William Jimmerson Scott v. the State of Texas

Affirmed and Memorandum Opinion filed August 29, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00407-CR

WILLIAM JIMMERSON SCOTT, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 21CR2404

MEMORANDUM OPINION

A jury convicted appellant William Jimmerson Scott of possession of a
controlled substance with intent to deliver, in an amount of four grams or more but
less than 200 grams. Appellant pleaded true to two prior enhancement offences,
and the trial court assessed punishment at imprisonment for 50 years. In one issue
appellant argues the trial court erred in overruling his motion to reveal the identity
of the confidential informant (CI) because the affidavit for the search warrant was
“flawed and made the confidential informant a necessary witness.” We affirm.
BACKGROUND

Appellant filed three motions to reveal the identity of the CI. In the first
motion appellant argued the State has “in its possession certain evidence obtained
through reliance on information provided by an informer.” Specifically, “drugs,
paraphernalia, handguns, and cell phone.” Appellant argued that reliance on the
information provided by the CI was not reliable because the informant’s
“credibility and reliability is questionable and highly unreasonable.” Appellant
then requested, citing Texas Rule of Evidence 508(c)(3), the State to be ordered to
reveal the name and location of the CI and information stemming from the CI.

In his second motion appellant argued that the State had possession of
information provided by the CI and used to obtain the search warrant. Appellant
argued the CI could give testimony necessary to a fair determination of guilt or
innocence of appellant. Appellant then requested, citing Texas Rule of Evidence
508(c)(2), the State to be ordered to reveal the name and location of the CI and, if
the State elects not to disclose such information, that the charges in this case be
dismissed.

In his third motion appellant argued the State had possession of “evidence
obtained through reliance on information provided by an informer. The evidence
consists of contraband, weapon(s).” Appellant argued again that reliance on the
information provided by the CI was not reliable because the informant’s
“credibility and reliability is questionable and highly unreasonable.” Appellant
then requested, citing Texas Rule of Evidence 508(c)(3), the State to be ordered to
reveal the name and location of the CI and information stemming from the CI.

Appellant further filed a motion to suppress arguing the “evidence was
seized after a search made on the basis of an invalid search warrant.” Appellant
argued the search warrant was invalid “because information was relied upon from
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an unreliable source.” Appellant argued that because the search warrant was
invalid, the seizure of evidence violated appellant’s constitutional rights under the
Fourth and Fourteenth Amendments of the United States Constitution, Article I,
Section 9 of the Texas Constitution, and article 38.23 of the Code of Criminal
Procedure.

Prior to trial appellant argued his motion to suppress and motions to disclose
confidential information and presented evidence to the trial court. Appellant called
a detective from the Galveston County Sheriff’s Office to testify. The detective
testified the issuance of the search warrant was assisted by information provided
by the CI and could not have been obtained without the CI’s information. The CI
was not present when the search warrant was executed or when the operation plan
for the execution of the search warrant was put together. Appellant was arrested
based on the execution of the search and arrest warrant. The detective testified he
knew appellant was the same person the CI identified as the individual involved in
the previous drug transactions based on the “totality of the circumstances,” even
though the CI was not present at the time of appellant’s arrest.

The detective testified the CI referred to appellant as “Wicked.” The CI
informed the detective that “this guy or this person” was selling narcotics out of
“this house.” Once the detective was able to identify who the CI was talking
about, the detective did research through the office’s record management system.
The detective looked at the address and phone number provided by the CI and
located appellant based on those items. The detective showed this information to
the CI and the CI advised that the individual, appellant, was Wicked, “the person
selling narcotics out of this home.” The detective then conducted surveillance to
determine whether appellant lived at the address and “continued the investigation
with the purchase of narcotics.” The detective did not “personally eyewitness the

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transaction.” The actual transactions were conducted between the CI and
appellant. The detective met with the CI four times on this case and did not
believe the CI to be under the influence of narcotics at those meetings. The CI was
paid, approximately twenty to forty dollars, prior to the issuance of the search
warrant. The CI was not “trying to work off [his or her] own cases.” The last time
the detective met with the CI was a “couple of days” before the execution of the
search warrant and the CI was not under constant surveillance during the time
period between the last meeting with the CI and the execution of the search
warrant.

Prior to the CI entering appellant’s home the detective searched the CI for
contraband. The detective testified the CI was used “exclusively for probable
cause.” Appellant was at the residence when the warrants were executed and
appellant was the sole occupant. The detective found cocaine and appellant’s cell
phone at the residence. The detective believed the CI was reliable and credible.
Prior to applying for the search warrant the detective showed a picture of appellant
to the CI and asked whether it was Wicked, and the CI confirmed it was.

In arguing to the trial court, appellant contended that because the CI was
paid money, the CI’s reliability and credibility is called into question and because
the detective could not have obtained the search warrant without information
provided by the CI the trial court should order the State to identify the CI under
Rule of Evidence 508(c)(2) and (c)(3), “because it is necessary for the jury to
assess the credibility of the [CI] in person under 508(c)(2) for a fair determination
of the guilt or innocence of [appellant], and also under 508(c)(3) to test whether the
[CI’s] credibility is reliable.” The trial court denied the motions to disclose
confidential informant and motion to suppress.

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GENERAL LEGAL PRINCIPLES

We review the trial court’s ruling on a motion to disclose identity of a
confidential informant under Rule 508 for an abuse of discretion. State v. Lerma,
639 S.W.3d 63, 68 (Tex. Crim. App. 2021); State v. Dunn, 611 S.W.3d 176, 179
(Tex. App.—Houston [14th Dist.] 2020, no pet.). Generally, the State has a
privilege to withhold the identity of any person who provided information relating
to, or assisting in, the investigation of a possible crime. Id. If it appears from the
evidence in the case, or from some other showing by a party, that an informant
may be able to give testimony necessary to a fair determination of a material issue
on guilt or innocence, and the State invokes the privilege, the judge must give the
State an opportunity to show in camera facts relevant to determining whether the
informant can, in fact, supply such testimony. See Tex. R. Evid. 508(c)(2). A
party requesting disclosure under 508 has the threshold burden to demonstrate that
the informant’s identity must be disclosed. Dunn, 611 S.W.3d at 179. The Rule
508 burden is not a high one, and a defendant’s burden is “to make a plausible
showing of how the informant’s information may be important.” Lerma, 639
S.W.3d at 70.

To preserve a complaint for appellate review, the record must show the
complaint was timely made to the trial court, the grounds were specifically stated
or were readily apparent, the complaint complied with the rules of evidence or
appellate procedure, and the trial court ruled or refused to rule on the complaint.
Tex. R. App. P. 33.1(a); see also Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim.
App. 1999). “Except for complaints involving fundamental constitutional systemic
requirements . . . all other complaints based on a violation of both constitutional
and statutory rights are waived by failure to comply with Rule 33.1.” Ibarra, 11
S.W.3d at 197.

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“The purpose of requiring a specific objection in the trial court is twofold:
(1) to inform the trial judge of the basis of the objection and give him the
opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to
the complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009).
“Although there are no technical considerations or forms of words required to
preserve an error for appeal, a party must be specific enough so as to ‘let the trial
judge know what he wants, why he thinks he is entitled to it, and do so clearly
enough for the judge to understand him at a time when the trial court is in a proper
position to do something about it.’” Id. at 312–13 (quoting Lankston v. State, 827
S.W.2d 907, 909 (Tex. Crim. App. 1992)).

ANALYSIS

Appellant argues the trial court improperly denied appellant’s motion to
reveal the identity of the CI because the “probable cause affidavit lacked critical
information regarding probable cause that could only be provided by the
confidential informant.” Appellant contends that a “plain and clear reading of the
probable cause affidavit relied upon by law enforcement for the search warrant
shows that only the CI can provide missing information from the affidavit.”
Appellant urges that all four of the described transactions in the affidavit do not
provide the necessary information to describe a “controlled buy scenario” because
the affidavit states that the CI was searched prior to the buy and provided money,
the CI was seen arriving at the listed address, and then after entering and exiting
the residence the CI met up with law enforcement at a predetermined location.
Appellant contends law enforcement did not properly control the transaction to
ensure the narcotics were not produced from another location other than from
appellant. Appellant contends the “lack of control of the CI and the alleged
purchase is exactly why the CI was critical to the ‘fair determination of guilt or

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innocence’” and why appellant had the “right to confront and cross-examine the CI
about the alleged transactions.”

On appeal, appellant advances a completely new argument for why the trial
court should have granted his motions to reveal the identity of the confidential
informant. Appellant filed three such motions in the trial court. The first and the
third were nearly identical, excepting in the evidence it claimed the State was in
possession of. Both the first and third motions relied on Rule 508(c)(3) and argued
the State had certain items in its possession through reliance on information
provided by the CI and questioned the CI’s credibility and reliability. The second
motion relied on Rule 508(c)(2) and argued the State had possession of
information provided by the CI and used to obtain the search warrant. Appellant
argued “I think the fact that they are paying money to the C.I. calls into question
the C.I.’s reliability and credibility in this case. As the Detective just testified, he
could not have obtained the search warrant without information provided by the
C.I. in this particular case.” Appellant further argued “because it’s necessary for
the jury to assess the credibility of the confidential informant in person under
508(c)(2) for a fair determination of the guilt or innocence of [appellant], and also
under 508(c)(3) test whether the informant’s credibility is reliable.”

Appellant did not contend, despite asking the detective about the details of
the narcotics purchases between the CI and appellant, the narcotics purchases
could not be considered “controlled purchases” because law enforcement did not
have control over the transaction due to the lack of monitoring of the CI or that “a
fair determination of the circumstances surrounding the application for the search
warrant requires that the CI be identified and made available [] for questioning and
potential cross-examination.”

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Because appellant did not make this argument in the trial court and allow the
trial court the opportunity to rule on it or give opposing counsel the opportunity to
respond to the complaint, we conclude this argument has not been preserved on
appeal. See Resendez, 306 S.W.3d at 312; see also State v. Mercado, 972 S.W.2d
75, 77 (Tex. Crim. App. 1992) (“Although this Court has approved of appellate
courts considering alternative theories of law applicable to the facts of the case
which support the trial court’s decision, we have not afforded the courts of appeals
latitude to reverse a trial court’s decision on new theories of law not
previously presented to that court for its consideration.”); Martinez v. State, 91
S.W.3d 331, 334–37 (Tex. Crim. App. 2002).

We overrule appellant’s sole issue on appeal and affirm the judgment of the
trial court.

/s/ Ken Wise
Justice

Panel consists of Justices Wise, Spain, and Hassan.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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