*1 was, adequate was made without notice. It short, a situation in which there was no injury and in almost ev- possible
erything had been done waive
the error.
I am convinced that the decision in Ex
parte Roberts, supra, correct, and that majority goes unnecessary lengths
order to overrule it. I dissent.
MORRISON, J., joins in this dissent.
Richard Payton WHITE, Appellant, STATE Texas, Appellee.
No. 48216. Appeals
Court of of Texas. Criminal 5, June 1974. Rehearing
On Dec.
Rehearing Denied Jan.
Mark and William W. Schwartzman Antonio, Morris, appellant. San Butler, Atty., Arm- Ted Dist. Gordon V. Douglas Young, Asst. Dist. strong and C. Vollers, Antonio,
Attys., D. San Jim Austin, Atty., State. OPINION ODOM, Judge. of her-
Appellant was convicted of sale
oin;
under Article
punishment, enhanced
Ann.P.C.,
at life.
was assessed
Vernon’s
*2
money
that he was
“A. He said he
contends
denied
needed some
process,
gave
his right
compulsory
seventy-
to
in viola-
to eat and
him or
I
rights
tion of his
under the
Amend-
five dollars sent to him.
Sixth
ment of the United States Constitution.
“Q.
give
You didn’t
him
at that time ?
I.
No,
“A.
sir.
prior
ap-
to trial
The record reflects that
“Q.
you
him
How did
send
the mon-
pellant
alleging
Jimmy
filed a motion
ey?
present at the time
Martinez Leveine was
occurred,
alleged
offense was
to have
By
my
“A.
one of
officers.
and would
did not
n
n
n
n
n
offense,
alleging further
commit the
and
sfc
“Q.
you
.
.
.
know
Jimmy
arrest of
that before the indictment or
working
had been
with Albert
Leveine
Antonio Po-
an officer of
San
day-to-day
Chevera on a
basis on these
Department
lice
Leveine to
instructed
cases;
you
don’t
?
County
provided him with
leave Bexar
so, knowing
funds to do
would he
Leveine
Yes,
“A.
sir.
defense,
a material witness
and for
purpose
concealing
and de-
“Q.
you
And so
knew most of the
priving appellant
compulso-
to
right
of the
made,
cases that Chevera had
ry process to secure witnesses in his be-
Jim-
my
present
Leveine had been
with him
half.
at the time ?
Testimony presented
hearing prior
at the
present
to trial reveals that Leveine
“A. Probably
good
percentage of
the time of the
transaction. Offi-
them.”
Chevera,
made,
cer
to whom the sale was
pretrial
At the
hearing,
close of the
testified that
was his informer and
Leveine
court found:
protect
“cover” to
secret
work,
nature of his
that as
undercover
“He
has not
[the
Leveine]
to,
present prior
during,
such Leveine was
concealed, you
have been told his
transaction,
*
and after the
was in fact
* *
name and who he is.
only person present
appel-
other than
your argument
“The basis of
is the
Later,
lant and Chevera
Lieuten-
himself.
government
dependent
ant
after the conclu-
Slocum testified that
upon
snitch,
the whims of a
which can-
sion
Leveine’s work with Chevera
stays
be. Whether
around or not
had a conversation.
enough
govern-
to defeat the
statement of facts reflects:
trial,
right
prosecute
ment’s
a man for
“Q.
you
discuss at
What
which can’t be.”
n ?
time
Appellant asserts this record reflects a
n
thought
ought
“A. He
process.
right
compulsory
denial of
good
thought
town
it was a real
Texas,
Washington
In
388 U.S.
idea.
(1967),
witnesses, compel and to their attend- ance, necessary, plain if is in “Q. you him it would be a terms the told When you give right present right good idea if he left town did the defendant’s to do so ? version issue is in- prosecution’s same before the court in each facts as well as the : stance whether the jury may so decide where the truth of a right the defendant is lies. as an accused a futile act which Just prosecution’s delay will serve to cause rather confront witnesses for promote justice. than to challenging their testimo- Where de- fendant seeks ny, he has the his own *3 appear witness to in his witnesses to establish a defense. This defense which continuance, attachment, in a an right is a element of due results fundamental process of bench the or a warrant court is within law.” rights appear-
its
to demand sufficient
ance of the
of the witness’
II.
testimony.
or
tes-
An affidavit
sworn
necessary to
Concerning
showing
timony by the defendant
what
saying
compulsory
support
of
a claim of denial
witness
to is
would
a reason-
471
process, this Court Hardin v.
requirement.
able minimum
60, 62,
at
stated:
S.W.2d
“In the
case
instant
a
a
statement and said
“Where
defendant seeks a continu-
not make
sworn
took
stand
nothing.
attorney
ance because of an
witness
His
unavailable
Legislature
during
to state that his work
demands that
trial
Texas.
product
investigation
motion set forth the 'facts
are ex-
convinced
would,
witness,
if
pected
proved by
to be
these
witnesses
five
appear
they
present,
must
to the court that
have testified
City
possibly
29.06(3),
material.’ Article
could not
have been
V.A.C.C.P.
set
in-
required
day
It is
on the
further
‘the facts
of Midland
probably
forth in said
nei-
motion were
true.’
dictment.
testified that
He further
or
investigator
Article
had seen
29.06(6), V.A.C.C.P. As a mini-
ther he
his
requirement
any
the five witnesses and
mum
the mate-
talked to
of
determine
they
say. The
riality and
forth
did not know what
would
truth of
facts set
during
Legislature
has also
record
devoid of
determined
of
11
or in a motion for new trial
motions for continuance
trial
‘[a]
testified
of
defendant must
what
witnesses would have
be sworn
29.08,
testify.”
willing
himself.’
if
Article
or
V.A.C.C.P.
is no
instant
there
such show-
In the
consistently
“This
re-
Court has
would have testified.
ing of what Leveine
cently held
ex-
that no reversible error
motion
this a claim of a denial of a
Were
ists where
a
sought
a defendant
either
continuance,
attachment,
aor
bench
witness,
his
an 'at-
get
continuance to
or
warrant,
this failure would be sufficient
witness,’
tachment of
where the defend-
materiality was
support
conclusion
did not
ant
offer a sworn statement
however,
Here,
appellant does
shown.
saying
the time of the
what the
motion
de-
ruling
of the trial court
not claim
Brito
would have testified to.
compulsory process, but
right
his
nied
State, Tex.Cr.App.,
rather,
compulsory
right
that his
parte Selby, Tex.Cr.App.,
also Ex
See
pre-empted by action of the State
process result “disappearance” a witness been denied. defeating the possibility compelling ty however, Materiality, sufficient. attendance question even before the can be as- not the sole before us. serted, and sup- result such a thorough
pression prevent of evidence as to a show- III. precisely what the evidence would be, since the witness was gone before Brady In Maryland, 373 U.S. chance to determine what his 10 L.Ed.2d it was held: would be even arose.1 “ . . . suppression by record, however, support does not prosecution of evidence favorable to an appellant’s agents claim that of the State upon accused proc- violates due instructed Leveine to leave town for the ess where the evidence is material either concealing depriv- evidence and *4 guilt punishment, irrespective or to of ing appellant of the good prose- faith or bad faith of the process. But though even the record cution.” shows neither such direct instruction show, condemnable it purpose, does principle That was reaffirmed in Moore v. admission, Officer Slocum’s own Illinois, 786, 2562, 408 92 U.S. 33 L. knew participant Leveine was an active in 706, Ed.2d with this observation: making many Chevera, cases with and that with such knowledge actively partici- “Important, then, (a) suppression pated in facilitating encouraging Lev- request by after a departure, by approving of Leveine’s defense, (b) the evidence’s favorable suggestion that he (Leveine) character for the (c) by promising him money to assist him in materiality of the evidence.” leaving, by having promised Moore held the therein Thus,
delivered one evidence not ma- of his officers. terial. be said of record does Such cannot the situa- resulting show State action in here, above, being as shown because of the unavailable as a witness. “suppression”
nature of the involved. The Since available, Leveine was not it is im complained action of the State of is not possible say precisely what his withholding posses- of be, but since he was the wit sion of subsequently the State which has present ness at the alleged transaction oth light come to and been found favorable to er than the accused and the undercover is, rather, the accused. action contribut- agent, all the evidence materiality ing to the absence of a material witness so points unquestionably that, toward the conclu apparently, the witness and the evi- sion that Leveine would be a material dence give placed beyond he could witness.2 Under a claim of State action the reach of and the both defense resulting in unavailability of a unique State. This of the al- character opposed to a claim of trial court error leged suppression inap- demonstrates compel of a refusing to attendance propriateness in three-pronged of test witness,3 we find the showing of materiali Brady stated in and Moore. delivery 1. The quirement disclosing conversation and of the name the in August September former, regarding materiality occurred in of 1972. the statement police testifying Royal State, All officers said Tex.Cr. instructive. See also v. App., 470, neither heard from nor seen Leveine after 448 S.W.2d and cases cited there State, ; Tex.Cr.App., that date. was ar- indicted and v. in and James February 1, 1973, rested over four months S.W.2d after the witness last was seen. Subpoena was 3.No here raised. such claim is Although Aguilar State, the issue v. Tex. unserved be- issued for Leveine returned Cr.App., 444 S.W.2d concerned the re not be located. cause he could complained materiality The acts before cient been of occurred shown. In this respect appellant any request, analogy could make and were a close found those character, stating the re- cases test ongoing requiring of an so disclo- identity sure quirement suppression that the after a be confidential in- explained State, applicable. Aguilar is not think the formant. As We requirement Brady partic- sit- 444 unless the S.W.2d informer ipated offense, present uation is make a twofold: defense at the time, timely request, on no- or is and that the otherwise shown to be a materi- required tice of al witness what is of it when acts as to whether the com- the mitted the act charged, identity are committed. From need before clear not be But record us disclosed. if such shown, timely sought Regard- identity to secure Leveine. must be revealed. being the State’s on notice of what was Such was the case in James required it, Slocum knew Leveine which this Court ordered working closely nu- with Chevera on reversal because of the failure to disclose basis, day-to-day identity merous cases on a of an informer who was shown good he was on at least “a to be material witness because he was percentage marihuana, Although them.” the record the sale of even though does participant not show that Slocum knew which was not an actual particular cases in relationship precisely which Leveine would be sale. Such *5 a material he knew that Leveine that of Leveine to the sale herein. participated in operations requirement undercover There is over no additional that the period particular four month during which evidence given Slocum which would be times, met with him material, about be a dozen shown to be or to be favorable knew that he would be a material witness to the defense. This is so because of the that, some of those Knowing logical cases. impossibility we char- contend, do not believe the prerequisite State can acter of the evidence as to contended, has it learning Slocum’s lack of what the evidence is! knowledge, if he knowledge, lacked such It is the material character of the wit that Leveine would in fact be a material ness, testimony, not of the which must be particular witness in this negate case can this, shown in such cases as as distin had, the notice sup- Slocum at the time he guished from cases where ported participated plan in Leveine’s to process by (e. is ruling denied of the court that would be mate- par g., Hardin v. or where supra), rial purposes witness. Thus dual g., Brady sought (e. ticular evidence is v. being State’s on notice and the defense Maryland, supra), or evidence is re where timely making request are inmet this case. subsequent (e. g., trial Alcor vealed Texas, 103,2
ta v. 355 U.S. L. 9). Although of those cases Ed.2d each IV. compulso involves an element of denial of The second and third elements stated ry or an element of Brady and Moore are that the evidence be evidence, they distinguishable from the material and favorable for the defense. instant case and the refusal to reveal Again, the alleged suppres- nature of the identity witness in that such of a material sion is precise such that the content of the present a claim for a latter two situations evidence cannot be shown. The obvious evidence; unique type namely, purpose of these requirements is that if the yet developed. to be evidence were not favorable and material necessity by yet presented fact that it the evidence was not the Where jury show the developed, could it is sufficient to not have harmed the defense. be Here, however, the witness: once we have that suffi- material character of found done, ing may rendering him out of town and not obstruct the to- the State tally party. either
pursuit by either re- unavailable to of it identity, by spirit- fusing reveal contention that State’s Slocum away. benefit the witness What instruct, Leveine to order or force discovery identity if the informer’s no faith is leave town bad shown “disappear- already State has secured Brady Maryland, controlling. is not v. See say This that a defend- ance” ? is not supra. police encouraged partici- ev- ant never trial until brought can pated plan with of Lev- ery missing but identifiable Likewise, a witness. subpoenaed, attached, and been police had no claims State’s available to the defendant. See McCloud knowledge of Leveine’s whereabouts at State, Tex.Cr.App., subpoena time of trial and that issued Nor does defense from the this excuse the was returned unserved because Leveine but preparation in its diligence exercise of own change could not be located do its securing for trial and in attendance of controlling The fact that Leveine’s facts. State, supra. own witness. See Hardin v. disappearance only so successful dem- was may not de- We hold that the State sharply the harm. onstrates more present his “right feat the defendant’s correctly own establish a defense” The trial court observed witnesses to Texas, identity. given cas- (Washington supra) those was informer’s contention, however, identity must was es where the of the informer informer, not the informer concealed the insuring disclosed court also merely identity. as a wit- The trial thus identified will be unavailable correctly ness. observed upon the “whims of depend case is not case, how- here the snitch.” What V. ever, in ac- participation *6 materiality of the requisite tests of The wit- material rendered a known which witness, and timely pursuit by the appellant for the exer- ness unavailable to knowledge of the witness the “to cise of his constitutional suppres- alleged at time of the State’s the defense,” a to establish own witnesses met, only having sion there remains been Texas, supra. It is not Washington v. the al- question of whether the alone, acting but the action of the witness leged to improper shows attributable constitutes participation State’s the State. reversal. requires and harm originated plan if the to town Even is stated, judgment For reasons Leveine, with it is clear from the record reversed and the cause remanded. n that Officer actively encouraged Slocum by responding participated plan and suggestion stating it was Leveine’s MORRISON, Judge (concurring). good idea, money, by promising to send part in took a is the State It where by money promised. and sending unavailable rendering a material intent was for Lev- Whether Slocum’s sole is a reversal pre-trial for conference is safety contended) is (which not was here such a called for. Because as the interest irrelevant. Just join in presented, I this reversal. confidentiality yield an informer must case, proper despite its in en- interest him, so couraging protecting and too must DOUGLAS, Judge (dissenting). proper
the informer made in a be available be- this conviction majority The reverses for the Other means are available case. who was Leveine absence of cause of the protection than send- of a material witness Chango selling dope. Appellant also seen time Officer Chevera at the White with before, people testified that he had stated that burned Leveine sold heroin. When and, know, you you give if Antonio, “Burning, like should Officer Slo- he leave San dope me some some score agreed furnished him some mon- cum you and take off and never come back. the life ey. It is common That burning.” is very not expectancy an informer is known to long, especially after name an ab- To a new because of obtain trial pushers. heroin sent must show that defendant production witness would the absent majority holding, if an officer Under the likely Here change the result of trial. attempts been an protect one who has Chango appellant himself testified he helping him informer leave town sold heroin and later testified he found, none of cases cannot later be Chango also never seen sell heroin. He present at alleged he been where have he an addict and had testified that can be the sale of heroin tried. dope people taking buy burned though majority reverses there The even dope money. return with the or the not alleging new what no motion for trial Appellant Chango call who proved by absent wit- expected jail trial claims was in at the time of the ness. There is no statement or even al- at the time of- legation of what his would have fense. present. had he been appears majority gone appellant Officer Chevera testified long way wrong estab- direction to sold him testified majority heroin. rule lish new of law. that he had never seen before the pushers go allow heroin would day question. claim officer, There is no free before indict- because an even returned, the record Lev- an informer ments are assists appellant. eine informed on get safety, out of town his own trial, cannot be the time of the informer point does out what require of- majority found. Would contradictory of his own statement stay ficers have an informer where expected that he Leveine to corroborate. likely one would killed? Where more testified direct examination many people same has informed on that he was a heroin addict and had been indicates, city this record *7 penitentiaries in a total times for of five that would be greater odds be he burglaries that he had committed to obtain stayed among people those or if he drugs. safety left town for his ? got he He testified that in the car with The be affirmed. judgment should they and Chevera and followed buy man in her- Chango called an effort to FOR ON STATE’S MOTION OPINION He that gave oin. testified some ' ' REHEARING Leveine, bought from Chan- who heroin go and had a that later and Leveine Appellant
“fix.” also that testified MORRISON, Judge.
night Chango before the trial he talked asserts, and we The now jail Chango that said that he State perfect agree, appellant failed received a life sentence They point process. want claim denial due “Chevera” sale and did not not testify. Chango out this record does reveal related that was one He question left town or the witness in ever of Chevera’s He then contradict- victims. in fact was not available ed himself and testified he had never proof offered introduced and was also trial. The made at the time of practicing at- Rohm was that Emmett proof proof that the witness no or offer of J. in torney in Antonio 1955. San normally the address on sub- lived at recently poena, or not he had whether was not Appellant’s that he moved, was made the offi- what effort alone, attorney, standing represented him, in the manner cer to locate or even disprove in the recitations is insufficient acquired that which information State, judgment. Tex.Cr. Reeves v. address, As proper if it was. this was the State, 648; App., 500 Gutierrez v. S.W.2d fact, this record is devoid of a matter of Tex.Cr.App., 84. 456 S.W.2d in not any testimony that the witness was overruling in The trial court did not err and that whereabouts fact available quash. the motion to appellant at the time unknown to the showing that he There no trial. is Appellant’s ground last error is request person involved overruling that the in his mo court erred knowl- their the trial of this case about He claims that for instructed verdict. the witness. edge of the whereabouts of is a there is no that heroin nar No was made of drug cotic within the terms of Article concern- determine if had information 725b, Ann.P.C.1 1(14), Sec. Vernon’s ing the whereabouts of the witness. the time read: Article effect at Appellant subpoena for the wit- issued “(14) drugs’ ‘Narcotic means coca days ness twelve It was before the trial. leaves, cannabis, amidone, opium, isoni- unserved, “Subject returned not at this ad- pecaine every substance neither unavailability of the witness dress.” distinguishable chemically physically logically inferred on this basis could not be them; opiates, shall from also that, alone. failed to establish any drug having an addiction- mean apart subpoena, he issuing from exer- liability addiction-sustaining forming or securing attend- diligence cised due ” cocaine; opium . . . similar to Spencer missing ance witness. Cf. of this State, Tex.Cr.App., 503S.W.2d no offense is Appellant’s contention that mentioned charged since heroin is not grounds the two other not One of adversely himto said Article was answered appel original discussed our 163 Tex.Cr.R. Gonzales erred lant’s contention court the indict quashing paragraph third burglary convic Rehearing ment which a 1955 Motion County. Appellant con is set granted; tion from Bexar of reversal judgment that at time of such conviction aside, tends now affirmed. judgment and the represented indigent he was and was motion, hearing counsel. At the ONION, Presiding Judge (concurring). judgment in said introduced a *8 appellant study this record on that After further of
cause which recites rehearing, I am con- he desired to State’s motion for “stated to the court that reversing the jury plead vinced we were in in guilty waiver and before error counsel, court, original on the basis case on submission and that he was without appointed practicing a in Leveine whereupon the court that State action resulted in resulting attorney represent being said de unavailable as witness of this Bar to deprivation by appellant’s Em constitutional signed of jury fendant.” A waiver “Attorney rights. mett for Defendant” Rohm as J. (cid:127) Leg., p. 3069, 1, by 1(14)-(16) effective Acts 62nd Oh. Sec. as amended Sec. June of this To under circumstances
This reflects that some seven and hold record trial, particular deprived that action prior and one-half months before State’s appellant of appellant, indictment of Lt. and arrest mean that an accused should be allowed to Police De- Slocum of the San Antonio officer, Leveine, go in- partment an before an with free because had a conversation returned, an informer partici- gives dictment is an knew had informer who Slocum and that under the pated agrees for food agent with undercover Albert Che- existing circumstances then he should leave making vera a number of narcotic cases. safety expressed thought he town for his later the informer Leveine that and agreed by that sub- should leave and cannot be found the issuance Slocum poena good certainly it was a idea. It is common under the conditions here described. nar- that lives informers agree re- motion for State’s danger. cotic cases are constant The granted judg- hearing should and appears place taken conversation have ment should affirmed. shortly after Leveine’s an activities completed. Upon former had been Lev- suggestion that “needed some ODOM, Judge (dissenting). to eat” him Slocum sent $75.00
one of his officers. amount involved I vigorously position dissent to the taken not sufficient to him to travel allow by the for majority on the Motion great keep distance or to him food Rehearing. long. any authority, benefit Without opinion pointed majority As out majority perfect assert in order to his original on submission record does not claim a violation his constitutional support appellant’s agents claim rights, appellant must do useless Leveine town State instructed thing. appellant Prior to trial a mo- filed purpose concealing evidence and de- alleging Leveine was material wit- priving compulso- appellant of the right ness when the offense was ry process appellant of witnesses. The had occurred, have and would not even been arrested and no indictment appellant offense, did not commit the even time. been returned at the further that alleging before indictment
Only days agent twelve or before trial arrest of of the State subpoena issue a for Leveine. instructed the for the de- material witness days county provided was returned four trial marked before fense to leave “subject so, knowing at this with address.” funds to do him to be for the of con- record does reflect cealing depriving normally placed on the lived at address right compulsory process his to secure subpoena by appellant, nor whether re- behalf. witnesses not, recently or what efforts moved viewed law discussed in Court’s attempted to the officer who original submission reveal subpoena Leveine, or serve the to locate improper participat- took appellant acquired the information how rendering a witness una- material subpoena. about the used on the address the defense. The evidence vailable to appellant’s clear the State violated nothing There is that Leveine in show highly rights in a manner did, fact left If there no town. prejudicial preempted in that showing he was still out of town at the opportunity him the and denied *9 time of the trial some and one-half seven in his months defense behalf. later. majority the majority
I first dissent from what the their action harmless. Is say harm, majority holding beyond showing ap- was shown. assert: impossibility must show sub- [appel- “There is no that he sequent having large events in the world at any request person in- lant] of events rendered harmful course volved the trial of this case about majority state the harmless? When knowledge their of the whereabouts of left record does not reveal the witness ever the witness. No was made of available, they town or was not in fact if-they to determine subpoe- suggesting should have concerning information the whereabouts persons County in naed all in Bexar order of the witness.” the witness to demonstrate that none were the “dili- sought? appellant shown Had original The State in on its brief submis- majority, gence” suggested by the assertion, following sion made and cit- pos- acts were they then hold some further pages ed in the record which show its taken, sible, have been but not shown to truth: “diligence” insufficient and therefore Appellant showed the shown? Chevera, “Officer Detective James witness, and showed State Cullar, Doyle Odis all and Detective unavaila- steps the witness taken to render knowledge stated had no whatsoev- ble, need and desire further stated his Jimmy er Leveine’s whereabouts after This for his defense. to have the witness un- the termination of Officer Chevera’s protect per- diligence sufficient operation.” dercover constitu- by this fect for review Court Slocum, Furthermore, right asserted. Lieutenant whose tional quoted Ann.C.C.P., 44.23, di- Article Vernon’s submission, original also testified that In the determination rects this Court he had received from no communications that no affirmance of a peals, and dictates promised to send him Leveine since he had technical- shall be determined on mere money to and that he had no well de- technicality “A has been ities. at the time of his whereabouts into gotten microbe which fined as a of trial. This was sufficient to show justice the blind given the law and improper success of course the State’s majority have reached staggers.”1 The action. upon to af- technicality for mere case, doing ig- so have firm this majori- secondly dissent from what rights of nored violated had tak- ty say need The State be shown. upon which diligence appellant. The lack securing the witness’ en a material role mere is a majority their action base disappearance. incumbent then became just any at issue is technicality because State, appellant, show upon the not the missing it is a witness missing had, thereafter, if he that the witness had State, dili- the test of action of the should the again Why become available. in such applied is of no relevance gence required to make further accused be case as this. ac- showing of the success of in this case ?! Once tion than was made I dissent. of that the success demonstrated passed to the the task ROBERTS, J., in this dissent. joins subsequent events rendered to show Corp., D.C., F.Supp. Mining Finance v. Reconstruction McArthur Co.