Texas Court of Criminal Appeals: Trial Court Did Not Abuse Discretion by Granting Rule 508 Motion to Dismiss Capital Murder Charge Where State Refused to Disclose Identity of Confidential Informant
by Douglas Ankney
The Court of Criminal Appeals of Texas reversed a judgment of the Court of Appeals (“COA”) that ruled a trial court abused its discretion when dismissing a charge of capital murder pursuant to Texas Rule of Evidence 508 (“Rule 508”) based on the State’s refusal to disclose the identity of a confidential informant (“CI”).
With the assistance of a CI, the Hays County Narcotics Task Force (“Task Force”) conducted a controlled drug buy from Joel Espino, who—along with his roommate Andrew Alejandro—was a narcotics dealer. Three months later, Reynaldo Lerma and several others allegedly tried to rob Espino and Alejandro. During the attempted robbery, Alejandro shot and killed Espino; Alejandro was the only person to fire a weapon during the robbery attempt. Lerma was charged with capital murder of Espino under Texas Penal Code § 7.02(a)(1), which holds a person criminally liable for the conduct of another if “acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage” in the conducted prohibited by the offense.
During discovery, Lerma’s counsel learned that Espino had never been charged in connection with the controlled drug buy and that the drugs had been destroyed. Counsel suspected that Espino himself had been an informant and that Alejandro may have learned from the CI that Alejandro was an informant, giving Alejandro motive to intentionally kill Espino while using the attempted robbery as cover for the fatal shooting.
Counsel sought the identity of the CI, but the State responded that the identity of the CI was privileged under Rule 508. A hearing in camera pursuant to Rule 508 ensued where the trial court was presented with the following evidence: (1) the CI was involved with the controlled drug buy from Espino; (2) Espino was not charged in connection with the drug buy; (3) Espino was shot and killed by his roommate and fellow drug dealer Alejandro; (4) the State, via the Task Force, vigorously opposed disclosure of any information regarding the CI; (5) members of the Task Force claimed they didn’t know the identity of the CI and they testified they had failed to document any information relating to the CI despite the fact policies required them to do so; and (6) all of the Task Force members testified it was possible that the CI had told Alejandro of the controlled drug buy, giving Alejandro motive to kill Espino. After the in camera hearing, the trial court learned of an email showing the commander of the Task Force knew the CI’s identity but had vowed to fight disclosure.
Arguing that the State elected not to disclose the CI’s identity, Lerma moved to have the capital murder charge dismissed under Rule 508. The trial court concluded the Task Force agents were not credible and granted the motion. The State appealed. The COA reversed, reasoning that the trial court had abused its discretion because it had relied upon speculation that the CI had exculpatory information. The Court then granted Lerma’s petition for discretionary review.
The Court observed that Rule 508(a)(1) and (2) provides the State or a “subdivision” thereof the privilege of refusing to disclose the identity of any person who provides information assisting law enforcement or a legislative committee in an investigation. However, in criminal cases “this privilege does not apply if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of guilt or innocence. If the court so finds and the public entity elects not to disclose the informer’s identity: (i) on the defendant’s motion, the court must dismiss the charges to which the testimony would relate.” Rule 508(c)(2)(A)(i).
The Court explained that the trial court was required to dismiss the case, upon Lerma’s motion, if it determined that “a reasonable probability exists that the informer can give testimony necessary to a fair determination of guilt or innocence.” Id. Review of a trial court’s ruling on a Rule 508 motion is reviewed for abuse of discretion. Taylor v. Sate, 604 S.W.2d 175 (Tex. Crim. App. 1980). This standard is deferential and requires evidence to be viewed in the “light most favorable to the trial court’s ruling.” Burch v. State, 541 S.W.3d 816 (Tex. Crim. App. 2017). With respect to historical facts of the case, the trial court’s determinations are afforded nearly complete deference, particularly regarding issues of credibility and demeanor. Furr v. State, 499 S.W.3d 872 (Tex. Crim. App. 2016). “An abuse of discretion does not occur unless the trial court acts ‘arbitrarily or unreasonably’ or ‘without reference to any guiding rules and principles.’” State v. Hill, 499 S.W.3d 853 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990)).
In Bodin v. State, 807 S.W.2d 313 (Tex. Crim. App. 1991), the Court of Criminal Appeals explained that Rule 508 requires only that the undisclosed informant’s testimony may be necessary to a fair determination of guilt or innocence. “Since the defendant may not actually know the nature of the informer’s testimony ... he or she should only be required to make a plausible showing of how the informer’s information may be important.” Id. (citing United States v. Valenzuela-Bernal, 458 U.S. 858 (1982).
The Court explained that the disclosure requirements under Rule 508 is broader than the government’s disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), because it requires the relevant disclosure of both exculpatory as well as inculpatory information since the latter is equally “necessary to a fair determination of guilt or innocence.” See Rule 508(c)(2)(A); see also Anderson v. State, 817 S.W.2d 69 (Tex. Crim. App. 1991).
Turning to the present case, the Court stated that the trial court determined that the Task Force members’ claims that they didn’t know the CI’s identity weren’t credible, and it could be reasonably inferred that the CI possessed information relevant to Lerma’s guilt or innocence. The trial court’s determination was based on eight established facts (listed in the opinion), not mere speculation, the Court stated. The Court chided the COA for misapplying the Bodin standard by not affording the proper amount of deference to the trial court’s credibility determinations. Based on the facts in the record, the Court concluded that the “plausible showing” required by Bodin was met. The Court instructed that the “Rule 508 burden is not a high one” and concluded Lerma satisfied it by making a “plausible” showing of how the CI’s information may be important to his guilt or innocence. Thus, the Court held that the trial court did not abuse its discretion.
Accordingly, the Court reversed the judgment of the COA and affirmed the judgment of the trial court dismissing the capital murder charge. See: State v. Lerma, 2021 Tex. Crim. App. LEXIS 1139 (2021).
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