Page 54 - TPA Journal July August 2022

failed to document the informant’s identity. The which asked:
trial court was skeptical but nevertheless heard
testimony from the Task Force officers. All of the Can an appellate court disregard the issue of error
officers claimed that they failed to make a record preservation so that the State has a remedy when a
of the informant’s identity, even though the Task capital murder case is dismissed because of the
Force’s policies and procedures required an State’s own actions in disappearing a confidential
informant’s information to be thoroughly informant?
documented. The Task Force officers admitted, Can an appellate court reverse a trial court’s
after the trial court posed the defense theory to dismissal under TRE 508 without ever addressing
them, that it was possible that the informant could the untrustworthiness of the State’s position that the
have potentially exculpatory information. State does not know the identity of the confidential
Combined with the fact that the State utilized every informant?
means available to resist disclosure of the
informant’s identity, the trial court found that the (preservation of error discussion omitted)
Task Force officers’ claim that they simply did not
know the informant’s identity lacked credibility. We overrule Appellee’s first ground for review.

Appellee filed a motion to dismiss pursuant to Rule Appellee’s second ground for review complains
508 which provides that, if the trial court finds that that the court of appeals erred in reversing the trial
there is a reasonable probability that the informant court’s dismissal pursuant to Texas Rule of
possesses information necessary to a fair Evidence 508 which provides, in pertinent part:
determination of guilt or innocence, once the (a) General Rule. The United States, a state, or a
“public entity elects not to disclose the informer’s subdivision of either has a privilege to refuse to
identity: (i) on the defendant’s motion, the court disclose a person’s identity if:
must dismiss the charges to which the testimony (1) the person has furnished information to a law
would relate[.]” TEX. R. EVID. 508(c)(2)(A)(i). enforcement officer or a member of a legislative
After the defense Rule 508 motion to dismiss was committee or its staff conducting an investigation
filed, the State disclosed an e-mail to the defense of a possible violation of law; and (2) the
and the trial court showing that, prior to the in information relates to or assists in the investigation.
camera hearing, the Task Force commander—who TEX. R. EVID. 508(a).
testified at the hearing that he did not know the In criminal cases: this privilege does not apply if
identity of the informant—did in fact know the the court finds a reasonable probability exists that
identity of the informant but would not disclose the the informer can give testimony necessary to a fair
identity to the defense. The trial court—considering determination of guilt or innocence. If the court so
the e-mail, the fact that the State exhausted every finds and the public entity elects not to disclose the
legal remedy possible, and the fact that the informer’s identity: (i) on the defendant’s motion,
testimony of the Task Force officers lacked the court must dismiss the charges to which the
credibility—granted Appellee’s motion to dismiss. testimony would relate.
The State appealed the dismissal, and the court of
appeals reversed after finding that the trial In this case, the public entity—the State through
court abused its discretion because it relied upon the Task Force officers—did not disclose the
speculation that the informant had exculpatory informer’s identity. Therefore, the trial court was
information instead of evidence in the record. We required to dismiss the case on Appellee’s motion
granted Appellee’s petition for discretionary review, if it found that “a reasonable probability exists that

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