Delapaz v. State
| Decision Date | 28 March 2007 |
| Docket Number | No. 05-05-00660-CR.,05-05-00660-CR. |
| Citation | 228 S.W.3d 183 |
| Parties | Mark Anthony DELAPAZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Before Justices WRIGHT, LANGMIERS, and MAZZANT.
Mark Anthony Delapaz appeals his conviction for tampering with or fabricating physical evidence. In eight issues, he alleges the district attorney improperly appointed a de facto attorney pro tem; indictment error; error in the denial of a severance; error in the admission of evidence; charge error; and Brady violations. We affirm the trial court's judgment.
Appellant does not challenge the legal or factual sufficiency of the evidence to sustain his conviction. Because the background and facts are pertinent to the issues, however, we shall review the applicable facts.
This case concerns false statements appellant allegedly made and presented to a Dallas County magistrate on October 23, 2001, in obtaining a search warrant for the residence of Jose Mendoza at 5972 Marine Way, in Dallas, Texas. The indictment alleged appellant obtained the search warrant based on an affidavit in which he falsely alleged he had previously received information from a reliable and confidential informant, he "had received information in the past from the said confidential and reliable informant about persons who traffic drugs in the Dallas County area and on each and every occasion," and the informant had proven "to be true, reliable and correct."1
The identity of the confidential informant referred to in the Mendoza search warrant affidavit was an important issue in the case. In a pretrial hearing, the trial court ruled the State had to prove the identity of the confidential informant.2 In charging the jurors, the trial court told them that they had to unanimously agree on the identity of the informant before they could determine whether appellant's statement in the Mendoza search warrant affidavit was false.3
Enrique Alonso was appellant's "main confidential informant." Alonso and appellant first met in July of 1999 after appellant arrested him on narcotics-related charges. Alonso subsequently became a confidential informant for appellant in order to "work off" those charges. After he "worked off" the charges, Alonso continued to operate as a confidential informant for appellant in return for cash payments. Prior to the events which gave rise to the indictment in this case, Alonso was involved in over seventy transactions as a confidential informant for appellant.
Alonso also introduced appellant to other informants, including Roberto Gonzalez, Roberto Santos, Daniel Alonso, Daniel Cavazos, and Jose Ruiz. Appellant used Jose Ruiz, like Alonso, as a confidential informant by allowing him to "work off" a case. After the charges were resolved, Ruiz, like Alonso, continued to serve as a confidential informant in exchange for cash payments. In total, Ruiz was involved in approximately twenty-four transactions as a confidential informant for appellant.
In order to prove the confidential informant behind the Jose Mendoza search warrant was Alonso and not Ruiz and that Alonso was unreliable, the State introduced evidence of six drug arrests made before October 23, 2001, involving Jacinto Mejia, Hugo Rosas, Emigdio Esparza, Daniel Licea, Yvonne Gwyn, and Estanislao Mendoza.
Jacinto Mejia was working at his carburetor repair shop when he was arrested on May 22, 2001. On that day, police officers recovered fifteen packages of a white powdery substance from the back seat of a van parked at Mejia's place of business.
Appellant's arrest report states he and a confidential informant arranged to buy cocaine from Mejia at the carburetor repair shop. The arrest report also states the informant met Mejia at the shop and Mejia handed him two large packages of cocaine. Mejia also allegedly told the informant he had more packages of cocaine hidden in a truck. Mejia testified these statements were not true. Mejia told the jury that after he was jailed, he never saw appellant, and appellant did not question him about the substance that was seized from the van.
All of the packages seized from the van were received at the Southwestern Institute of Forensic Sciences (SWIFS) on August 22, 2001, and laboratory tests were completed on October 5, 2001. According to the laboratory reports from SWIFS,4 cocaine had been sprinkled between the layers of the wrapping of some packages, while other packages contained no controlled substance. However, the amount of cocaine was "insufficient to quantitate." Nancy Weber, a SWIFS chemist, discovered that most of the powder was gypsum, also known as pool chalk or "sheetrock."5 All of the test results in the Mejia case were faxed to the Dallas Police Department on October 9, 2001. Appellant's confidential informant records show that on May 29, 2001, Alonso was paid $20,000 cash in connection with the Mejia case.
On June 29, 2001, Hugo Rosas went to a Dallas location seeking day labor. A man approached him offering "good money" for work. Rosas accepted the offer and got into the man's car. They went to a gas station where the man stopped for a few minutes to talk to someone. The man then asked Rosas for assistance in delivering his car to a repair shop. Rosas followed the man's explicit directions in driving the car to the repair shop. When he turned at a designated exit, he was stopped by police. They found fifty-one packages of a powdered substance in the car.
Appellant's arrest report states Rosas met with the confidential informant and Rosas looked in the trunk of the car and said, Rosas told the jury this statement was not true. Appellant's report also states the informant met with Rosas at Laureland and Interstate 35. Rosas said this never happened. After Rosas was jailed for this offense, appellant never asked him about the arrest or the substance that was found in the car he was driving. Confidential informant records show that on August 2, 2001, Alonso was paid $35,000 cash in connection with the Rosas case.
More than fifty kilograms of a powdered substance believed to be cocaine were seized in connection with Rosas's arrest. According to the laboratory report from SWIFS, a total of fifty-one packages were analyzed. The seizure was brought to SWIFS on August 9, 2001, and testing was completed on September 4, 2001. Fourteen of the packages had a thin layer of cocaine near the top of the wrapping, but the amount was "insufficient to quantitate." The other packages did not contain any controlled substance.
The test results were faxed to the Dallas Police Department on September 13, 2001. In early September, Lieutenant Bill Turnage, appellant's supervisor in the Narcotics Division of the Dallas Police Department, told appellant he did not trust Alonso. He asked appellant to "check him out again." Appellant subsequently reported that Alonso "checked out fine." After learning of the negative SWIFS test results in the Rosas case, however, Turnage ordered appellant to stop accepting information from and paying Alonso in drug cases. Turnage also ordered appellant to hand-deliver all large seizures in drug cases to SWIFS for analysis.
Emigdio Esparza was arrested on July 19, 2001. Two men in a brown car approached Esparza and offered to pay him "good money" for a painting job. He got into the car with the men. They told him that, before going to the work site, they wanted to go to a convenience store to get another car, which Esparza would drive to the work site. The men left Esparza in this car awaiting the arrival of the job boss. A man later arrived in a white car and asked Esparza if he was ready to go to the work site. The man asked Esparza for the keys to the car Esparza was driving. The man looked inside the trunk, closed it, and then told Esparza to follow him. Within the next ten minutes, Esparza was stopped by the police and placed under arrest. Of sixty-three packages seized from the car and received at SWIFS for analysis on August 9, 2001, one had less than a gram of cocaine; the remaining sixty-two contained no controlled substance. The test results, which were completed on September 20, 2001, were faxed to the Dallas Police Department on October 9, 2001. Appellant's confidential informant records show that, on September 23, 2001, Alonso was paid $50,000 in connection with the Esparza case.
Daniel Licea was arrested on August 7, 2001. On September 17, 2001, appellant personally delivered seventy-one packages of what was believed to be cocaine to the SWIFS laboratory for analysis. Tests were completed on September 26, 2001. The laboratory results, which were faxed to the Dallas Police Department on October 9, 2001, showed no trace of a controlled substance in any of the seventy-one packages.6
Appellant's confidential informant records show $26,900 was paid to Alonso for two first-degree felony offenses resulting in the seizure of 76,512.6 grams of what was believed to be cocaine. A total payment of $50,000 was authorized. A handwritten entry on appellant's expense report states: "Total paid is final payment due to analysis of drugs seized." Turnage believed this notation reflected appellant's acknowledgment of his order to stop using Alonso as a confidential informant.
Yvonne Gwyn was arrested on September 7, 2001, and thirty packages of what was thought to be cocaine were seized and submitted to SWIFS for analysis. On September 14, 2001, one day after the...
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