Sanchez v. State

• Decision Date: 23 January 2003
• Docket Number: No. 01-01-00998-CR.,01-01-00998-CR.
• Citation: 98 S.W.3d 349
• Parties: Mario James SANCHEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

98 S.W.3d 349

Mario James SANCHEZ, Appellant, v. The STATE of Texas, Appellee.

No. 01-01-00998-CR.

Court of Appeals of Texas, Houston (1st Dist.).

January 23, 2003.

Norman J. Silverman, Houston, for Appellant.

Kevin P. Keating, Asst. Dist. Atty., Houston, for State.

Panel consists of Justice TAFT, ALCALA, and PRICE.^*

OPINION

TIM TAFT, Justice.

Appellant, Mario James Sanchez, pled guilty without an agreed recommendation to possession with intent to deliver at least 400 grams of cocaine. Following a presentence investigation, the trial court assessed punishment at 15 years in prison and a $5,000 fine. We determine (1) whether appellant's open guilty plea waived his appellate challenge and (2) whether the trial court erred in denying appellant's motion to disclose a confidential informant. We reverse the judgment and remand the cause.

Background

A. The Facts

The factual background comes from testimony on appellant's motion to disclose the identity of a confidential informant. For a year, appellant had socialized with and bought marihuana from a man he knew only as "Ramsey." In August 2000, Ramsey telephoned appellant, offering a kilogram of cocaine at a good price. Appellant testified that he initially refused, but after Ramsey telephoned him a third time, appellant finally agreed to meet Ramsey at a gas station. Appellant admitted that he brought $16,000 at Ramsey's instruction, but claimed that he intended to buy marihuana with that money, not cocaine.

Appellant drove to the parking lot of a gas station where he and Ramsey had met before. Ramsey, who was sitting in the passenger seat of a car that another man was driving, got out of the car and approached appellant. Appellant did not know the other car's driver. Ramsey got into appellant's car and began speaking about the cocaine. Appellant claimed that he again balked at buying cocaine. Ramsey instructed appellant to drive to another parking lot, where the other car's driver would meet them. Appellant complied.

Appellant and Ramsey met the other driver at the second parking lot and got into that man's car. For a short while, Ramsey and the driver spoke in Spanish, which appellant did not understand. The driver then passed a box containing the kilogram of cocaine to Ramsey, who showed it to appellant. Appellant claimed that he again refused the purchase. However, he testified that Ramsey pressured or enticed him, by at least three times saying things like the driver was a "big guy" whom "we need to take care of" and that "we are already here with this [cocaine and] I don't know what we're supposed to do." The driver never said a word to appellant, but spoke to Ramsey in Spanish before Ramsey allegedly enticed appellant and also witnessed Ramsey's subsequent discussions with appellant. Appellant eventually gave the $16,000 to Ramsey, who gave the money to the driver and the cocaine to appellant. Appellant got in his car and drove off.

Houston Police Department Narcotics Division Officers Bradley and Pena participated in surveillance of the transaction in the second parking lot. Officer Bradley testified that he knew one of the individuals in the car in which the sale took place, but the trial court sustained the State's objection to disclosing whether that person was the driver or Ramsey. Officer Bradley observed appellant from the officer's position in the second parking lot. Officer Bradley believed that appellant bought cocaine. However, there was no eavesdropping device in the car in which the transaction occurred, and neither officer could see or hear any of the negotiations or the sale itself.

Houston Police Department Officers Mouser and De la Cruz had been waiting in a marked police car near the second parking lot to support Officers Bradley and Pena. As appellant left the parking lot, Officer Bradley instructed Officers Mouser and De la Cruz to stop appellant after first obtaining independent probable cause.¹ All four officers claimed that Officers Mouser and De la Cruz pulled appellant over after observing him violate several traffic laws. Appellant denied violating any traffic laws. Appellant pulled his car over, and the officers parked their car and began approaching appellant on foot; however, appellant fled by car before the officers reached him. Appellant eventually hit a dead end and had to abandon his car. The pursuing officers captured appellant and discovered the cocaine, which fell or was thrown to the ground as appellant ran. Neither Ramsey, nor the driver, nor anyone who could be classified as a confidential informant, was present when appellant fled or was apprehended.

Unlike appellant, Ramsey and the driver were not stopped as they left the parking lot. Appellant testified that he had learned since the incident that Ramsey and the driver were working for the State. However, despite hiring an investigator, appellant could not locate Ramsey.

B. The Motions and Hearings

To support his entrapment defense, appellant moved pretrial for disclosure of any informant who participated in the cocaine transaction. On December 14, 2000, at a hearing on that motion, defense counsel clarified that he wanted to know whether a confidential informant or police officer was the unknown driver of the other car. Counsel again stated that he needed to know that individual's identity for his entrapment defense. The prosecuting attorney at the time of this hearing denied that the person who had delivered the cocaine was either an informant or an officer. The trial court denied appellant's motion.

Nonetheless, the trial court again took up appellant's confidential-informant motion at a pretrial hearing on March 19, 2001. The trial court may have reconsidered the motion because appellant had alleged in a motion for continuance filed after the initial ruling that the newly assigned prosecuting attorney had since admitted that an informant had been involved. At the March 19 pretrial hearing, appellant and Officers Bradley, Mouser, De la Cruz, and Pena testified to the information set out in the factual section above. Following their testimony, appellant again requested disclosure of the identity of any informants or cooperating individuals who had delivered the cocaine to support his entrapment defense. The trial court deferred a ruling until the following morning.

The next morning, appellant re-urged his confidential-informant motion, arguing that "the only witness that could ... shed any light on whether he could give evidence or not would be the informant himself. ... [M]y client alleged that he was somewhat pressured ... and ... if the idea for the crime is hatched in the mind of the State's officers or their agents, then we're entitled to a charge on that entrapment but we need a witness to support it and the — obviously my client can testify but the — the testimony of the person that was in the car that engaged in the negotiations is critical...." Appellant added that he did not object to an in camera hearing to question the informant. The trial court deferred conducting an in camera hearing or ruling on the confidential-informant motion.

Following jury selection, the trial court held an in camera hearing at which it questioned Officers Pena and Bradley. That volume is under seal. It is evident from the sealed testimony that an informant was involved in the sale to some extent, that Ramsey contacted the informant about the sale, and that the informant was actually present at the sale in the second parking lot.

When the trial court later asked appellant to announce ready for trial, appellant responded that he needed a ruling on his confidential-informant motion. The trial court ordered the confidential-informant motion carried with the case. Appellant objected, asking the trial court to rule then because "if we're going to get the informant's identity we need to have it so [that] we can start trying to get him here." The trial court then denied the confidential-informant motion. Appellant immediately advised the trial court that he wished to plead guilty.

Before appellant pled, the trial court ordered a short recess. Any discussions at that recess were unrecorded. After that recess, the trial court changed its ruling and ordered the State to produce the informant's name. The State declined, and appellant immediately moved to dismiss the indictment. The trial court denied appellant's dismissal motion and stated, "The Court will take this under consideration." The trial court then ordered another recess. Any discussions during the second recess were also unrecorded. Immediately after the second recess, the trial court admonished appellant, who then pled guilty. During the plea proceedings, the trial court noted that it had — apparently during the second recess — withdrawn its ruling ordering the State to disclose the confidential informant's identity.

Waiver

Relying on Young v. State, the State initially claims that appellant's open guilty plea waived any appellate complaint concerning the ruling on appellant's confidential-informant motion. See 8 S.W.3d 656 (Tex.Crim.App.2000). We disagree.

"[A] valid plea of guilty ... `waives' or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error." Young, 8 S.W.3d at 667. In the words of our sister court of appeals, there must usually be a nexus — temporal or otherwise — between the error and the judgment of guilt. See Brink v. State, 78 S.W.3d 478, 484 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd).

Appellant objected to the trial court's ordering the confidential-informant motion carried with the case. When the trial court later denied the confidential-informant motion, appellant immediately asked to plead guilty. When the trial court later ordered disclosure and the State refused, appellant immediately moved to dismiss the indictment. Although we do not know what transpired during the recess at which ...