclose the identity of the

confidential informant.

2. Standard of Review

      A trial court’s denial of a motion to disclose a confidential informant is

reviewed under an abuse of discretion standard. Taylor v. State, 604 S.W.2d 175,

179 (Tex.Crim.App. 1980.) Under the abuse of discretion standard the judgment of

the trial court must be affirmed unless the decision of the trial court was so clearly

wrong as to lie outside that zone within which reasonable persons might disagree.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990.) The Court must

decide whether the trial court’s ruling was arbitrary or unreasonable. Id.

3. Preservation of Error

      To present a claim on appeal the party who is appealing must have preserved

the error. See TEX. R. APP. P. 33.1(a). For error to be preserved the appellant must

(1) timely object, (2) specify the grounds for the objection, and (3) obtain a ruling.

Id. Finally, the ruling of the trial court “must be conclusory; that is, it must be clear

from the record the trial judge in fact overruled the defendant’s objection or




                                           10
otherwise error is waived. Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App.

1991)(en banc).

      In the present case error was preserved. Appellant’s counsel filed a Motion

to Require Disclosure of All Informers Relied Upon and for Production of Said

Informers in Open Court.” (CR 9-12.) Appellant’s motion stated that the informers

identity was necessary under the constitutional requirements of Brady and under

Texas Rule of Evidence 508(c)(2). (CR 10.) This motion and its contents satisfy

the requirements of TEX. R. APP. P. 33.1(a)(1) and (2). In addition to filing the

motion, the Appellant urged this motion in a hearing and received a ruling on his

motion. (MR 54.) The Appellant preserved her error for review.

4. Discussion

      Texas Rule of Evidence 508 states that as a general rule the government:

             Has a privilege to refuse to disclose a person’s identity if:

                  (1)       the person has furnished information to a law
                  enforcement officer or a member of a legislative committee
                  or its staff conducting an investigation of a possible
                  violation of law; and

                  (2)      the information relates to or assists in the
                  investigation.

TEX. R. EVID. 508(a). Section (c) of rule 508 contains three exceptions to this

general rule. The three exceptions are:

            1.     that there has been a voluntary disclosure of the
      confidential informant. TEX. R. EVID. 508(c)(1)(A) and (B);

                                           11
             2.    when a “Court finds a reasonable probability exists that
      the informer can give testimony necessary to a fair determination of
      guilt or innocence.” TEX. R. EVID. 508(c)(2)(A); and

             3.   when the informant’s is necessary to determine whether
      the evidence was obtained in a legal manner. TEX. R. EVID. 508(c)(3).

Appellant’s trial counsel was looking for disclosure under the second exception.

During argument counsel for the State said “[defense counsel] hasn’t shown how

the identity of that person is going aid in his defense. (MR 42.) In response trial

counsel said:

      I completely agree with Ms. Pol. The only thing I would say is how in
      the world could I do that? How could I meet this burden? I mean I’ve
      scoured Pearsall with my investigator to try to find who the
      confidential informant was….Because otherwise, how can we
      necessary to a fair determination -- that’s exactly what I’m trying to
      do.

(MR 44-45.)

Possession of a Controlled Substance

      The State charged the Appellant with possession with intent to deliver a

controlled substance, penalty group 1, 4-200 grams, mainly cocaine. (CR 1.) To

prove this offense the State was required to prove the Appellant knowingly

manufactures, delivers, or possesses with intent to deliver a controlled substance

listed in Penalty Group 1, and the amount of the controlled substance to which the

offense applies, by aggregate weight, including adulterants or dilutants, four grams

or more but less than 200 grams. TEX. HEALTH & SAFETY CODE § 481.112(a) and

                                          12
(d). The indictment shows the State was going on possession portion of the

offense. (CR 1.)

      To prove that the Appellant possessed the controlled substance the State

must show that, “(1) the accused exercised control, management, or care over the

substance; and (2) the accused knew the matter possessed contraband.” Poindexter

v. State, 153 S.W.3d 403, 405 (Tex.Crim.App. 2005.) Further, the evidence must

show that the Appellant’s connection with the drug “was more than just fortuitous”

there must be some “affirmative link.” Id. at 406. “When the accused is not in

exclusive possession of the place where the substance is found, it cannot be

concluded that the accused had knowledge of and control over the contraband

unless there are additional independent facts and circumstances which

affirmatively link the accused to the contraband.” Id. (quoting Deshong v. State,

625 S.W.2d 327, 329 (Tex.Crim.App. 1981.)

      To prove an affirmative link Courts have come up with a non-exhaustive list

of factors:

      (1) the defendant's presence when a search is conducted; (2) whether
      the contraband was in plain view; (3) the defendant's proximity to and
      the accessibility of the narcotic; (4) whether the defendant was under
      the influence of narcotics when arrested; (5) whether the defendant
      possessed other contraband or narcotics when arrested; (6) whether
      the defendant made incriminating statements when arrested; (7)
      whether the defendant attempted to flee; (8) whether the defendant
      made furtive gestures; (9) whether there was an odor of contraband;
      (10) whether other contraband or drug paraphernalia were present;
      (11) whether the defendant owned or had the right to possess the place

                                         13
        where the drugs were found; (12) whether the place where the drugs
        were found was enclosed; (13) whether the defendant was found with
        a large amount of cash; and (14) whether the conduct of the defendant
        indicated a consciousness of guilt.

Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.—Houston [14th Dist.] 2005, no

pet.)

The Confidential Informant was a Material Witness

        If an informant “was an eyewitness to an alleged offense then that informant

can testimony necessary to a fair determination of the issues of guilt or innocence.”

Ford v. State, 179 S.W.3d 203, 210 (Tex.App.—Houston[14th], pet ref’d);

Anderson v. State, 817 S.W.2d 69, 72 (Tex.Crim.App. 1991)(en banc). If the

information provided by the informant “is used to only establish probable cause for

a search warrant and the informant was neither a participant in the offense for

which the defendant is charged, nor present when the search warrant was executed,

the identity of the informant need not be disclosed because his testimony is not

essential to a fair determination of guilt.” Ford, 179 S.W.3d at 210.

        The testimony and the police’s own actions established that the Appellant

was not in exclusive possession of the residence. The Appellant testified that her

husband, her son, her sister, and her sister’s friend were present in the house in the

twenty-four hours prior to the execution of the search warrant. (MR 6-7, 12, 13.)

Further, the police arrested, and the State charged the Appellant’s husband with the

same charge as the appellant. (MR 3.) The Appellant has never claimed possession

                                          14
of the drugs stating during testimony that the cocaine was the Appellant’s sister’s

cocaine. (MR 8-10.) Further in the Appellant’s statement to the police after arrest

the Appellant maintained that the drugs belonged to Noelda Torres Martinez and

Amanda Lopez. (CR 58.)

      The Court of Criminal Appeals has said that “a defendant is only required to

make a plausible showing that the informer could give testimony necessary to a

fair determination of guilt. Anderson, 817 S.W.2d at 72. Some of the factors to

show an affirmative link between the Appellant and the narcotics go against

Appellant, they also show the CI is a material witness. The CI is only person who

saw the Appellant in sole possession of the cocaine. The search warrant affidavit

state that “the [Appellant] usually only sells larger amounts and advised usually no

less than an “8ball”. CI advised an “8ball” is approximately 3.5 grams of cocaine

in rock and powder form of the cocaine.” (SMR 6.) During the hearing on the

motion Officer Salinas that the CI did a controlled buy of $20.00 worth of cocaine.

(MR 28.) Salinas further testified that to his belief all of the confidential

informants buys were made at the door. (MR 28.) Due to the Appellant being in the

non-exclusive possession of the residence where the drugs were found there must

be some other affirmative links to show the Appellant possessed the cocaine. The

one witness who can verify that the Appellant possessed, or did not possess the

cocaine was the confidential informant. The confidential informant was a



                                           15
material witness necessary to making a fair determination of the issues of guilt

or innocence.

5. Harm Analysis

      The review of a trial court’s ruling on a denial of a motion to disclose a

confidential informant is under an abuse of discretion standard and any error must

be disregarded unless the error affected the defendant’s substantial rights. TEX. R.

APP. P. 44.2(b); Sanchez v. State, 98 S.W.3d 349, 356-357 (Tex.App.—Houston

[1st Dist.] 2003, pet. ref’d.)(stating that this error is a non-constitutional error

governed by the harmless error standard of Tex. R. App. P. 44.2(b).) A defendant’s

substantial rights are affected when the error had a substantial and injurious effect

or influence on the judgment. Id. at 357.

      A criminal defendant has a federal and state constitutional right to confront

and cross examine witnesses. U.S. CONST. amend VI; TEX. CONST. art. 1, § 10.

Allowing the State to proceed to trial and have the Appellant identified through an

unknown CI, when that CI is material to the guilt or innocence of the Appellant

would be violative of the Appellant’s confrontation rights. The Dallas Court of

Appeals has held that when a defendant wants the CI disclosed because the CI

“could have identified other occupants who ‘could have been responsible for the

contraband’ was nothing more than mere conjecture or supposition unsupported by




                                            16
any evidence.” Patterson v. State, 138 S.W.3d 643, 649 (Tex. App.—Dallas 2004,

no pet.)

      This case is the inverse of Patterson, the Appellant knows and has told the

arresting officers whose cocaine was found in her residence, Amanda Lopez and

Noelda Martinez. (CR 58.) Here, the CI is the only person who can testify that the

Appellant, possessed with intent to deliver narcotics. This necessary fact goes to

the heart of every possession of a controlled substance prosecution. This is not

mere conjecture or supposition, this is a concrete fact that goes to a fair

determination of guilt or innocence.

      Harm is shown in the remedy in that the remedy found in TEX. R. EVID.

508(c)(2)(C) doesn’t allow the citizen accused get the identity of the CI. Rather, all

that is required is that the court conduct an in camera hearing via affidavit or

testimony. TEX. R. EVID. 508(c)(2)(C)(i). Further, Counsel for the citizen accused

is not allowed to attend such an in camera review so there is no back door

disclosure to a criminal defendant of the CI identity. TEX. R. EVID.

508(c)(2)(C)(ii). The Supreme Court has said that this “privilege recognizes the

obligation of citizens to communicate their knowledge of the commission of

crimes to law-enforcement officials and, by preserving their anonymity,

encourages them to perform that obligation.” Roviaro v. United States, 353 U.S.

53, 59 (1957). However, the Supreme Court went on to say that “[w]here the



                                          17
disclosure of an informer’s identity, or of the contents of his communication, is

relevant and helpful to the defense of an accused, or is essential to a fair

determination of a cause, the privilege must give way.” Id. at 60-61. The trial

court’s failure to disclose the identity of the informant harmed the Appellant’s

substantial rights and the trial court’s refusal to disclose the identity of the

informant was an abuse of discretion.

                                         V.
                                       PRAYER

      For the reasons state above, Appellant, Cynthia Torres Leal, submits that the

trial court committed reversible error in failing to grant the motion to reveal

confidential informant. Appellant prays that the judgment and sentence be

reversed and that this cause be remanded for further proceedings.

                                                RESPECTFULLY SUBMITTED

                                                /s/Justin A. Fischer______________
                                                Justin A. Fischer
                                                SBN 24065233
                                                8000 IH-10W, Ste. 1500
                                                San Antonio, Texas 78230
                                                Tel. (210) 341-4070
                                                Fax (210) 341-4459
                                                Attorney for Appellant




                                           18
                         CERTIFICATE OF SERVICE

       I certify that on November 23, 2015, a true and correct copy of Appellant’s
Brief was served on the 81st District Attorney’s office via the eServe function of
the efiling service provider.

                                                   /s/Justin A. Fischer__________
                                                   Justin A. Fischer




                      CERTIFICATE OF COMPLIANCE

      I certify that this brief was prepared with Microsoft Word 2013, and that,

according to that program’s word-count function, the sections covered by TRAP

9.4(i)(1) contain 3,354 words.



                                                   /s/Justin A. Fischer__________
                                                   Justin A. Fischer




                                        19
