Robert Procsal, Jr. v. the State of Texas ( 2024 )

AFFIRMED and Opinion Filed June 13, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00044-CR
ROBERT PROCSAL JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-20-0256
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Reichek, and Justice Kennedy
Opinion by Chief Justice Burns
Robert Procsal Jr. appeals the trial court’s judgment convicting him of
manufacturing or delivery of a substance in penalty group 2. A jury found appellant
guilty and assessed his punishment at twenty years’ imprisonment. Appellant raised
three issues on appeal, arguing the trial court erred in (1) overruling his motion to
suppress, (2) denying his motion for disclosure of the source of information, and (3)
admitting certain evidence during the punishment phase of the trial. At oral
argument, however, appellant waived his first ground of error for review.
As to appellant’s second issue—disclosure of the source of information—the
informant was not a participant in the alleged offense, nor was the informant a
witness to any events occurring during the offense. Thus, we conclude the trial court
correctly ruled the informant’s identity did not need to be disclosed by the State, and
we overrule appellant’s second issue.
As to appellant’s third issue, the admission of other-drug evidence during
punishment, the trial court could have found that the evidence was relevant to
appellant’s sentence for the offense of manufacturing or delivery a substance in
penalty group 2. Thus, we hold the trial court did not abuse its discretion in
overruling appellant’s third issue. We affirm the trial court’s judgment.
I. BACKGROUND
A civilian contacted Agent Habib El Khoury, a peace officer with the Texas
Department of Public Safety and informed him that appellant would be traveling to
Rockwall County from Colorado driving a rental car carrying tetrahydrocannabinol
(THC) and marijuana products. Khoury then used appellant’s name, date of birth,
and phone number to find the rental agency that had rented the car to appellant. He
also obtained a license plate number of the rental car. Khoury used the license plate
reader database to determine what time the rental car would arrive in Rockwall
County. At that point, he passed the information on to the Rockwall County Sheriff’s
office.
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Deputy Steven Saric, a patrol deputy with the Rockwall County Sheriff’s
office, was working the evening shift during the time that appellant’s rental car was
determined to arrive in Rockwall County. Saric was instructed to watch for
appellant’s rental car. At some point, Saric observed appellant commit a traffic
violation and stopped his car. Saric noticed that appellant was very nervous. Saric
asked appellant for permission to search the car. Appellant denied consent to search.
Soon after Saric stopped appellant’s car, a K-9 officer arrived on scene with
his drug-sniffing dog. The dog quickly alerted to a narcotic odor which gave Saric
probable cause to search the car. See Harrison v. State, 7 S.W.3d 309, 311 (Tex.
App.—Houston [1st Dist.] 1999, pet. ref’d) (holding that “when a trained and
certified narcotics dog alerts . . . to . . . contraband, probable cause exists”).
Saric located three coolers in the trunk of the car. Once opened, Saric saw they
contained vacuumed sealed bags labeled “marijuana and THC.” Saric also found
receipts inside the packaging that showed the narcotics were purchased in Colorado.
Appellant was subsequently arrested.
The drugs were taken to the sheriff’s office and later sent for testing at the
Armstrong Laboratory in Arlington. According to the lab, the sealed bags contained
THC and marijuana. In total, the THC weighed 333.7 grams. The marijuana weighed
3.65 pounds.
Because the sheriff’s office received information that appellant had additional
drugs in his home, officers went to appellant’s home hours after he was arrested. The
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officers obtained consent to search from the other adult resident at appellant’s home
and conducted a search. In appellant’s bedroom closet, officers found a cooler that
looked like the cooler seized from appellant’s car. The cooler in the bedroom
contained sealed bags that looked like the bags seized from appellant’s rental car.
The bags were labeled “THC and marijuana.” Officers also found baggies and a scale
in the closet.
Appellant was subsequently charged with the first-degree felony offense of
manufacture or delivery of a controlled substance in penalty group 2 for the drugs
found in his rental car. Appellant requested a jury trial. The jury found appellant
guilty and sentenced him to twenty years’ imprisonment.
II. DISCLOSURE OF SOURCE INFORMATION
In his second issue, appellant claims the trial court erred by denying his
motion for disclosure of the informant’s identity.
A. Standard of review
A trial court’s ruling on a motion to disclose the identity of a confidential
informant is reviewed for an abuse of discretion. Taylor v. State, 604 S.W.2d 175,
179 (Tex. Crim. App. [Panel Op.] 1980); see also Ford v. State, 179 S.W.3d 203,
210 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). The abuse of discretion
standard is a deferential standard of review that requires appellate courts to view the
evidence in the light most favorable to the trial court’s ruling. Briggs v. State, 560
S.W.3d 176, 184 (Tex. Crim. App. 2018). The trial court’s determination of
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historical facts is afforded almost complete deference, especially when those
determinations are based on assessments of credibility and demeanor. Furr v. State,
499 S.W.3d 872, 877 (Tex. Crim. App. 2016) (describing standard in context of
rulings on motions to suppress). In determining whether the trial court abused its
discretion, an appellate court must not substitute its own judgment for that of the
trial court, and it must uphold the trial court’s ruling if it is within the zone of
reasonable disagreement. Burch, 541 S.W.3d at 820. “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, 865
(Tex. Crim. App. 2016). A trial court abuses its discretion only when no reasonable
view of the record could support its ruling. Int’l Fid. Ins. Co. v. State, 586 S.W.3d
9, 12 (Tex. Crim. App. 2019).
B. Applicable law
Texas Rule of Evidence 508 affords the State a privilege to withhold
disclosure of the identity of a person who has provided a law enforcement officer
information that relates to or assists in the investigation of a possible violation of
law. TEX. R. EVID. 508(a); Coleman v. State, 577 S.W.3d 623, 635 (Tex. App.—Fort
Worth 2019, no pet.). Yet, the privilege against disclosure in Rule 508 is subject to
an exception. TEX. R. EVID. 508(c); Bodin v. State, 807 S.W.2d 313, 317 (Tex. Crim.
App. 1991). The privilege does not apply in a criminal case “if the court finds a
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reasonable probability exists that the informer can give testimony necessary to a fair
determination of guilt or innocence.” See TEX. R. EVID. 508(c)(2)(A).
The defendant has the threshold burden of demonstrating that identity must
be disclosed, i.e., that the informant can give testimony pertinent to the defendant’s
guilt or innocence. Bodin, 807 S.W.2d at 318; Coleman, 577 S.W.3d at 635. Thus,
the defendant must show that the informant’s potential testimony would significantly
aid the defendant—mere conjecture about possible relevance is insufficient to meet
the threshold. And if the information from the informant was used only to establish
probable cause for a search warrant or if the informant “merely provided information
that led police to investigate a potential offense” and “was neither a participant in
the offense for which the accused was charged nor present when a search warrant
was executed or an arrest was made,” then the informant’s identity “need not be
disclosed because the testimony is not essential to a fair determination of guilt or
innocence.” Coleman, 577 S.W.3d at 635.
Once the defendant demonstrates the identity must be disclosed, the trial court
must give the State an opportunity to show, in camera, facts relevant to determining
whether the informant can supply that testimony. TEX. R. EVID. 508(c)(2)(C);
Haggerty v. State, 429 S.W.3d 1, 8 (Tex. App.—Houston [14th Dist. 2013, pet.
ref’d).
C. The trial court correctly ruled that the informant’s identity did not
need to be disclosed by the State.
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Here, the court held an in-camera hearing. After the hearing, the trial court
announced it found the informant “did not participate in the offense” and would “not
aid the defendant as it relates to the material allegations in this case regarding guilt
or innocence.” We have reviewed the record from the in-camera hearing. Our review
indicates the informant was not a participant in the offense, nor was the informant a
witness to any events occurring during Saric’s stop of appellant’s car. The informant
merely provided information that led to Saric’s stop of appellant’s car in Rockwall
County. The trial court correctly ruled the informant’s identity did not need to be
disclosed by the State.
We overrule appellant’s second issue.
III. ADMISSION OF EVIDENCE DURING PUNISHMENT
In his third issue, appellant argues that photographs of the packages of THC
and marijuana found in his residence should not have been admitted during the
punishment stage of his trial because the contents of the packages had not been tested
to confirm the contents were indeed illegal narcotics.
Article 37.07, section 3(a) of the Texas Code of Criminal Procedure governs
the admissibility of evidence during the punishment phase of a noncapital case. Sims
v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008); see TEX. CODE CRIM. PROC.
ANN. art. 37.07, § 3(a). Article 37.07, section 3(a)(1) provides that
evidence may be offered by the [S]tate and the defendant as to any
matter the court deems relevant to sentencing, including but not limited
to the prior criminal record of the defendant, his general reputation, his
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character, an opinion regarding his character, the circumstances of the
offense for which he is being tried, and . . . any other evidence of an
extraneous crime or bad act that is shown beyond a reasonable doubt
by evidence to have been committed by the defendant or for which he
could be held criminally responsible, regardless of whether he has
previously been charged with or finally convicted of the crime or act.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1). Evidence is “relevant” to a
punishment determination if that evidence will assist the factfinder in tailoring an
appropriate sentence in a particular case. Sims, 273 S.W.3d at 295; see Henderson
v. State, 29 S.W.3d 616, 626 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).
Detective Chris Cooper with the Rockwall County Sheriff’s office testified
during the punishment phase of the trial. Cooper has been employed as a narcotics
detective since 2011.
A few hours after Saric arrested appellant, Cooper and a few other officers
conducted a search of appellant’s home. Cooper viewed the cooler and drugs found
in appellant’s rental car before he conducted the search. During the search, Cooper
found a cooler in appellant’s closet. The cooler looked identical to the one seized
from appellant’s rental car. Upon opening the cooler, Cooper found boxes stamped
with the labels THC and marijuana. Cooper also found baggies and a scale inside of
appellant’s closet.
Appellant does not complain that this evidence was not relevant to his
punishment. Nor, does appellant argue that the boxes of drugs found in his closet
were not his. Rather, appellant complains about the admission of the drug evidence
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because the “items had not been tested.” We note, however, Cooper conducted a
presumptive test on the drugs found in appellant’s closet, and the test indicated the
contents were narcotics. Additionally, the cooler, boxes, and sealed packages in
appellant’s closet were identical in appearance to the items seized from appellant’s
rental car. Moreover, lab tests confirmed the sealed packages found in appellant’s
car contained THC and marijuana.
We also note Cooper testified he was aware that the State of Colorado requires
boxes containing THC and marijuana to contain the stamp he observed on the boxes
in appellant’s closet. And Cooper testified that due to his experience and training as
a narcotics detective, he believed the contents of the cooler found in appellant’s
closet were THC and marijuana.
Based on Cooper’s testimony, the trial court could have found the evidence
of the additional drugs found at appellant’s home relevant to sentencing for the
offense of manufacturing or delivery of a substance in penalty group 2. Considering
the evidence at issue, we conclude that it was within the zone of reasonable
disagreement for the trial court to admit this evidence.1 We overrule appellant’s third
issue.
1
We note the trial court instructed the jury that it could not consider evidence of an extraneous offense
in assessing punishment unless the jury was satisfied beyond a reasonable doubt that the extraneous offense
was attributable to the defendant. See Harrell v. State, 884 S.W.2d 154, 160 (Tex. Crim. App. 1994).
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IV. CONCLUSION
Having overruled appellant’s two issues, we affirm the trial court’s judgment.
/Robert D. Burns, III/
Do Not Publish ROBERT D. BURNS, III
Tex. R. App. P. 47.2(b) CHIEF JUSTICE
230044F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ROBERT PROCSAL, JR., Appellant On Appeal from the 382nd Judicial
District Court, Rockwall County,
No. 05-23-00044-CR V. Texas
Trial Court Cause No. 2-20-0256.
THE STATE OF TEXAS, Appellee Opinion delivered by Chief Justice
Burns. Justices Reichek and Kennedy
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered June 13, 2024
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