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Coleman v. State

Court of Appeals of Texas, Second District, Fort Worth

May 9, 2019

Glenn Coleman, Appellant
The State of Texas

          On Appeal from the 16th District Court Denton County, Texas Trial Court No. F16-749-16

          Before Sudderth, C.J.; and Pittman, J. [1]


          Mark T. Pittman Justice.


         Appellant Glenn Coleman appeals his conviction and 99-year sentence for possession of a controlled substance, methamphetamine. In four issues, Coleman argues that: (1) the State violated the Michael Morton Act, his due process rights, and his rights under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97 (1963), by failing to learn the identity of the informant whose tip led police to arrest him and by not disclosing the informant's criminal history; (2) the trial court erred by denying his motion for disclosure of the informant's identity; (3) the trial court abused its discretion by not allowing him to "timely" use a prior statement of the arresting officer for impeachment purposes; and (4) the trial court abused its discretion by overruling his objection to the prosecutor's jury argument during the punishment phase of trial. After review, for the reasons set forth herein, we affirm Coleman's conviction, but we reverse and remand for a new trial on punishment.


         I. Coleman's Efforts to Learn About the Informant Pre-Trial

         A grand jury indicted Coleman for possession of methamphetamine in an amount of four or more grams but less than 200 grams, a second-degree felony. See Tex. Health & Safety Code Ann. §§ 481.102(6), .115(a), (d). The indictment included two enhancement paragraphs that if found true would elevate the statutory range of confinement from two to twenty years to a range of twenty-five years to 99 years or life. Tex. Penal Code Ann. §§ 12.33, 12.42(b).

         Before the trial, Coleman learned that what led the arresting officer to Coleman on the day of his arrest was a tip from an informant. As a result, Coleman filed two pretrial motions in an attempt to learn the identity of the informant. First, Coleman filed a request for discovery pursuant to Texas Code of Criminal Procedure Article 39.14. See Tex. Code Crim. Proc. Ann. art. 39.14. Second, Coleman filed a motion seeking the disclosure of the identity of the informant. After conducting a hearing regarding Coleman's disclosure motion, the trial court held an in camera hearing with the arresting officer to determine whether the State should be required to disclose the informant's identity. After the in camera hearing, the trial court sent a letter to the parties in which it ruled that the State was not required to disclose the identity of the informant. In the letter, the trial court expressed that because the informant was not at the scene when the arresting officer apprehended Coleman and discovered the methamphetamine, the informant could not provide any information or testimony that would go to the determination of whether Coleman possessed the methamphetamine. The trial court also stated in the letter that "[a]t the time the [tip] was provided[, ] the informant did not have any criminal charges pending[, ] to the [arresting officer's] knowledge, but [the informant] has from time to time had criminal cases."

         After receiving this letter ruling, Coleman filed a third discovery motion asking for production of any materials "pertaining to the Confidential Informant that was utilized, relied on[, ] or referenced to in this cause." Coleman claimed that he was entitled to this information under Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. The trial court denied Coleman's third motion before trial.

         II. Trial Proceedings

         A. Detective Fitzgerald Testifies.

         At trial, Detective Craig Fitzgerald with the City of Denton Police Department testified that on March 24, 2015, he received a phone call from an informant who told him that Coleman was in possession of methamphetamine. Fitzgerald said he was familiar with Coleman because he had both received information about him and made personal contact with him in the past. Regarding the informant's tip, Fitzgerald stated that the informant told him where Coleman was and that he was riding a bicycle and was in possession of methamphetamine. According to Detective Fitzgerald, based on this information, he proceeded in his unmarked police cruiser to Saint Andrews Church in Denton, which he knew served meals to the homeless. Fitzgerald testified that when he arrived, he saw Coleman getting off his bicycle. By Fitzgerald's account, Coleman began to walk away, but Fitzgerald caught up to him and asked him what he was doing. Fitzgerald said that Coleman appeared nervous and fidgety.

         Detective Fitzgerald testified that he told Coleman he had received a tip that Coleman was carrying methamphetamine. Coleman denied this claim but, according to Fitzgerald, began to sweat, became even more nervous, and shifted from side to side. Fitzgerald said that he asked Coleman if he would empty his pockets, and Coleman did so, emptying his pockets onto the hood of Fitzgerald's cruiser. Among the items that Coleman allegedly placed on the hood was a SunMaid raisin box. Fitzgerald stated that he then opened Coleman's raisin box and saw what he believed to be "a lot" of methamphetamine. At that point, Fitzgerald's partner[2] arrived, and they arrested Coleman. Both initial field testing and later laboratory testing confirmed the substance to be almost twenty-one grams of methamphetamine.

         During cross-examination, defense counsel asked Detective Fitzgerald about the informant. Fitzgerald averred that he knew the informant for more than twenty years and found the informant credible. When asked whether "[d]uring that period of time" the informant had a "criminal history," Fitzgerald stated that he did not recall. Defense counsel then asked Fitzgerald whether he was saying that he did not know if "this person ha[d] any criminal history?" Fitzgerald answered, "I don't know if they've been arrested. I know recently they've been arrested, but I don't know if they've been arrested prior to that." Detective Fitzgerald then stated that he believed the informant's recent arrest involved narcotics. Fitzgerald said that the informant was a person who was not paid for information and was not "working off [a] case[]." He also said that he did not ask the informant how the informant knew that Coleman possessed methamphetamine.

         B. Coleman Testifies.

         After being fully admonished by his attorney and the trial court about the consequences of testifying in his own defense, Coleman testified. Coleman said he had lived in Denton since roughly 1984 and was currently homeless and living in a tent. Coleman testified that on March 24, 2015, he had ridden his bike to Saint Andrews Church to get a hot meal. By Coleman's account, just after he got off his bike, Fitzgerald approached him and told him he had a warrant for his arrest, he was under arrest, and he needed to empty his pockets. According to Coleman, he emptied his pockets onto the hood of Fitzgerald's cruiser. Coleman said the items in his pockets included cash, lottery tickets, a lighter, and cigarettes. He denied having a raisin box in his pocket and stated he did not know where it came from: "I didn't see any raisin box until [Fitzgerald] had gotten between me and the car. And the next thing I know there's a raisin box-he's walking around with a bag, and I'm like-I don't know what is going on." Coleman testified that (1) when Fitzgerald showed him the baggie of what appeared to be methamphetamine inside the raisin box, he explained to Fitzgerald that he no longer did drugs; and (2) he would not have had the money to purchase that amount of methamphetamine.

         On cross-examination, Coleman would not say that Fitzgerald "planted" the methamphetamine on him, but he persistently said he did not know where it came from. Coleman stated he no longer used methamphetamine and that when he used it in the past, it was for recreational purposes on the weekends and the most he might have used at a given time was half a gram. He also testified that Fitzgerald had lied to the jury when he said (1) the raisin box came from Coleman's pockets and (2) another officer in a marked police cruiser transported Coleman to jail. Coleman stated Fitzgerald had driven him to the police station. Finally, Coleman testified he had a lengthy criminal history, had been incarcerated multiple times, and had been charged with possession before.

         C. Detective Fitzgerald Testifies Again.

         After Coleman testified, defense counsel asked to question Detective Fitzgerald outside the presence of the jury. During the questioning, Fitzgerald stated that his previous testimony in front of the jury regarding whether the informant in this case had a criminal history may have been confusing and the informant did have a criminal case "pending right now." Fitzgerald also said that in the pretrial in camera hearing, he told the trial judge that he had written a letter on the informant's behalf concerning his or her pending case.

         The next day, the trial court gave the parties redacted copies of the transcript from the in camera hearing. The trial court also ruled that it would allow defense counsel to recall Fitzgerald to ask him about the possible conflict between his testimony during a prior hearing that the informant did have criminal charges pending and his initial testimony in front of the jury that he was unaware whether the informant had any criminal charges pending. The trial court instructed the parties to not refer to the hearing as an in camera hearing; rather, the parties were to refer to it as "a prior hearing."

         Later, in the presence of the jury, defense counsel called Detective Fitzgerald back to the stand. Fitzgerald said that while he had not intentionally misled the jury about the informant's criminal history, he incorrectly testified that he was unaware of whether the informant had any criminal charges pending and he had in fact testified in a prior hearing that he had written a letter on the informant's behalf regarding a matter in which the informant had been implicated. Fitzgerald averred, however, that the letter he wrote was written about a year after he arrested Coleman and he was unaware whether the informant had been convicted of anything when he received the informant's tip on March 24, 2015, that Coleman possessed methamphetamine.

         D. Coleman is Convicted and Sentenced.

         The jury returned a verdict of guilty, and the trial proceeded to the punishment phase the next day. Before testimony on punishment began, defense counsel stated on the record that she had conferred with Coleman "and he would not have testified . . . had [they] known about that . . . concrete prior inconsistent statement [by Detective Fitzgerald] as well as the additional information that came out."

         As the punishment phase began, Coleman pled true to the enhancement paragraphs and formally stipulated to the truth of the State's evidence regarding the two felony offenses alleged therein. He also stipulated on the record to the admissibility of the State's exhibits regarding his criminal history. Coleman's criminal history included convictions for forgery, possession of a controlled substance, possession with the intent to distribute a controlled substance, driving under a suspended license, credit card abuse, theft, and failure to identify as a fugitive. The punishment record shows that Coleman had been incarcerated on at least two prior occasions and that the maximum time he had previously spent incarcerated was three years.[3]

         As the State was giving its closing arguments, the following exchange occurred:

[Prosecutor]: Now, in our regular everyday lives, lies are bad. We shouldn't lie. We should tell the truth. Think about the consequences of your normal everyday life. When we're talking about lies, little white lies, those kind of lies that children tell, what are the consequences? Very minimal. In a court of law, lies have consequences.
I don't think I'm exaggerating to tell you that a court of law, a place where the truth is sacrosanct, is a bedrock principle of our government, our civilization, how we conduct our lives. We live in a world where truth is in flux. Saw a headline the other day asking if truth in the public sphere even exists anymore.
But in a court of law, when you put your hand up and promise that judge and the jury that you're going to tell the truth, what happens when you tell a lie. In the State of Texas, it's a third-degree felony. The State could, if we wanted to, and we ...

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