Lopez v. State, No. 56827

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation574 S.W.2d 563
Docket NumberNo. 3,No. 56827
PartiesMelchor Tafoya LOPEZ, Appellant, v. The STATE of Texas, Appellee
Decision Date20 December 1978

Page 563

574 S.W.2d 563
Melchor Tafoya LOPEZ, Appellant,
v.
The STATE of Texas, Appellee.
No. 56827.
Court of Criminal Appeals of Texas, Panel No. 3.
Dec. 20, 1978.

Page 564

Dick Stengel, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and Douglas Gelo, Asst. Dist. Atty., El Paso, for the State.

Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ., and CORNELIUS, Commissioner.

OPINION

CORNELIUS, Commissioner.

A jury convicted appellant of the offense of delivery of heroin. Punishment, enhanced by prior convictions, was set at confinement for life. The sufficiency of the evidence is not challenged.

According to the State's evidence, Detective Walter Mollier received information from a confidential informer that a person known as Wetto had some heroin for sale. Acting on that information, the officer and the informer went to a location in downtown El Paso in an attempt to locate Wetto. They were unable to find him, but while they were there they noticed the appellant standing on the south side of the curb between Stanton and Kansas Streets. When they saw appellant he motioned for them to come over to him. They did so and inquired of him if he knew where they could find Wetto. The appellant replied that he didn't know why they were looking for Wetto because "he deals for me, the heroin that he is selling is my heroin." Appellant then said, "So why don't you go ahead and buy the heroin from me?" Officer Mollier then made the purchase.

Four grounds of error are urged for a reversal. The first asserts that the trial court erred in overruling appellant's motion to disclose the identity of the State's informer and in refusing to allow appellant's counsel to cross-examine the State's witnesses concerning their arrangements and relationships with the informer.

Page 565

The accused is entitled to a disclosure of the identity of an informer where the informer took a material part in bringing about the offense or was present when it occurred and might be a material witness as to whether or not the accused committed the offense. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Acosta v. State, 403 S.W.2d 434 (Tex.Cr.App.1966); Bosley v. State, 414 S.W.2d 468 (Tex.Cr.App.1967). But the record here reveals that appellant and his counsel knew the informer, and his identity was revealed on several occasions during the trial. Officer Mollier testified that the informer was Fernando Regalado. Previously appellant's counsel had requested that Mr. Regalado be placed under the rule for the exclusion of witnesses in the event he appeared in the court room. There was no indication that appellant could not have produced Mr. Regalado as a witness or that his testimony was for any reason unavailable. In those circumstances, the action of the court in denying appellant's motion was not error. Stuart v. State, 456 S.W.2d 129 (Tex.Cr.App.1970).

In support of the contention that he should have been allowed to cross-examine the State's witnesses as to the arrangements or relationships they had with the informer, appellant cites numerous cases which enunciate the rule that an accused has the right to explore the nature of any agreement or relationship between the prosecution and a witness who has an incentive for cooperating with the government. See, for example, United States v. Mayer, 556 F.2d 245 (5th Cir. 1977). The rule is based upon the right of the accused to test or attack the credibility and the bias or prejudice of a witness against him. But the rule does not apply in this case because the informer was not a witness. As he was not called to testify, his credibility, bias or prejudice was not in issue and the area sought to be explored by appellant's counsel clearly would have been irrelevant. See United States v. Ramirez, 533 F.2d 138 (5th Cir. 1976), cert. denied, 429 U.S. 884, 97 S.Ct. 235, 50 L.Ed.2d 165 (1976).

Ground of error number two urges that the trial court should have submitted appellant's requested jury charges on the defense of entrapment and on accomplice testimony.

If criminal design originates in the mind of an officer and he induces a person to commit a crime...

To continue reading

Request your trial
41 practice notes
  • Soto v. State, 464-83
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 19, 1984
    ...and to judge whether that involvement provided only the opportunity for the criminal mind to commit the offense. Lopez v. State, 574 S.W.2d 563 (Tex.Cr.App.1978). Such an examination must cover two "The first area of inquiry should be the specific case at bar. A search must be made to deter......
  • Brasfield v. State, No. 61871
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 13, 1980
    ...this, the Court will overrule your motion." We find no merit to the contention now advanced and it is overruled. Lopez v. State, 574 S.W.2d 563, 565 (Tex.Cr.App.1978); Bernard v. State, 566 S.W.2d 575, 577 (Tex.Cr.App.1978); Andrew v. State, 558 S.W.2d 876, 877 (Tex.Cr.App.1977); Hardeman v......
  • McAfee v. State, No. 13-03-420-CR.
    • United States
    • Court of Appeals of Texas
    • October 26, 2006
    ...of the accused and law enforcement merely furnished the opportunity or aided the accused in the commission of the crime. Lopez v. State, 574 S.W.2d 563, 565 6. One of the assisting officers, patrolman Walter Jameson, testified as follows on cross-examination: [Defense Counsel]: Okay. The pu......
  • Satterwhite v. State, No. 67220
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 17, 1986
    ...between the appellant and Bell. A charge on a defensive theory is only required when the evidence raises that issue. Lopez v. State, 574 S.W.2d 563 (Tex.Cr.App.1978). Furthermore, the evidence presented at trial of the appellant's conduct alone was sufficient to sustain the conviction; no c......
  • Request a trial to view additional results
41 cases
  • Soto v. State, No. 464-83
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 19, 1984
    ...and to judge whether that involvement provided only the opportunity for the criminal mind to commit the offense. Lopez v. State, 574 S.W.2d 563 (Tex.Cr.App.1978). Such an examination must cover two "The first area of inquiry should be the specific case at bar. A search must be made to deter......
  • Brasfield v. State, No. 61871
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 13, 1980
    ...this, the Court will overrule your motion." We find no merit to the contention now advanced and it is overruled. Lopez v. State, 574 S.W.2d 563, 565 (Tex.Cr.App.1978); Bernard v. State, 566 S.W.2d 575, 577 (Tex.Cr.App.1978); Andrew v. State, 558 S.W.2d 876, 877 (Tex.Cr.App.1977); Hardeman v......
  • McAfee v. State, No. 13-03-420-CR.
    • United States
    • Court of Appeals of Texas
    • October 26, 2006
    ...of the accused and law enforcement merely furnished the opportunity or aided the accused in the commission of the crime. Lopez v. State, 574 S.W.2d 563, 565 6. One of the assisting officers, patrolman Walter Jameson, testified as follows on cross-examination: [Defense Counsel]: Okay. The pu......
  • Satterwhite v. State, No. 67220
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 17, 1986
    ...between the appellant and Bell. A charge on a defensive theory is only required when the evidence raises that issue. Lopez v. State, 574 S.W.2d 563 (Tex.Cr.App.1978). Furthermore, the evidence presented at trial of the appellant's conduct alone was sufficient to sustain the conviction; no c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT