Troy Wayne Harmon v. The State of Texas

Beaumont, Texas - Criminal defense attorney represented Troy Wayne Harmon with a Poss With Intent to Deliver a Controlled Substance charge

A grand jury indicted Appellant Troy Wayne Harmon of two counts of firstdegree-felony possession with intent to deliver a controlled substance in an amount

of four grams or more but less than 200 grams. In trial cause 19-12-16953-CR,

Harmon was indicted for possession of heroin, and in trial cause 19-12-16954-CR,

Harmon was indicted for possession of methamphetamine. Both indictments alleged

one previous felony conviction for enhancement purposes. The jury found Harmon 2

guilty on both counts, Harmon pleaded "true” to the enhancement paragraph in both

counts, the jury assessed punishment at sixty years of imprisonment for each charge,

and the trial court ordered that the sentences run concurrently. In a single issue on

appeal, Appellant argues that the trial court erred by denying him the opportunity to

call a Special Agent to testify in a pretrial hearing to convince the trial court to order

disclosure of the identity of a confidential informant (CI). We affirm.

Pretrial Hearing

In a pretrial hearing, the defense requested disclosure of a CI's identity

because the CI allegedly had information relevant to guilt or innocence:

. . . the information specifically being that supposedly my client

deals in ounces of drugs, supposedly my client uses a tube sock to hide

the drugs, supposedly my client drives a certain car, supposedly my

client is going to be at a certain location at a certain time. These are all

relevant facts only which the informant has.

And so, therefore, it becomes necessary to determine the extent

of the bias, the extent of the training, the extent of the expertise of this

informant. Otherwise, this is all hearsay. . . .

The defense argued that law enforcement would not have known that Harmon

allegedly carried drugs in a black sock and dealt in ounce-size quantities but for the

CI.

The State argued that law enforcement knew there was an open warrant for

Harmon, they approached Harmon in an open area, and they did not search Harmon.

The State also argued that the CI was not present when law enforcement approached 3

Harmon, the CI did not have information material to Harmon's guilt or innocence,

and the State would not be relying on the CI to establish guilt or innocence.

The trial court noted there was a warrant for Harmon's arrest and that an

abandoned tube sock was found on the ground where Harmon had been standing,

and that the CI was not present at the time of the search. The trial court concluded

that the defense had not met the threshold test for disclosure of the CI's identity and

denied the defense's request for a hearing, stating there was nothing to suggest that

the CI was present where the sock was found, had anything to do with the search, or

had firsthand knowledge of this case.

Evidence at Trial

Testimony of Trooper Brit Lopez

Brit Lopez, a highway patrol trooper with the Texas Department of Public

Safety (DPS), testified that he was on patrol on the night of July 30, 2019. Lopez

testified that he knew of Harmon from a previous encounter and had learned there

was an active felony warrant for Harmon in Montgomery County for failure to

appear in court. Lopez also testified he went to look for Harmon based on the active

warrant and because Special Agent Ward, a narcotics detective for DPS, had

received information that Harmon was selling or distributing heroin and

methamphetamine in ounce levels and that Harmon kept the drugs "balled up in a

black tube sock.” Agent Ward had informed Lopez that Harmon was going to be at 4

an address in Magnolia, and Lopez went to that area. As Lopez turned onto the street,

he observed Harmon standing next to a silver car, on the left side of the car near the

front, talking with someone later identified as Jason Tahtinen. Lopez did not stop to

detain or arrest Harmon at that time because Lopez was alone, he did not know the

person with Harmon, and there might have been guns at the scene. Lopez continued

down the street and called the constable's office, which sent Sergeant Bronson

Christopher to the scene. About five minutes later, Sergeants Christopher and

Williams arrived, and the officers returned to the address to look for Harmon. The

officers searched in the property near the vehicle for about an hour, a DPS helicopter

was called to attempt to locate Harmon in the nearby wooded area, but Harmon was

not found.

After not finding Harmon, Lopez returned to the vehicle where he had

observed Harmon and which was registered to Harmon. Sergeant Williams deployed

a K-9 around the vehicle, the K-9 alerted to the odor of narcotics coming from the

vehicle, and Lopez searched the vehicle. Lopez testified that, while searching the

vehicle, he discovered that pieces of the vehicle came loose that ordinarily do not,

and he regarded the vehicle as "a dope running car[,]” because parts of the vehicle

were easily removed and could be used to store drugs. Inside the vehicle, Lopez

found a black backpack that contained vitamins, pain medication, a bag of syringes,

a loose syringe, guitar picks, measuring spoons, a razor blade with crystal meth 5

residue, more than fifty clear ounce-sized ziplock-style baggies, and some Suboxone

strips. Lopez regarded these items as an indication of narcotics dealing, and in his

experience, it was common in that area for people to use such syringes with

methamphetamine or heroin.

Lopez testified that Agent Ward arrived at the scene, and Ward was going to

search the engine compartment. Ward found "a black balled-up tube sock” on the

ground that contained "a large amount of crystal methamphetamine, black tar heroin

and china white heroin[]” about four feet in front of the vehicle on the driver's side,

and Lopez testified this was where he had seen Harmon standing. According to

Lopez, the sock did not look like it had been outside "in the elements[]” for long.

Lopez identified State's Exhibit 1 as the narcotics that were in the sock.

Lopez recalled that the next contact he had with Harmon was on August 1 at

a motel in Harris County, and Lopez confirmed the open warrant for Harmon, and

then he detained Harmon in handcuffs. When he searched Harmon, he found one

loose syringe in his back pocket, guitar picks in his front pocket, and about $1700 in

cash in his wallet. After Lopez read Harmon his Miranda rights, he asked Harmon

about the night of July 30, and Harmon told him he saw the police drive by that night

and then walked off into the woods to check some fishing lines and then Harmon

went to a friend's house. Harmon also told Lopez that he takes vitamins and pain 6

medication because "he is getting old[,] and it is harder for him to play the guitar[]”

and Harmon told Lopez that the backpack belonged to a friend.

Lopez identified State's Exhibit 6 as a still image from his in-car video from

that day, which Lopez described as picturing the items he obtained from Harmon's

pockets. Lopez also identified State's Exhibits 7 and 8 as recordings of him

searching Harmon's car and the arrest of Harmon, and the video exhibits were

published to the jury.

Testimony of Sergeant Marshall Williams

Sergeant Marshall Williams testified that he works in the narcotics and

alcohol patrol division of the Precinct 5 Montgomery County constable's office, he

is a K-9 handler, and his K-9 is trained to locate and find narcotics. According to

Williams, his dog is trained only to search the area Williams tells him to search and

does not search anything else. According to Williams, when his dog alerts on a

vehicle, it means narcotics have been present in the vehicle at some time.

Williams testified that on July 30, 2019, he heard that a subject fled from

Trooper Lopez, Williams decided to go help Lopez search for the subject, and

Sergeant Christopher went to the scene also. According to Williams, the officers

searched around a residence and nearby wooded area for about three hours, and they

also called DPS to search by air. The officers returned to the vehicle where Harmon,

the suspect, had initially been seen, and they checked the interior and popped the 7

trunk to see if Harmon was hiding in the vehicle. Williams testified that Lopez

thought Harmon may have fled if narcotics were in the vehicle, Lopez asked

Williams to deploy his K-9, Williams told his dog to search the vehicle, and his dog

made a positive alert on the vehicle's trunk and the passenger's side front door.

Williams testified that the drugs found on the scene were not in the vehicle but were

in a black tube sock about ten or fifteen feet in front of the vehicle.

Testimony of Sergeant Bronson Christopher

Sergeant Bronson Christopher, a patrol supervisor for the Precinct 5

constable's office, testified that on July 30, 2019, he received a call from Trooper

Lopez, who requested assistance because Trooper Lopez had seen someone who had

an open felony warrant. Christopher arrived at the scene a few minutes later, where

he saw Lopez sitting at the end of a driveway and another person named Tahtinen

standing next to a vehicle. According to Christopher, the officers searched the

property for several hours with assistance from a DPS helicopter, and they

interviewed people inside the nearby residence, but they did not see Harmon.

Christopher testified that the K-9 performed a free air search of the vehicle, after

which the officers searched the vehicle. Christopher recalled that the parts of the

vehicle fell off easily, and Christopher believed the vehicle was designed for

narcotics trafficking. Christopher testified that inside the vehicle was a black

backpack that contained clear plastic baggies and a bag of syringes, a keyboard was 8

in the back seat, and a guitar was in the trunk. According to Christopher, the baggies

were significant because they are used to separate quantities of narcotics for sale.

Christopher also testified that syringes are used with narcotics that have been heated

and liquified.

Christopher recalled that the drugs in State's Exhibit 1 were found in a clean

black tube sock a short distance from the front of the vehicle. According to

Christopher, Agent Ward found a black sock on the ground, took out its contents—

including methamphetamine, black tar heroin, and white heroin—and placed the

sock on the hood of the car. Christopher testified that the quantity of

methamphetamine and heroin in State's Exhibit 1-A was "definitely indicative of an

intent to deliver[]” and "way more” than a "user amount.”

Testimony of Special Agent Craig Ward

Craig Ward testified that he is a Special Agent working on narcotics cases for

DPS where the focus is on large-scale investigations and drug trafficking and not

typically individual users. Ward testified that most of the methamphetamine in the

U.S. today comes from Mexico, and that a lot of drug traffickers get caught during

travel. According to Ward, traffickers may distance themselves from their narcotics

by fleeing and leaving the drugs behind if they feel their life is in danger.

Ward recalled that on July 30, 2019, as a Special Agent in narcotics, he

received information that Troy Harmon was "an ounce level methamphetamine and 9

heroin trafficker[]” who would be at a specific location that night. Ward also learned

that there was a warrant for Harmon on another charge, and he contacted Trooper

Lopez to locate Harmon at the specified location in Magnolia. Lopez later contacted

Ward, and Ward went to the scene to assist with the vehicle search. Ward testified

that while the other officers searched the vehicle, Ward focused on the area in front

of the vehicle where Harmon was last seen standing, and he observed a black sock

rolled up on the ground, about three to four feet in front of the vehicle, which he

gave to Trooper Lopez. According to Ward, he had learned that Harmon traffics

ounce quantities of methamphetamine and heroin in a black tube sock. Inside the

sock was "a large amount of methamphetamine” and two types of heroin. Ward

testified that the amounts found were "definitely not something you would find on

an average user[]” but would be an amount used for trafficking. Ward recognized

State's Exhibit 1 as the drugs found and the packaging used to submit the drugs to

the crime lab. According to Ward, other drug paraphernalia was found in the vehicle,

including needles, plastic baggies, a scale, and a razor blade with methamphetamine

residue as well as guitar picks, pain medication, and vitamins.

On cross-examination, Ward testified that he learned from a cooperating

individual or CI with whom he had previously worked that Harmon was a drug

trafficker. According to Ward, the CI told him there was a possibility Harmon was

going to be at a specific location on July 30, 2019. Ward testified that he did not 10

know there was an arrest warrant out for Harmon, but Lopez had knowledge of the

outstanding arrest warrant, and Lopez attempted to apprehend Harmon based on that

warrant alone.

Ward agreed they did not find Harmon that night, but a few days later, he

received some information that Harmon might be staying at a hotel on FM 1960.

Ward conducted surveillance at the hotel, and Trooper Lopez was nearby. Ward

testified that he identified Harmon as he left a hotel room and walked downstairs,

and then Ward contacted Trooper Lopez, who arrested Harmon. Ward recalled that,

when Harmon was searched that day, a guitar pick, and a syringe were found in his

pockets.

Testimony of Somiyeh Zalekian

Somiyeh Zalekian, a forensic scientist with DPS in the Houston crime lab,

testified that she analyzed the materials in State's Exhibit 1, and written on the

envelope were her initials and the date she performed her analysis. Zalekian testified

that two substances were in the envelope, one substance contained

methamphetamine, and the other contained heroin. Zalekian identified State's

Exhibits 2 and 3 as her laboratory reports in this case. According to Zalekian, one

substance contained 12.36 grams of heroin, and the other substance contained 25.84

grams of methamphetamine. Zalekian also testified that she did not test a third

substance submitted to the lab, and she did not know what the substance contained.11

Testimony of CorporalJason Boughter

Corporal Jason Boughter testified that he is a main shift supervisor for the

Jersey Village Police Department. Boughter recalled that on or about September 27,

2016, he made a traffic stop of a silver Jaguar at a Motel 6 on US Highway 290

westbound in the early morning hours. Boughter testified that the Jaguar had been

driving with the high beams on. Boughter described the Motel 6 as "a hub” for the

use and sale of methamphetamine and other drugs. Boughter testified that he saw the

driver, who was later identified as Harmon, make a "furtive movement” and reach

across the vehicle with his right hand, which Boughter associated with reaching for

a weapon or moving contraband. Boughter recalled that Harmon was extremely

nervous and breathing heavily, and he appeared to be under the influence of

amphetamine. Dispatch advised Boughter that Harmon had an outstanding felony

warrant for his arrest for failure to appear in Waller County. After a backup officer

arrived, Boughter had Harmon get out of the car, detained him in handcuffs, and

patted him down for weapons. Boughter found a "fat stack” of $20 bills in Harmon's

pants pocket, and upon discovery of small fragments of marijuana found in the

vehicle, Boughter determined there was probable cause to search the vehicle. In

searching the vehicle, Boughter found syringes, lidocaine, testosterone, human

growth hormones, some pills, and a "large bag of crystal methamphetamine and

another large bag of heroin in a black sock[.]” Boughter agreed that the quantity of 12

methamphetamine weighed 41.2 grams and the heroin weighed just over 18 grams.

After field testing the heroin, Boughter took Harmon to the police station, where a

K-9 alerted to the money, and Harmon was then taken to the Harris County jail.

Testimony of CorporalLuke Castillo

Corporal Luke Castillo testified that he supervises the K-9 unit of the Waller

County Sheriff's Office and he was training to become a K-9 trainer. Castillo agreed

that he was patrolling on March 10, 2017 and he conducted a traffic stop of Harmon

after checking on a suspicious vehicle about 1:30 in the morning. Castillo testified

that the vehicle was suspicious because it was parked in front of a closed business

in an area where there had been burglaries. Castillo recalled that Harmon and a

woman were in the vehicle, and they were "kind of fidgety” and nervous, did not

make eye contact, and did not answer his questions directly. Harmon declined

Castillo's request to search the vehicle, a K-9 deputy arrived at the scene, and the

dog gave a positive alert on the vehicle. Upon searching the vehicle, Castillo found

15.7 grams of methamphetamine, 6.4 grams of heroin, and pills. Castillo identified

the defendant as the person he stopped and arrested that night.

Standard of Review and Applicable Law

We review the trial court's ruling on a motion to disclose the identity of a

confidential informant under Rule 508 for an abuse of discretion. See Ford v. State,

179 S.W.3d 203, 210 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd); see also 13

Taylor v. State, 604 S.W.2d 175, 178-79 (Tex. Crim. App. 1980). The trial court's

ruling will not be disturbed unless it falls outside the zone of reasonable

disagreement. Ford, 179 S.W.3d at 210.

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.

See Tex. R. Evid. 508(a); Ford, 179 S.W.3d at 210. 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). The two-part

exception in subsection (c)(3) allows the court to order disclosure if "information

from an informer is relied on to establish the legality of the means by which evidence

was obtained[]” and if "the court is not satisfied that the information was received

from an informer reasonably believed to be reliable or credible.” See Tex. R. Evid.

508(c)(3).

A defendant requesting disclosure under Rule 508(c)(2) has the threshold

burden to demonstrate that the informant's identity must be disclosed. Bodin v. State,

807 S.W.2d 313, 318 (Tex. Crim. App. 1991). Before a court orders the identity of

the informant to be revealed, the informant's potential testimony must be shown to 14

significantly aid the defendant, and mere conjecture about possible relevance is

insufficient to meet the threshold burden. Id. A party seeking disclosure must make

a plausible showing of how the informant's information may be important. See

Abdel-Sater v. State, 852 S.W.2d 671, 674 (Tex. App.—Houston [14th Dist.] 1993,

pet. ref'd). Only after a defendant makes a plausible showing is the trial court

required to hold an in-camera hearing to determine whether disclosure is necessary.

Olivarez v. State, 171 S.W.3d 283, 292 (Tex. App.—Houston [14th Dist.] 2005, no

pet.).

When it is shown that an informant was an eyewitness to an alleged offense,

the informant can give testimony necessary to a fair determination of the issues of

guilt or innocence. Coleman v. State, 577 S.W.3d 623, 636 (Tex. App.—Fort Worth

2019, no pet.);Haggerty v. State, 429 S.W.3d 1, 8 (Tex. App.—Houston [14th Dist.]

2013, pet. ref'd). But if the information from the informant was used only to establish

probable cause for a search warrant or if the informant "merely provided information

that led police to investigate a potential offense” and "was neither a participant in

the offense for which the accused was charged nor present when a search warrant

was executed or an arrest was made,” then the informant's identity "need not be

disclosed because the testimony is not essential to a fair determination of guilt or

innocence.”Coleman, 577 S.W.3d at 636; Haggerty, 429 S.W.3d at 8.15

Analysis

Appellant argues that the trial court denied him a right to a fair trial because

the court did not wait for Agent Ward to appear at the Rule 508 hearing so that

Appellant could attempt to make a plausible showing that the CI's information may

be important to his defense.1 According to Appellant, Agent Ward's testimony at a

Rule 508 hearing could aid in Appellant's defense because "it is undisputed that no

officer testified that they observed the Appellant in possession of the drugs.”

In this case, the Appellant was required to make a threshold "plausible

showing” of how the CI's information may be important in his defense. See Bodin,

807 S.W.2d at 318 (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 867

(1982)). Appellant argued to the court that the CI had information that Harmon dealt

in ounce-size quantities of drugs and that he carried drugs in a black sock. However,

testimony at trial established that law enforcement knew there was an open warrant

for Harmon, they approached Harmon in an open area, and they did not search

Harmon on the night the black sock was found. The black sock was found on the

ground near a vehicle registered to Harmon and where Trooper Lopez had observed

1 Appellant also argues that he was denied the effective assistance of counsel

as a result of this alleged error. To the extent Appellant intended to present this issue

for our review on appeal, we conclude that he waived the issue by a failure to brief

it. See Tex. R. App. P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim.

App. 2000).16

Harmon standing. The State argued that it would not be relying on the CI to establish

guilt or innocence.

No evidence or testimony at trial suggests that information from the CI was

relied on "to establish the legality of the means by which evidence was obtained[.]”

See Tex. R. Evid. 508(c)(3)(A)(i). Not only was there an open warrant for Harmon's

arrest, but the black sock was found on the ground, and the search of the vehicle was

supported by an alert by a drug-sniffing K-9. See Matthews v. State, 431 S.W.3d

596, 603-04 (Tex. Crim. App. 2014) ("If the dog alerts, the presence of drugs is

confirmed, and police may make a warrantless search [of the vehicle].”). Even if the

CI had "provided information that led police to investigate a potential offense[,]” the

CI "was neither a participant in the offense for which the accused was charged nor

present when a search []was executed or an arrest was made,” and therefore the CI's

identity "need not be disclosed because the testimony is not essential to a fair

determination of guilt or innocence.” See Coleman, 577 S.W.3d at 636; Haggerty,

429 S.W.3d at 8. We cannot say the trial court's ruling is outside the zone of

reasonable disagreement or that the trial court abused its discretion by concluding

that the defense did not meet the threshold test for disclosure of the CI's identity.

See Tex. R. Evid. 508; Ford, 179 S.W.3d at 210; Bodin, 807 S.W.2d at 318.17

We overrule Appellant’s sole issue, and we affirm the judgment of the trial

court.



AFFIRMED.