Varela v. State

• Decision Date: 08 February 1978
• Docket Number: No. 52959,52959
• Citation: 561 S.W.2d 186
• Parties: Ernesto Ortega VARELA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 186

561 S.W.2d 186

Ernesto Ortega VARELA, Appellant,

v. The STATE of Texas, Appellee.

No. 52959.

Court of Criminal Appeals of Texas, En Banc.

Feb. 8, 1978.

F. Terry Callahan, San Antonio, for appellant.

Ted Butler, Dist. Atty., E. Dickinson Ryman, Sid W. Conwan, Jr., and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

With the exception of the two footnotes contained therein which this writer has inserted, the following opinion was originally prepared by the late Judge Howard P. Green, a Commissioner of this court. In writing for the majority, I adopt Judge Green's opinion as that of the court.

"This is an appeal from a conviction by a jury for the offense of sale of heroin. Punishment was assessed by the court at twelve (12) years.

The sufficiency of the evidence is not challenged.

The State's evidence reflects that on the afternoon of June 15, 1972, appellant sold heroin to undercover Officer Albert Chevera of the San Antonio Police Department. On the date of the transaction Officer Chevera drove with his informant Jimmy Levine a/k/a Jimmy Martinez to the corner of Somerset and Stonewall in San Antonio. Officer Chevera and Levine parked the car and walked over and initiated a conversation with appellant. During the conversation, appellant asked Officer Chevera if he wanted to "score" some heroin. Chevera said yes. The three men got into Chevera's automobile and appellant directed Chevera to drive to the corner of Guadalupe and Cibolo. While en route, Officer Chevera gave appellant $30.00 as payment for the heroin. Appellant sighted "El Chueco" at the corner of Guadalupe and Cibolo and motioned him to the car. Appellant and "El Chueco" had a conversation which was followed by instructions from "El Chueco" to drive all four of them to the 200 block of Elvira. Upon arrival at Elvira, "El Chueco" exited the car. Shortly thereafter, he returned, handed something to appellant, and left. Appellant then handed a balloon containing heroin to Officer Chevera. Appellant testified at trial that the crime was initiated by Officer Chevera and Jimmy Levine and that appellant was not predisposed to commit the crime but was induced to do so by Levine and Officer Chevera. Levine was not present to testify at the trial, and the record discloses that the prosecution did not know where he was or how to contact him.

In grounds of error one and four appellant contends the State was required to produce the absent witness Jimmy Levine at trial and the State's failure to do so violated appellant's right to compulsory process as guaranteed by the Sixth Amendment.

It is well established that the identity of an informer must be disclosed when he participated in the offense, or was present at the time of the occurrence of the crime, or would be a material witness as to whether or not the accused knowingly committed the offense. James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973); Carmouche v. State, 540 S.W.2d 701 (Tex.Cr.App.1976); see also Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Appellant was aware of the identify of Levine as the informer prior to the instant trial. The record reflects the State fulfilled its obligation by fully disclosing any knowledge it had of the whereabouts of Levine.

The Sixth Amendment does not require that the State or government be successful in trying to subpoena witnesses. All that is required is that process issue and due diligence be exercised in a good faith attempt to secure service of process. Sigard v. State, 537 S.W.2d 736 (Tex.Cr.App.1976); White v. State, 517 S.W.2d 543 (Tex.Cr.App.1974); United States v. Bolden, 461 F.2d 998 (8th Cir. 1972); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968). Appellant does not allege nor does the record reflect that the State did not make a diligent good faith attempt to secure service of process on the absent witness. As in Sigard, supra, the record reflects that the State and appellant were unsuccessful in their efforts to locate Levine and secure his presence at the trial.

Therefore, grounds of error one and four are predicated solely upon the contention that the State played a material role in securing the witness' disappearance. The basis of appellant's contention stems from the testimony of Preston Slocum, elicited during the hearing on appellant's motion for new trial. Slocum, who was not present at the trial, testified at the hearing on the motion as follows:

"Q (Appellant's Counsel): Did you ever have occasion to talk to Mr. Levine about the advisability of him staying in San Antonio, Bexar County, Texas?

"A (Lt. Slocum): Yes, sir.

"Q What were the facts surrounding that conversation?

"A He said we told him the raid was going to go down and he said he was going to leave town but didn't have any money. I told him I thought that was a good idea. I still think it was a good idea. He said he didn't have any money. I gave Detective Doyal $75.00 for eating money.

"Q You know when you paid Officer Doyal that $75.00 that that was going to be given to Mr. Levine; he was going to use that to leave town?

"A I sent it out to the man. He said he was leaving town. Now, whether he was going to or not, I don't know.

"Q But, you knew it was to be his advantage to leave town?

"A If I was in his shoes, I would have left town I guarantee you.

"Q And you advised him of the big bust before it went down, right?

"A Yes, he was advised."

Sigard v. State, supra, is controlling. ¹ Sigard also contended he was denied compulsory process of witnesses based upon the same act complained of by appellant.

In Sigard we stated:

"Further, we cannot reach the conclusion that Lt. Slocum had the $75.00 delivered to Levine two and one-half years prior to the actual trial of the case in order to conceal evidence and deprive the appellant of the right of compulsory process of witnesses. The appellant had not even been arrested, and no indictment had ever been returned at the time. The record reflects that Slocum's reasons were dictated by his concern for Levine's personal safety and security which would make it a 'good idea' for Levine to leave town prior to the narcotics roundup. As stated in the concurring opinion on the State's motion for rehearing in White (517 S.W.2d 543):

" ' . . . It is certainly common knowledge that lives of informers in narcotic cases are in constant danger. The conversation appears to have taken place shortly after Leveine's (sic) activities as an informer had been completed. Upon Leveine's (sic) suggestion that he "needed some money to eat" Slocum sent him $75.00 by one of his officers. The amount involved was not sufficient to allow him to travel any great distance or to keep him in food for long.'

Slocum's action cannot be seen as a calculated attempt to deprive this appellant of compulsory process because of Levine's unavailability two and one-half years later. Indeed, Levine's appearance as a witness at future trials would seem to be more assured and likely if he sought safety out of town at the time than if he remained in town at the mercy of alleged narcotics pushers who might be released on bond.

"Further, for the same reasons, we cannot conclude that the appellant was deprived of due process or that the court erred in overruling the motion for the State to produce Levine, his motions to abate or dismiss the prosecution, the motion to suppress evidence or the third motion for continuance based on the absence of Levine, as were the earlier motions. We are here confronted with a case that long pended on the docket of the court while both sides made a diligent effort to locate Levine without success and there was no showing that if the case was continued there would be any chance of locating Levine, and further, neither the State nor the appellant knew for sure what Levine's testimony would be. Under the circumstances, the trial court cannot be faulted for proceeding with the trial almost three years after the alleged offense and over two years after return of the last indictment."

In the instant case appellant also had not been arrested nor had an indictment been returned at the time Levine received the $75.00. Appellant also did not go to trial until almost three years after the payment had been made.

Further, it is highly unlikely that the mere absence of money would dissuade an informer whose life was in jeopardy from leaving town. Lt. Slocum's testimony reflects that Levine had aided the police in making over one hundred cases against narcotic dealers. Levine would justifiably fear reprisals from numerous individuals. It is obvious that Levine's leaving town was precipitated by his knowledge of the police's intention to arrest the very individuals against whom Levine had helped make cases and not by the State's token $75.00 payment. ² Appellant's grounds of error one and four are overruled.

Further, for the same reasons, the trial court did not err in overruling appellant's motion to suppress the evidence of the sale of the heroin by appellant, which motion was based on the State's having "made unavailable a material witness to the alleged sale . . .."

Appellant's ground of error number two is overruled.

Appellant contends in his third ground the trial court erred in denying his first motion for continuance.

On the day the case was called for trial, appellant presented to the court his sworn motion for a continuance based upon the absence of witnesses Slocum and Levine. A hearing was had on the motion after which it was denied.

Appellant's motion for continuance reflects that appellant had engaged the services of a private investigator as of July 18, 1975, to locate witnesses Levine and Slocum. Appellant, however, did not cause citation to be issued for the missing witnesses until September 2, 1975, the day before the trial on the merits began. Additionally, the motion for continuance was not filed until the day...