                                        NO. 12-13-00157-CR

                               IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

KEVIN RAY RUST,                                          §       APPEAL FROM THE 173RD
APPELLANT

V.                                                       §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §   HENDERSON COUNTY, TEXAS
                                        MEMORANDUM OPINION
        Kevin Ray Rust appeals his conviction for manufacture or delivery of between four and
two hundred grams of methamphetamine, for which he was sentenced to imprisonment for twenty
years. Appellant raises three issues on appeal. We affirm.


                                                 BACKGROUND
        Appellant was charged by indictment with one count of possession of between four and
two hundred grams of methamphetamine with intent to deliver and one count of possession of
between four and two hundred grams of methamphetamine. Appellant pleaded “not guilty” to
each allegation, and the matter proceeded to a jury trial. The evidence presented at trial indicates
that, on November 21, 2011, law enforcement officers executed a search warrant at Appellant’s
residence and pursuant thereto, recovered methamphetamine, marijuana, drug paraphernalia, a
notebook containing a log of transactions, and a quantity of cash.
        The jury found Appellant “guilty” of possession of methamphetamine with intent to
deliver as alleged in the first count of the indictment.1 Following a trial on punishment, the trial
court sentenced Appellant to imprisonment for twenty years. This appeal followed.


        1
           Pursuant to the trial court’s instructions, as a result of its finding, the jury did not answer the charge
question pertaining to the lesser included offense of possession of methamphetamine. See Garcia v. State, 218
S.W.3d 756, 760 (Tex. App.–Houston [1st Dist.] 2007, no pet.) (possession of controlled substance is lesser included
offense of possession of controlled substance with intent to deliver).
                                  INFORMANT IDENTITY PRIVILEGE
          In his first and second issues, Appellant argues that the trial court erred by denying his
request for an in camera hearing to determine (1) the veracity of the information that the
confidential informant provided to the State and (2) the likelihood that the confidential informant
could provide evidence necessary for a fair determination of guilt.
Standard of Review
          We review a trial court’s ruling on a defendant’s motion to disclose the identity of a
confidential informant for abuse of discretion. See Taylor v. State, 604 S.W.2d 175, 179 (Tex.
Crim. App. 1980); Haggerty v. State, 429 S.W.3d 1, 8 (Tex. App.–Houston [14th Dist.] 2013, pet.
ref’d) (citing Ford v. State, 179 S.W.3d 203, 210 (Tex. App.–Houston [14th Dist.] 2005, pet.
ref’d)). Under this standard, a trial court’s decision will not be disturbed on appeal unless it falls
outside the “zone of reasonable disagreement.” Haggerty, 429 S.W.3d at 8. We do not substitute
our judgment for that of the trial court, but instead, determine whether the trial court’s decision
was arbitrary or unreasonable. Portillo v. State, 117 S.W.3d 924, 928 (Tex. App.–Houston [14th
Dist.] 2003, no pet.).
Applicable Law
          The state has the “privilege to refuse to disclose the identity of a person who has furnished
information relating to or assisting in an investigation of a possible violation of a law to a law
enforcement officer . . . conducting an investigation.” TEX. R. EVID. 508(a). There are three
exceptions to this privilege, two of which Appellant claims are applicable here. See TEX. R. EVID.
508(c).
          The “Legality of Obtaining Evidence” exception requires disclosure of an informant’s
identity if the trial court is not satisfied that the information was received from an informer
reasonably believed to be reliable or credible. See TEX. R. EVID. 508(c)(3). Upon the state’s
request, the trial court shall direct that the disclosure be made in camera. Id. This exception
focuses on the trial court, and thus, the test is whether the trial court is satisfied that the informant
was reasonably believed to be reliable or credible. Blake v. State, 125 S.W.3d 717, 728 (Tex.
App.–Houston [1st Dist.] 2003, no pet.). In our review, we examine the record for evidence that
the investigating officer did not believe the informant was reliable or credible. See id.
          The “Testimony on Merits” exception requires disclosure of an informant’s identity if it
appears from the evidence in the case or from other showing by a party that the informant may be



                                                    2
able to give testimony necessary to a fair determination of a material issue on guilt or innocence in
a criminal case. See TEX. R. EVID. 508(c)(2). The burden is on the defendant to show that the
informant’s testimony may be necessary to a fair determination of guilt or innocence; mere
conjecture or supposition about possible relevancy is insufficient. See Bodin v. State, 807 S.W.2d
313, 318 (Tex. Crim. App. 1991).               The informant’s testimony must “significantly aid the
defendant.” Id. However, the courts have recognized that because the defendant actually may not
know the nature of the informant’s testimony, he is required to make only a “plausible showing of
how the [informant’s] information may be important.” Id.
       The defendant has the initial burden of demonstrating that the informant’s identity must be
disclosed. Blake, 125 S.W.3d at 728. If the defendant meets his burden, the trial court must hold
an in camera hearing to provide the state an opportunity to present facts that rebut the defendant’s
preliminary showing. See Bodin, 807 S.W.2d at 319.
       Moreover, as a prerequisite to presenting a complaint for appellate review, the record must
show that the complaint was made to the trial court by a timely request, objection, or motion that
stated the grounds for the ruling with sufficient specificity to make the trial court aware of the
complaint. See TEX. R. APP. P. 33.1(a)(1)(A). Further, the trial court must have ruled on the
request, objection, or motion, either expressly or implicitly, or if the trial court refused to rule, the
complaining party must have objected to the refusal. See TEX. R. APP. P. 33.1(a)(2). As the court
of criminal appeals has explained,


       [t]he purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial
       judge of the basis of the objection and give him the opportunity to rule on it; [and] (2) to give
       opposing counsel the opportunity to respond to the complaint . . . . [A] party must be specific
       enough so as to “let the trial judge know what he wants, why he thinks himself entitled to it, and do
       so clearly enough for the judge to understand him at a time when the trial court is in a proper
       position to do something about it.


Resendez v. State, 306 S.W.3d 308, 312–13 (Tex. Crim. App. 2009) (quoting Lankston v. State,
827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). When a party fails to effectively communicate his
argument, any error will be deemed forfeited on appeal. See Resendez, 306 S.W.3d at 313. An
appellant’s issues on appeal must comport with his objections and arguments at trial, and an
objection stating one legal theory may not be used to support a different legal theory on appeal.
See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 2002); see also TEX. R. APP. P. 33.1.




                                                         3
Pretrial Hearing
       In the instant case, Appellant did not file a written motion to disclose the identity of a
confidential informant. Instead, Appellant filed a motion to suppress evidence. At the hearing on
Appellant’s motion to suppress, Appellant reiterated that he was attacking the search warrant.
       The State called Wick Gabbard, a narcotics investigator with the Henderson County
sheriff’s office, to testify at the hearing. Gabbard testified that he received information from a
confidential informant that someone named Kevin was selling drugs in Gun Barrel City. Gabbard
further testified that he had worked with the confidential informant in the past and had found him
to be credible and reliable. Gabbard stated that he prepared an affidavit for a search warrant in
which he testified that the confidential informant was credible and reliable and had provided true
and correct information regarding narcotic trafficking in Henderson County in the past. He
further stated that he presented the affidavit to a judge in Henderson County and that the judge
authorized a search of Appellant’s residence. Gabbard testified that he and other law enforcement
officers executed the search warrant and found methamphetamine in the closet of Appellant’s
bedroom.
       At the outset of his cross examination of Gabbard, Appellant’s attorney referenced an
affidavit signed by Appellant in which he claimed (1) he knew the identity of the confidential
informant and (2) the information provided to Gabbard by the confidential informant was false.
After an off-the-record discussion, Appellant asked the trial court “to consider having an in
camera questioning of [Gabbard] to determine, within the questions that [Appellant’s counsel] laid
out, whether [the trial court is] satisfied there is any basis for the affidavit and the allegations
[Appellant made].” The trial court ruled that Appellant’s affidavit does not persuade it that the
information provided by the confidential informant was false and that Gabbard knew or should
have known the information was false.
       Appellant’s counsel continued his cross examination of Gabbard. According to Gabbard,
the confidential informant told him that Appellant had drugs in his residence. Gabbard further
testified that the confidential informant had provided information to Gabbard in the past and that
this information always had proven to be correct. Gabbard stated that before completing his
affidavit for the search warrant, he determined that Appellant was a resident of the identified
premises.




                                                 4
       Appellant’s affidavit was introduced into evidence for purposes of the hearing. Appellant
then argued to the trial court that he knew the identity of the confidential informant and that the
information provided by the confidential informant to Gabbard was not true. Appellant further
argued that Gabbard should have known that the information provided by the confidential
informant was not true. At the conclusion of the hearing, the trial court denied Appellant’s
motion to suppress and declined to conduct the in camera hearing concerning the confidential
informant’s identity.
“Legality of Obtaining Evidence” Exception
       Appellant first argues that the trial court should have held an in camera hearing to
determine the identity of the confidential informant based on the “Legality of Obtaining
Evidence” exception to the confidential informant privilege. Specifically, Appellant contends that
his affidavit introduced into evidence at the hearing on his motion to suppress demonstrated to the
court that he knew the identity of the confidential informant and believed that the information
provided to the State by the confidential informant was false. Thus, Appellant continues, an in
camera hearing should have been held so the trial court could determine whether the search
warrant affidavit was made either (1) with knowledge that it contained false information or (2)
with reckless disregard for the truth.
        The “Legality of Obtaining Evidence” exception applies only when the trial court is not
satisfied that the information was received from an informer reasonably believed to be reliable or
credible. See TEX. R. EVID. 508(c)(3). Other than Appellant’s conclusory statements in his
affidavit, all of the evidence presented to the trial court supported a finding that the informant was
reasonably believed to be reliable or credible. Gabbard testified that had used information from
this informant in the past and that the information the informant provided had proven to be true.
Thus, we hold that the trial court did not abuse its discretion when it ruled that it was satisfied the
information was received from an informer reasonably believed to be reliable or credible.
Appellant’s first issue is overruled.
“Testimony on Merits” Exception
       In his second issue, Appellant contends that disclosure of the informant’s identity is
required because it may have been of assistance to him in defending his case. Specifically,
Appellant argues that this disclosure potentially could have established that other persons present
in the residence were in possession of the drugs at issue. We disagree.



                                                  5
        Initially, we note that Appellant failed to preserve this issue. See TEX. R. APP. P. 33.1. At
no time during the hearing on Appellant’s motion to suppress did Appellant assert that the
informant’s identity was necessary under the “Testimony on Merits” exception. Appellant’s
assertion to the trial court that the informant’s identity was discoverable based on the “Legality of
Obtaining Evidence” exception does not preserve any complaint that the evidence was
discoverable based on this exception. See Broxton, 909 S.W.2d at 918; see also TEX. R. APP. P.
33.1.
        Furthermore, even had Appellant preserved this issue, the outcome would not differ.
Appellant was not charged with delivering methamphetamine to the informant, and the informant
was not present when officers executed the search warrant. Rather, the State’s theory of the case
was that Appellant was a drug dealer and used his residence to traffic drugs. At trial, the State’s
case was supported by evidence that methamphetamine was discovered in Appellant’s residence
rather than any testimony attributable to the informant. Based on our review of the record, there is
no evidence that indicates how disclosure of the informant’s identity would have enhanced
Appellant’s ability to evaluate the State’s theory of its case. Thus, we conclude that the trial
court’s denial of Appellant’s request to disclose the identity of the confidential informant was not
outside the zone of reasonable disagreement and did not amount to an abuse of discretion. See
Ford, 179 S.W.3d at 210 (identity need not be disclosed when informant was neither a participant
in the offense for which the defendant is charged nor present when the search warrant was
executed). Appellant’s second issue is overruled.


                                EVIDENCE OF CRIMINAL HISTORY
        In his third issue, Appellant contends that the trial court erred when it allowed the State to
introduce evidence of Appellant’s criminal history during the guilt/innocence phase of the trial.
The State contends that the evidence was admissible because Appellant’s counsel’s opening
statement to the jury “opened the door” to Appellant’s criminal history.
Standard of Review
        A trial court has considerable discretion in determining whether to exclude or admit
evidence. See Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); State v.
Dudley, 223 S.W.3d 717, 724 (Tex. App.–Tyler 2007, no pet.). Absent an abuse of discretion, we
will not disturb a trial court's decision to admit or exclude evidence. See Martin v. State, 173



                                                  6
S.W.3d 463, 467 (Tex. Crim. App. 2005). We will uphold the trial court’s ruling if it was within
the zone of reasonable disagreement. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.
App. 2000); see also Martin, 176 S.W.3d at 467 (holding judgment must be upheld if ruling was
correct on any theory of law applicable to case in light of what was before trial court at time ruling
was made).
Applicable Law
       Generally, evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. See TEX. R. EVID. 404(b).
It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. See id. The listed
exceptions to Rule 404(b) are not exclusive or exhaustive. Montgomery, 810 S.W.2d at 377.
When a defendant objects to the admission of extraneous offense evidence, the state must
persuade the trial court that the evidence is being offered for a purpose other than character
conformity, and that this other purpose tends to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence. Rankin v. State, 974 S.W.2d 707, 719 (Tex. Crim. App. 1998) (op. on
reh’g); Crutchfield v. State, No. 12-09-00348-CR, 2011 WL 2638402, at *4 (Tex. App.–Tyler
June 30, 2011, pet. ref’d) (mem. op., not designated for publication) (proponent must show
extraneous offense has relevance apart from showing character).
       Otherwise inadmissible evidence may be admitted if the party against whom the evidence
is offered “opens the door.” Wells v. State, 319 S.W.3d 82, 94 (Tex. App.–San Antonio 2010, pet.
ref’d); see Prescott v. State, 744 S.W.2d 128, 131 (Tex. Crim. App. 1988) (party “opens the door”
when he leaves false impression as to extent of his prior arrests, convictions, charges, or trouble
with police); see also De La Paz v. State, 279 S.W.3d 336, 345 (Tex. Crim. App. 2009)
(defendant’s attorney’s opening statement may open the door to admission of defendant’s criminal
history). Under this doctrine, a party cannot intentionally broach a subject and then complain
when the subject is subsequently pursued by the opposing party. See Mares v. State, 52 S.W.3d
886, 890 (Tex. App.–San Antonio 2001, pet. ref’d). But the party offering the evidence may not
stray beyond the scope of the invitation. See Wells, 319 S.W.3d at 94.




                                                  7
Harm Analysis
       Even assuming arguendo that Appellant’s attorney did not “open the door” to the totality
of Appellant’s criminal history, the trial court’s error, if any, is not reversible unless Appellant
was harmed by the admission of this evidence.
       A violation of the evidentiary rules that results in the erroneous admission of evidence is
nonconstitutional error. See Kirby v. State, 208 S.W.3d 568, 574 (Tex. App.–Austin 2006, no
pet.); see also Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). We review
nonconstitutional error to determine whether it affected the defendant’s substantial rights. TEX. R.
APP. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). An error affects a
substantial right “when the error had a substantial and injurious effect or influence in determining
the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
       It is well established that the improper admission of evidence is not harmful error if the
same facts are proved by other properly admitted evidence. See McNac v. State, 215 S.W.3d 420,
425 (Tex. Crim. App. 2007); Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999);
Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986).                           Improper admission of
evidence is not reversible error if the same or similar evidence is admitted without objection at
another point in the trial. See Leday v. State, 983 S.W.2d 713, 717–18 (Tex. Crim. App. 1998)
(concluding that party who objects to some evidence but fails to object to other substantially
similar evidence waives any error in admission of objected-to evidence). In this situation, the
error, if any, is harmless because Appellant did not object when the evidence was offered in
another form. See Saldano v. State, 232 S.W.3d 77, 102 (Tex. Crim. App. 2007) Leday, 983
S.W.2d at 717.
Discussion
       In his opening statement to the jury, Appellant’s counsel stated as follows:


       [T]he police never saw any criminal activity outside the house, there was never any surveillance,
       never any come-and-go, never any neighbors complaining. You are going to hear nothing about
       any purported drug activity by [Appellant] coming out of that house. You are going to hear that
       [Appellant] has no criminal record for drugs. You will hear that Toni Sherrin, who was not
       arrested, has a drug history, has been processed for drugs, and is currently in the jail over here on a
       drug charge.


The State contended that this argument made by Appellant’s counsel opened the door to its being
permitted to proffer evidence of Appellant’s criminal history. After considering the issue, the trial


                                                         8
court agreed that Appellant’s counsel’s reference to Appellant’s lack of a criminal record for drug
related offenses opened the door for the State to discuss Appellant’s history of convictions for
crimes not related to drugs. Appellant objected “to any testimony regarding a conviction if
[Appellant] doesn’t testify.”
       Thereafter, the State elicited testimony from Kay Langford, a narcotics investigator for the
Henderson County sheriff’s office. Through Langford, the State offered a pen pack into evidence
as Exhibit 61. That pen pack contained information pertaining to two of Appellant’s previous
convictions. Appellant objected that “there is no basis for introducing any prior criminal record.”
The trial court overruled Appellant’s objection.
       Next, the State asked Langford questions about the Exhibit 61. Langford testified that
Appellant had two prior criminal convictions––one for burglary of a habitation and one for
aggravated assault.    She testified that the judgments included his name, photograph, and
fingerprints. Appellant did not object to Langford’s testimony.
       The State then called Gabbard to the stand. Through Gabbard, the State offered into
evidence as Exhibits 62 and 63 Appellant’s Texas Department of Criminal Justice–Institutional
Division (TDCJ-ID) offender card. Appellant objected that “as to what the exhibits are, I think it
goes into information that is not admissible before the jury, and we object to the exhibit[s].” The
trial court overruled Appellant’s objection.
       The State proceeded to question Gabbard about the exhibits. Gabbard stated that the
TDCJ-ID provides an offender card to those who go to prison. He further stated that Appellant’s
name and picture were on the TDCJ-ID offender card that he found in the same closet where he
found the contraband during the execution of the search warrant. Appellant did not object to
Gabbard’s testimony.     On cross examination, Appellant asked Gabbard about the TDCJ-ID
offender card. Gabbard conceded that he did not know when Appellant was released from the
penitentiary.
       Based on our review of the record, it is apparent that Appellant objected to the admission
of three exhibits that contained information regarding his criminal history. However, Appellant
made no objection to the testimony offered by Langford and Gabbard pertaining to the same
information. We hold that because Appellant did not object when this evidence was offered in
another form, error, if any, in the admission of the three objected-to exhibits is harmless. See
Saldano v. State, 232 S.W.3d at 102. Appellant’s third issue is overruled.



                                                   9
                                                    DISPOSITION
         Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s
judgment.

                                                                  BRIAN HOYLE
                                                                     Justice

Opinion delivered August 6, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                               (DO NOT PUBLISH)



                                                           10
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                            AUGUST 6, 2014


                                          NO. 12-13-00157-CR


                                        KEVIN RAY RUST,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 173rd District Court
                        of Henderson County, Texas (Tr.Ct.No. A-19,395)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
