Page 56 - TPA Journal July August 2022

destroyed evidence is presumed to have done so
The Rule 508 burden is not a high one, and because the evidence was unfavorable to its case.
Appellee met his burden to make a plausible A similar presumption arises when a party
showing of how the informant’s information may controlling missing evidence cannot explain its
be important. When the trial court dismissed the failure to produce it.
case under Rule 508, the court had before it, not Thus, there was a plausible showing that the
merely speculation, but evidence. The evidence informant may have had information necessary to a
included: 1) there was an informant who was fair determination of Appellee’s guilt or innocence.
involved in a controlled buy with Espino; 2) Espino The burden was met, and the trial court did not
was not charged as a result of the controlled buy; 3) abuse its discretion in dismissing the case under
Espino was shot and killed by Alejandro, his fellow Rule 508.
drug dealer; 4) the State, through the Task Force,
vehemently and vigorously fought to prevent In its consideration of the evidence that was before
disclosure of any information relating to the the trial court, the court of appeals failed to give
informant; 5) after the parties agreed to the in deference to the trial court’s credibility
camera hearing, the Task Force suddenly forgot determination of the Task Force officers and failed
who the informant was and failed to document any to consider the consequent determination that their
information relating to the informant; 6) the Task untruthfulness, in combination with their previous
Force’s own policies and procedures require resistance to disclosure, made for a plausible
documentation; 7) nevertheless, during the in showing that the informant may have had necessary
camera hearing, the Task Force officers all testified information. We cannot say that the trial court’s
that the defense theory was possible that the finding—that a reasonable probability exists that
informant had told Alejandro of the controlled buy the informer can give testimony necessary to a fair
and Alejandro used the robbery as an opportunity to determination of guilt or innocence—fell outside
kill Espino; and 8) after the hearing, an e-mail was the zone of reasonable disagreement. The trial court
disclosed showing that the Task Force’s did not abuse its discretion. Because the trial court
commander did, in fact, know who the informant so found, and the State through the Task Force
was and that he would fight to prevent disclosure. officers elected not to disclose the informer’s
identity, on Appellee’s motion, “the court must
The trial court reasonably found that the Task Force dismiss the charges to which the testimony would
officers’ testimony—that they did not know who relate[.]” Tex. R. Evid. 508(c)(2)(A)(i). The trial
the informant was—was not credible. From the court’s dismissal was not erroneous, and we reverse
evidence that the Task Force officers were the judgment of the court of appeals and affirm the
untruthful to the court about the informant, and the judgment of the trial court.
evidence that the Task Force officers had strongly
resisted disclosure of information relating to the State v. Lerma, Tex. Crim. App., NO. PD-0075-
informant, the trial court’s conclusion that the 19 , November 24, 2021
informant had information affecting the capital ****************************************
murder case against Appellee was not ************************
unreasonable.

Such a conclusion is not arbitrary or completely
without reference to guiding rules and principles.
In civil cases, a party who has deliberately

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