in the Matter of J.M.A.B. ( 2006 )

Opinion filed November 30, 2006

Opinion filed November 30, 2006                     

                                                                        In The

        Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00104-CV

                                                     __________

                                      IN THE MATTER OF J.M.A.B.

                                       On Appeal from the County Court at  Law

                                                        Midland County, Texas

                                                     Trial Court Cause No. 5142

                                              M E M O R A N D U M  O P I N I O N

This is an appeal from a modification hearing of J.M.A.B.=s community supervision.  The trial court sentenced appellant to the Texas Youth Commission. We affirm.

Background Facts

In November 2003, the trial court adjudicated that appellant was a child who had engaged in delinquent conduct and placed him on community supervision for a period of one year under the supervision of the Midland County Juvenile Probation Office in the Intensive Supervision Program.  Appellant=s community supervision conditions included requirements that he commit no offense against the laws of the State of Texas, report to the probation officer, and abide by curfew regulations.  In October 2004, the State filed a motion to modify appellant=s disposition alleging that appellant violated his community supervision by (1) unlawfully, intentionally, and knowingly possessing a usable quantity of marihuana of two ounces or less in, on, and within 1,000 feet of property owned by a school in violation of Tex. Health & Safety Code Ann. ' 481.134 (Vernon Supp. 2006); (2) unlawfully and knowingly, with intent to deceive, making a false statement that was material to a criminal investigation to a peace officer conducting an investigation in violation of Tex. Pen. Code Ann. ' 37.08 (Vernon 2003); (3) failing to report to his probation officer on six different occasions; and (4) failing to follow curfew regulations on four different occasions.  Appellant pleaded not true to the State=s allegations, and the trial court conducted a hearing on the motion to modify appellant=s disposition.

The evidence at the modification hearing showed that appellant was a student at Midland Freshman School.  Guadalupe Sanchez, a Midland ISD police officer, received a tip from another student at Midland Freshman that appellant was in possession of marihuana.  Officer Sanchez called appellant into the school office and asked him to empty his pockets.  Appellant removed a tin canister from one of his pockets.  A rolled cigar containing what appeared to be marihuana was inside the canister.  Tests performed on the contents of the cigar showed that the contents contained marihuana.

Further evidence was offered as to the other allegations in the motion to modify disposition, but that evidence is not relevant to this appeal.  The trial court found the allegations in the State=s motion to modify disposition to be true and sentenced appellant to the Texas Youth Commission for an indeterminate period of time not to exceed the time when appellant would be twenty-one years of age.

Issues on Appeal

Appellant raises two issues on appeal.  First, appellant contends that the trial court abused its discretion in not ordering the State to divulge the name of the confidential informant who implicated appellant.  Second, appellant contends that the trial court abused its discretion in admitting State=s Exhibit Number One because there was not a showing of the complete chain of custody.

Standard of Review

We review the trial court=s decision to admit evidence under an abuse of discretion standard.  Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).  We also review a trial court=s decision not to require disclosure of a confidential informant under an abuse of discretion standard.  State v. Sotelo, 164 S.W.3d 759, 760 (Tex. App.CCorpus Christi 2005, no pet.) (citing Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980)).  As long as the trial court=s ruling is within the zone of reasonable disagreement, the trial court does not abuse its discretion, and its ruling will be upheld. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

Disclosure of Confidential Informant

Appellant argues that the trial court should have required the State to reveal the name of the informant.  Appellant=s attorney asked Officer Sanchez the name of the student who provided the tip.  Officer Sanchez asserted the privilege to refuse to disclose the name of his informant.  When further asked when, where, and how the informant observed appellant in possession of marihuana, Officer Sanchez again asserted the privilege, stating that the information could enable appellant to identify the informant.  Appellant objected to Officer Sanchez=s refusal to answer the question and requested the court to require him to answer.  The court overruled the objection and did not require Officer Sanchez to reveal the name of the informant or when, where, and how the informant observed appellant in possession of marihuana.

The State has the privilege to refuse to disclose the identity of a person who has furnished information leading to an arrest or investigation for a possible violation of the law.  Tex. R. Evid. 508(a).  There are three exceptions to the rule. The privilege does not apply if the informer=s identity has been voluntarily revealed, if the informer may be able to give testimony necessary to a fair determination of guilt or innocence, or if the court is not satisfied that the information was obtained from an informant reasonably believed to be reliable.  Tex. R. Evid. 508(c). The defendant requesting the disclosure of the informant has the burden to demonstrate that there is a reasonable probability the informant may give testimony necessary to a fair determination of the issue of guilt or innocence.  Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991). The defendant must  show how the identity of the informant will aid the defendant in the case.  However, mere conjecture and supposition about the possible relevancy of the informant=s identity is not enough.  Id.

On appeal, appellant contends that the informant was a material witness in the case and important in determining appellant=s guilt or innocence.  We disagree. Officer Sanchez received a tip from another student that appellant was in possession of marihuana.  Officer Sanchez testified that the informant told him that A[h]e is going to be in possession of mari[h]uana, because he has got a cigar with him with mari[h]uana.@  Officer Sanchez also testified that the informant told him the cigar would be in appellant=s pocket and that the informant had seen the cigar in appellant=s possession.  Officer Sanchez testified that he had received tips from this student before and that the information obtained previously had been accurate about ninety percent of the time.

In this case, appellant did not demonstrate that the informant would have been able to give any testimony necessary to a fair determination of appellant=s guilt or innocence.  The informant provided information to Officer Sanchez that was proven to be accurate and reliable in this case.  The informant was not present at the scene at the time of the search.  The trial court did not abuse its discretion by not requiring the disclosure of the informant=s identity.  We overrule appellant=s first issue.

Chain of Custody

Appellant argues that the trial court should not have admitted into evidence State=s Exhibit Number One B the tin canister, the marihuana cigar, and the bag containing the evidence.  Appellant contends that the State did not show a proper chain of custody because it did not present testimony from the person who transported the evidence from the school to the DPS laboratory.

As a condition precedent to admissibility, the party offering an item into evidence must show that the item is what the party represents it to be.  Tex. R. Evid. 901(a).  When an item lacks unique characteristics, a chain of custody is required to show that the item offered is the same as the item involved in the events at issue.  Avila v. State, 18 S.W.3d 736, 739 (Tex. App.CSan Antonio 2000, no pet.). The chain of custody is conclusively established when the person seizing the evidence testifies that he seized the evidence, tagged the evidence, placed an identifying mark on the evidence, placed the evidence in evidence storage, and retrieved the evidence for trial.  Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997).  If the evidence is sent to a lab for testing, the proponent of the evidence must introduce testimony that the lab handled the evidence in the same way.  Avila, 18 S.W.3d at 739.  When the proponent of the evidence shows the beginning and the end of the chain of custody, any gaps in between go to the weight and credibility of the evidence rather than the admissibility of the evidence.  Beck v. State, 651 S.W.2d 827 (Tex. App.CHouston [1st Dist.] 1983, no pet.).

Officer Sanchez testified that the contents of State=s Exhibit Number One were the tin canister appellant took out of his pocket and the cigar that was inside the tin canister.   He further testified that he marked the bag containing the evidence with the date, time, place of recovery, and appellant=s name.  Officer Sanchez also testified that, after marking the bag, he sealed it and placed it in the evidence locker.  He further testified that the evidence offered as State=s Exhibit Number One was in the same or a substantially similar condition as it was when he placed it in the bag.

Bob Wheeler, a supervisor and lab technician for the Texas Department of Public Safety, testified that he analyzed the evidence offered in State=s Exhibit Number One.  He testified that he received State=s Exhibit Number One from Ken Moten, an employee of the Midland County District Attorney=s Office.  Wheeler testified that the bag containing the evidence was sealed and that he broke the seal. He further testified that he marked the bag with the lab case number, his initials, and the date that he resealed the bag after taking out a sample for testing.

This testimony clearly shows the beginning and the end of the chain of custody of State=s Exhibit Number One.  There was no evidence that the evidence had been tampered with prior to trial.  The testimony established that the evidence was in the same or a substantially similar condition at the time it was offered at trial as it was when Officer Sanchez took it from appellant=s possession.  Proof of the beginning and the end of the chain of custody absent any showing of tampering or alteration is sufficient to support admission of the evidence.  Stoker v. State, 788 S.W.2d 1,10 (Tex. Crim. App. 1989).  The trial court did not abuse its discretion in admitting State=s Exhibit Number One.  We overrule appellant=s second issue.

Conclusion

The trial court=s judgment is affirmed.

November 30, 2006                                                                 RICK STRANGE

Panel consists of: Wright, C.J.,                                                  JUSTICE

McCall, J., and Strange, J.