State v. Phillip Edward Norwood ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-15-00083-CR
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THE STATE OF TEXAS, Appellant
V.
PHILLIP EDWARD NORWOOD, Appellee
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On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 10-01-00746 CR
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MEMORANDUM OPINION
Phillip Edward Norwood was indicted for possession of a controlled
substance with intent to deliver/manufacture. Pursuant to a motion for disclosure
filed by Norwood, the trial court ordered the State to disclose the name of its
confidential informant. The State disclosed the informant’s name but Norwood
filed a second motion seeking information regarding the informant’s background.
The trial court granted the motion. When the State failed to provide this
information, the trial court dismissed the indictment. In three appellate issues, the
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State challenges the dismissal of the indictment. We reverse the trial court’s order
of dismissal and remand for further proceedings consistent with this opinion.
In issue three, the State contends that the trial court’s dismissal of the
indictment against Norwood was improper because the informant’s background
information is in the exclusive possession of the DEA and is not in the State’s
possession, custody, or control. Article 39.14(a) of the Texas Code of Criminal
Procedure requires the State to produce items of discovery that are “in the
possession, custody, or control of the state or any person under contract with the
state.” Tex. Code Crim. Proc. Ann. art. 39.14(a) (West Supp. 2014). Norwood
concedes that the trial court’s order violates article 39.14(a) and should be
reversed.
According to the record, in March 2014, the DEA provided the State with
the informant’s name and the name of who to contact should further information be
required. At the hearing on Norwood’s second motion, defense counsel informed
the trial court that attempts to gain additional information from the DEA were
unsuccessful. The trial court acknowledged that the DEA had delayed the case. At
a subsequent hearing, the State represented that it had also attempted to contact the
DEA for further information. At yet a third hearing, the State informed the trial
court that the DEA had refused to disclose the informant’s background
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information. The trial court stated that fault for non-compliance with the order lay
with the DEA, not the State, but dismissed the indictment.
The record demonstrates that the information sought by Norwood was
possessed by the DEA, not the State. Article 39.14(a) only allows the trial court to
order disclosure of evidence that is in the State’s possession. See Tex. Code Crim.
Proc. Ann. art. 39.14(a); see also Valdez v. State, 116 S.W.3d 94, 100 (Tex.
App.—Houston [14th Dist.] 2002, pet. ref’d) (“In discovery matters, the State’s
attorney is answerable only for evidence in his direct possession or in the
possession of law enforcement agencies.”). Because the trial court could not
require the State to disclose evidence that was in the DEA’s possession, custody, or
control, dismissal of the case was improper. We sustain issue three and need not
address the State’s remaining issues. See Tex. R. App. P. 47.1. We reverse the
trial court’s order dismissing the indictment against Norwood and remand the
cause for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
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STEVE McKEITHEN
Chief Justice
Submitted on August 5, 2015
Opinion Delivered August 31, 2015
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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