Opinion issued August 22, 2013




                                    In The

                             Court of Appeals
                                   For The

                        First District of Texas
                          ————————————
                             NO. 01-11-00950-CR
                          ———————————
                     BLAS GARZA PEREZ, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 176th District Court
                          Harris County, Texas
                      Trial Court Case No. 1272117



                               OPINION

     Blas Garza Perez was convicted of possession with intent to deliver

methamphetamine 1 and a jury assessed his punishment at fifteen years’


1
     TEX. HEALTH & SAFETY CODE ANN. § 481.102(6), .112 (a), (f) (West 2010).
incarceration and a $2,500 fine. Perez contends that the trial court erred by not

ordering the disclosure of the true identity and background of a confidential

informant in violation of Texas Rule of Evidence 508, and that the State violated

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) by withholding such

information.

      We affirm.

                              Factual Background

      Houston Police Department Officer Valles is an undercover narcotics officer

who regularly uses confidential informants to set up drug buys at which he poses

as the buyer. Valles was introduced to appellant by Rene Garcia, a confidential

informant who had been working with Valles for the previous four years. At their

first meeting, Valles told appellant that he sought two kilograms of cocaine and

appellant assured Valles that he thought he could arrange that. Although the

transaction failed to go as planned because the seller’s men brought

methamphetamine instead of cocaine, appellant was ultimately able to arrange for

Valles to purchase a large amount of crystal methamphetamine.

      Appellant, who took the stand in his own defense, acknowledged that he had

facilitated Valles’ purchase of the methamphetamine, but testified that he only did

so because Valles and his “close” friend “Rene Flores,” who was working with

Valles as a confidential informant, led him to believe that he was also working for

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the police as a second confidential informant on the case. Appellant had only

known “Rene” for eight to ten months before his arrest. During those months,

Rene had asked appellant on several occasions if he knew anyone who would sell

him a large amount of narcotics. Rene initially asked appellant if he knew anyone

selling marijuana; appellant did not know of anyone. When appellant was unable

to help him buy marijuana, Rene told appellant that he had a criminal case pending

against him, he was working with the police, and he needed appellant to help him

set up a drug purchase by an undercover narcotics agent in order to avoid going to

prison.

      Appellant testified that he agreed to meet with the undercover officer with

whom Rene worked, so Rene arranged a meeting. According to appellant, Valles

told him at that first meeting that “there would be no problem, if [appellant] would

find someone that was selling drugs.” Appellant told Valles that he did not know

anyone selling narcotics, but he would try to find someone. Despite his statements

to Valles, appellant never made any attempt to locate a seller.

      According to appellant, Rene, with his four children in tow, subsequently

showed up at the home appellant shared with his daughter and begged appellant to

help him. Rene told appellant that he could not go to prison because his wife had

cancer, and if something happened to her, there would be no one left to care for

their children. According to Rene, Valles was putting a lot of pressure on him to

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set up the undercover narcotics buy. Moved by Rene’s situation, appellant, whose

own wife had died of cancer eleven years before, told Rene that he was going to try

to help him, but he needed to talk to Valles again, “because otherwise [appellant]

would get involved in problems.” According to appellant, Rene told him that the

police could give him up to $5,000 for putting them in contact with the drug

dealers.

      Appellant testified that after his conversation with Rene, he made several

phone calls to relatives, trying to get in contact with one of his cousins in Mexico.

At that second meeting, appellant contacted his cousin in Mexico, using a walkie-

talkie that Valles provided, and he asked him if he knew anyone with a large

amount of cocaine to sell. Even though his cousin only owned a taco truck,

appellant thought that he could help him because, according to appellant, everyone

in Mexico knows where to buy drugs.2 Appellant told his cousin that he was

cooperating with the police and that he would split the $5,000 with him.

Appellant’s cousin found a supplier who sent two men to Houston with the

narcotics that Valles ultimately purchased. Appellant did not know the two men

transporting the narcotics nor had he ever spoken with either of them before they

arrived in Houston. Appellant testified that he had not seen Rene since he was

arrested and he did not know where to find him.


2
      Appellant’s cousin and the cousin’s son disappeared after appellant was arrested.
                                           4
      Valles was called as a rebuttal witness and denied ever agreeing to use

appellant as a confidential informant or offering appellant any incentives to

participate in the drug deal.

      Procedural Background - Disclosure of True Identity of “Rene Flores”

      After the private investigator appointed to assist in his defense was unable to

locate the man appellant knew as “Rene Flores,” appellant filed a pre-trial motion

to disclose the identity of the confidential informant, his criminal history, and any

incentives he was offered or received for his cooperation with HPD.            Judge

Shawna Reagin held a hearing on this and other pretrial motions at which

appellant’s counsel informed the court that she planned to assert an entrapment

defense based on the fact that Valles and the confidential informant had offered

appellant money if he would assist them by acting as a second informant in the

investigation. Judge Reagin informed the parties that she saw “this as more of a

Brady type situation,” 3 rather than a typical confidential informant situation. The

judge reasoned, “He’s not really a [confidential informant] because [appellant]

knows who it was.” Although she acknowledged that appellant knew him,

appellant’s counsel argued that “Rene Flores” was a “confidential informant

because we don’t know how to get in touch with him.” Judge Reagin subsequently

held an in-camera hearing on the motion during which time she met with Valles


3
      See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).
                                          5
and his supervisor. When asked if appellant knew the informant, Valles told the

trial court that the two men met several weeks before Valles was introduced to

appellant. According to Valles, the informant and appellant did not know each

other beforehand, but became friends during the investigation.

      After the in-camera hearing, Judge Reagin denied appellant’s motion. Three

days later, appellant filed a motion to reconsider the motion to disclose and three

days after that, appellant filed a motion to disclose the true name of the informant,

and a motion for continuance or, in the alternative, a motion to dismiss, arguing

that the information sought was not only subject to disclosure under Texas Rule of

Evidence 508, but it was also exculpatory evidence that the State was required to

disclose under Brady v. Maryland.        See 373 U.S. 83, 83 S.Ct. 1194 (1963)

(requiring that State turn over material, favorable evidence to defendant).

      Prior to opening statements, Judge Jay Burnett, the visiting judge who

presided over appellant’s trial, considered appellant’s motion to disclose. Judge

Burnett declined to rule on the motion at that time and held his decision in

abeyance. Valles testified for the State later that day. When appellant’s attorney

asked Valles if he knew a man named “Rene Flores,” the State objected that this

was an improper attempt to unmask a confidential informant. Judge Burnett stated

that he was sustaining the State’s objection for the moment and that he would

consider this issue further over lunch. After lunch, Judge Burnett stated on the

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record that he had reviewed the applicable case law with regard to confidential

informants and he was not in position to “go behind” Judge Reagin’s earlier ruling.

He further stated that he would continue to keep an open mind and he would

reconsider his ruling, if any new facts disclosed during trial warranted such a

result.

          The following morning, Judge Burnett stated that he had reviewed a

transcript of the in-camera proceeding and reiterated that his ruling had not

changed, but that he would continue to keep an open mind and would reconsider

the motion if the facts warranted it. Later that same day, appellant’s counsel made

an informal bill of review in which she summarized the testimony she believed that

appellant would have elicited from “Rene”—had he been available to testify.

Judge Burnett denied appellant’s motion to disclose. Appellant then took the stand

and told basically the same version of events that his counsel proffered that “Rene”

would have testified to.

          During a brief recess at the end of the day, Judge Burnett swore in a member

of the audience. The man, who identified himself as Rene Garcia Salazar, was

informed that the court would reconvene the next morning and that he was ordered

to be there—“you just come, give your testimony, no problem.” After appellant’s

testimony concluded the next morning, the State recalled Valles as a rebuttal




                                            7
witness. During this testimony Valles revealed the name and current location of

the confidential informant:

      Q      (By State). Officer, who did you bring with you to court yesterday?

      A.     I brought my confidential informant.

      Q.     What is that confidential informant’s name, please?
      A.     His name is Rene Garcia.

      Q.     Who did you bring to court with you today, please?
      A.     The confidential informant.

      Q.     Rene Garcia?
      A.     Yes, sir.


      At that point, a Hispanic male briefly entered the courtroom with the bailiff.

After he left, the State asked Valles one last question, “Who was that that just

entered the courtroom, sir?” Valles replied, “That’s the confidential informant,

René Garcia.” Defense counsel did not cross-examine Valles about revealing the

identity of the confidential informant, with the following exception:

      Q.     (By Appellant’s Counsel) And two days ago when you testified,
             I asked you, or tried to get information from you about this
             confidential informant, didn’t I?

      A.     Yes, ma’am.

      Q.     And you refused to give it to me, didn’t you?
      A.     Yes, ma’am.

      Q.     Because, among other things, you said it’s too dangerous to
             give me that information. Do you remember testifying to that?
                                           8
      A.     Yes, ma’am.

      Q.     And yet today two days later, here he is?
      A.     Yes, ma’am.

      Appellant’s Counsel: Pass the witness.

      The State rested its case after Valles’ rebuttal testimony concluded. After

the jury was removed, the judge asked appellant’s counsel if she wanted to call the

confidential informant and she replied, “You know, Judge, after all of this I’m

ready to rest as well.” The defense rested without calling Rene to the stand or

requesting a continuance.

                               Standard of Review

      In one issue on appeal, Perez contends that the trial court erred by not

ordering the disclosure of the true identity of “Rene Flores” and his background in

violation of Texas Rule of Evidence 508, and that the State’s failure to disclose the

true identity of the “Rene Flores,” his criminal history, and any incentives he was

offered or received for his cooperation with HPD constitutes a Brady violation.

See Brady, 373 U.S. at 87, 83 S.Ct. at 1196–97 (requiring that State turn over

material, favorable evidence to defendant).

      We review the trial court’s ruling on a confidential-informant motion for

abuse of discretion. Sanchez v. State, 98 S.W.3d 349, 356 (Tex. App.—Houston

[1st Dist.] 2003, pet. ref’d). We will disregard any error, however, unless it

affected the defendant’s substantial rights. TEX. R. APP. P. 44.2(b); Sanchez, 98
                                         9
S.W.3d at 356–57 (stating trial court’s failure to order disclosure of confidential

informant’s identify is non-constitutional error governed by TEX. R. APP. P.

44.2(b)); see also Heard v. State, 995 S.W.2d 317, 321 (Tex. App.—Corpus

Christi 1999, pet. ref’d) (holding trial court’s failure to disclose confidential

informant’s identity must be analyzed under “substantial right test”). A substantial

right is affected when the error had a substantial and injurious effect or influence

on the judgment. Sanchez, 98 S.W.3d at 357.

      The State has an affirmative duty to disclose exculpatory evidence that is

material either to guilt or punishment. Brady, 373 U.S. at 86, 83 S.Ct. at 1196.

The State’s duty to reveal Brady material attaches when the information comes

into its possession, not when it is requested. Thomas v. State, 841 S.W.2d 399, 407

(Tex. Crim. App. 1992). To establish a due process violation under Brady, a

defendant must show the following: (1) evidence was suppressed; (2) the

suppressed evidence was favorable to the defendant; and (3) the suppressed

evidence was material to either guilt or punishment. Fox v. State, 175 S.W.3d 475,

490 (Tex. App.—Texarkana 2005, pet. ref’d).

      When the Brady material is discovered during trial, the initial inquiry is

whether the defendant was prejudiced by the delayed disclosure. Palmer v. State,

902 S.W.2d 561, 565 (Tex. App.—Houston [1st Dist.] 1995, no pet.); see also

Little v. State, 991 S.W.2d 864, 867 (Tex. Crim. App. 1999) (reasoning that to

                                        10
prevail on a Brady claim, defendant must show that State’s tardy disclosure

prejudiced defendant). To show prejudice, the defendant must show a reasonable

probability that, had the evidence been disclosed to the defense earlier, the result of

the proceeding would have been different.         Little, 991 S.W.2d at 866.      The

disclosure of Brady material during trial satisfies the requirements of due process

“[i]f the defendant received the material in time to put it to effective use at trial.”

Palmer, 902 S.W.2d at 565. A defendant’s conviction should not be reversed

simply because the Brady material was not disclosed as early as it might have and

should have been. Id. When Brady material is disclosed at trial, the defendant’s

failure either to object to the admission of the evidence on this basis or to request a

continuance waives the error “or at least indicates that the delay in receiving the

evidence was not truly prejudicial.” See Apolinar v. State, 106 S.W.3d 407, 421

(Tex. App.—Houston [1st Dist.] 2003), aff’d on other grounds, 155 S.W.3d 184

(Tex. Crim. App. 2005) (holding that failure to request continuance waives

complaint that State withheld exculpatory evidence in violation of Brady); see also

Smith v. State, 314 S.W.3d 576, 586 (Tex. App.—Texarkana 2010, no pet.)

(holding Brady challenge not preserved because trial court never ruled on

complaint); Jones v. State, 234 S.W.3d 151, 158 (Tex. App.—San Antonio 2007,

no pet.) (holding that defendant must request continuance and present Brady

complaint in motion for new trial to preserve complaint for appellate review);

                                          11
Young v. State, 183 S.W.3d 699, 706 (Tex. App.—Tyler 2005, pet. ref’d) (“The

failure to request [a continuance] waives any Brady violation, as well as any

violation of a discovery order.”).

                                     Discussion

      At the eleventh hour of trial, the State voluntarily disclosed the identity of its

informant.   Indeed, the reporter’s record clearly reflects that the confidential

informant, whose real name is “Rene Garcia Salazar,” was present for at least two

days of the five-day trial. “Rene Garcia Salazar” was sworn in, in open court, on

the third day of trial. While Valles was testifying during the State’s rebuttal case

the next day, the State had this same man, “Rene Garcia Salazar,” walk into the

courtroom. Valles testified, “That’s the confidential informant, Rene Garcia.”

      Appellant did not object to this line of questioning. Even if appellant’s

counsel did not realize who the confidential informant was the day before, after

Valles’ testimony there can be no doubt that everyone in the courtroom, including

appellant and his counsel, knew the identity of the confidential informant as well

as his location (i.e., just outside of the courtroom).         Appellant had ample

opportunity to either call the confidential informant as a witness at trial, or, at the

very least, to request a continuance in order to meet with him to determine whether

he wanted to call the man to testify at trial. Appellant did neither. Instead,

appellant rested his case.

                                          12
      Because appellant neither objected to Garcia Salazar’s in-court identification

nor requested a continuance, his Brady complaint is waived. See Apolinar, 106

S.W.3d at 421; Smith, 314 S.W.3d at 586; Jones, 234 S.W.3d at 158; Young, 183

S.W.3d at 706.

      Although we have not found any opinions expressly applying this rationale

to Rule 508 allegations, we conclude that the logic underlying this well-established

preservation issue is equally applicable to appellant’s Rule 508 argument. When

the State voluntarily discloses a confidential informant’s identity for the first time

at trial, as was the case here, the defendant must either object or request a

continuance in order to preserve a Rule 508 violation for appellate review.

Because appellant did neither, his Rule 508 allegation is also waived.

      We overrule appellant’s sole issue.


                                    Conclusion

      We affirm the trial court’s judgment.




                                              Jim Sharp
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).



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