Andrew v. State , 558 S.W.2d 876 ( 1977 )

OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Presiding Judge.

Our majority opinion on original submission is withdrawn and the following is substituted in lieu thereof. The appeal was taken from a conviction for robbery by assault with a firearm under the former Penal Code. Punishment was assessed by the jury at life imprisonment.

The sufficiency of the evidence is unchallenged.

On rehearing appellant urges reconsideration of his contention that the trial court committed reversible error in failing to require the prosecution to reveal the name of a confidential informer, a material witness.

It is well established that unless the informer participated in the offense, was present at the time, or was otherwise shown to be a material witness to the transaction or as to whether the defendant knowingly committed the act charged, his identity need not be disclosed. Barber v. State, 511 S.W.2d 937 (Tex.Cr.App.1974), and cases there cited. The appellant recognizes this rule, but argues the evidence in the instant case shows that the informer was present and was a material witness to the transaction. In support thereof, appellant calls attention to the testimony of Officer John Crosby and his attempt to perfect his bill of exception and the action of the trial court in denying him an opportunity to complete his bill of exception when he was on the verge of proving the informer could identify the persons seen running from the scene of the robbery.

During the trial, Officer John Crosby testified that partly as a result of information obtained from an informer he obtained a search warrant. On voir dire examination of Officer Crosby by appellant’s counsel Crosby was asked:

“Q Was this man that you talked to a fact witness to this offense?

“A To some of the facts of the offense, yes, sir.

“Q What is his name, please?

“A I can’t give you that, sir.”

The court then refused to require the State to divulge the name after the prosecutor stated the informer was not present in the store at the time of the robbery.

Appellant’s counsel then asked other questions of Crosby. The record reflects:

“MR. ZIMMERMANN: Let me ask this: Is it a fair statement to say that the confidential informant saw who really robbed the store running in a house?

“THE WITNESS: He saw.

“MR. ZIMMERMANN: He saw the man exit right after the robbery, the grocery store, run in a house and he is a fact witness of seeing him escape from the robbery?

“THE COURT: The court wants time to pass on that. In the morning will be enough time, enough time to get it in the record.”

Subsequently, the court announced its intention to allow the appellant to perfect his bill of exception to the refusal to order the disclosure of the name of the informer. First, the court stated:

“. . . The Court has been advised by the officer in charge that said witness is a confidential informant, and that he has promised said witness not to reveal his name; that he believes said witness’s life would be forfeited if the name were revealed. The Court is advised that the testimony of said witness would simply be that he saw three people running from the scene of the robbery at the time of the alleged robbery and that he would not be able to identify or name any of the said people but he did see where they went and told the officer the house in which said alleged fugitives went; and that is the extent of the testimony which said witness if forced to appear would give; is that correct, Mr. Officer?

“MR. CROSBY: Yes.”

It was then established that the court had obtained this information in an ex parte meeting with the prosecutors and Officer Crosby, at which appellant’s counsel was not present.

Appellant’s counsel then sought to perfect his bill of exception by interrogating Officer Crosby as to the information received from the informant. He then introduced the search warrant affidavit, which in part reflects:

“I have been informed of the foregoing setout facts by a citizen of the City of Dallas, Dallas County, Texas, who I know to be reliable, credible and trustworthy, who states the following facts: That he observed Two Negro Males and a Negro female in white shorts carrying what appeared to be a Shot Gun come running down The Alley from Duncan Grocery Store shortly after 9:00 P.M. August 27, 1973. That he observed these people cut across a vacant lot and run into the house at 1307 South Fitzhugh Avenue. That he observed a man known to him as Autry cruising the area of the Grocery Store before these people ran to 1307 South Fitzhugh and continued cruising for some time. He observed the Negro female and one of the Negro men get in a 1966 Grand Prix Pontiac, two-door Sedan parked at 1307 South Fitzhugh and leave. He observed these people return in twenty minutes. He observed both Negro men and the Negro female get in the 1968 Cadilac (sic) Sedan driven by the man known to him as Autry and drive South on South Fitzhugh Avenue approximately thirty minutes later. He states that these people did not take the Shot Gun with them.

“I have known this informant personally for the last eight years and he has on several occasions given me information that has proven to be reliable and has resulted in several convictions. I know this informant to be reliable, credible, and trustworthy in the past. . . .”

Appellant’s counsel then asked Crosby:

“Q What was the man’s name who you were told was involved in this robbery by your confidential informant?

“A He wasn’t sure of a name when I talked to him. I asked him if he knew the people’s names and he said it started with an A. I had previously found out through tax records that the car these people were in had been registered to a Walter Lee Autry. I asked him — at that time I said, ‘Does the name Autry sound like it’? He said, ‘Autry, or Andy or Andrew or something like that,’ and at that time I didn’t know anything about Robert Andrew (appellant).”

When appellant’s counsel sought to ask Crosby about other information he had received from the informer to demonstrate that the informer was a material witness to the transaction but which was “outside the affidavit,” the court announced, “This hearing is over.” The record then reflects:

“MR. ZIMMERMANN: Judge, I haven’t—

“THE COURT: I don’t care what you haven’t got. You are just horsing around here with this thing.

“MR. ZIMMERMANN: I object to the Court’s not allowing me to put in the record—

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“THE COURT: I told you to sit down. This hearing is over.

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“MR. ZIMMERMANN: Judge, may I have another hearing sometime to ask this officer if the name he was told was Autry, Andrew or Andy, why he put in the affidavit only Autry’s name?

“THE COURT: I have already ruled. This hearing is over.”

It is clear that the court terminated the bill of exception when appellant’s counsel was beginning to establish that the informer knew that one of the robbers’ names started with an A and could be Andrew, the name of the appellant, which would be inconsistent with the court’s statement as to what he learned in an ex parte meeting at which appellant’s counsel was not present. Despite the fact the trial court cut off the completion of the bill of exception, the informal bill of exception is sufficient to show the informer was a material witness to the transaction and that his identity should have been revealed. The facts are sufficient to bring the case within the holdings of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973).

Appellant’s motion for rehearing is granted. The judgment of affirmance is set aside. The judgment is now reversed and cause remanded.