REVISED
United States Court of Appeals,
Fifth Circuit.
Nos. 96-50785, 97-50159.
Pedro L. GOCHICOA, Petitioner-Appellee,
v.
Gary L. JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellant.
Aug. 4, 1997.
Appeals from the United States District Court for the Western
District of Texas.
Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Respondent Gary L. Johnson, on behalf of the State of Texas
(hereinafter the "State"), appeals the district court's grant of a
writ of habeas corpus under 28 U.S.C. § 2254 to Petitioner Pedro
Gochicoa. We reverse.
I
While responding to a call complaining of a "suspicious
person," Officer Victor Prieto of the Pecos, Texas police
department encountered Jorge Gochicoa, Pedro's brother, sitting in
a parked car near an apartment building. As Officer Prieto spoke
to Jorge, Pedro (also known as "Peter") approached the car from an
alley. Pedro greeted Officer Prieto "nervously" and said to his
brother "let's go." Officer Prieto questioned the Gochicoas
briefly and then allowed them to leave.
Immediately after the brothers left, Reeves County Sheriff's
1
Deputy Andy Gomez arrived at the scene. Deputy Gomez told Officer
Prieto that the sheriff's department had also received a call, this
time from a confidential informant, reporting that an individual
named Manuel Salcido was in the area selling heroin to Pedro
Gochicoa. Deputy Gomez and Officer Prieto then proceeded to search
the alley from which Pedro emerged. As they searched, a young man
named Michael Carrasco approached the officers and told them that
he had been watching the alley from an apartment window
approximately 100 to 150 feet away. Carrasco reported that when
Pedro rounded the corner of the alley and saw Officer Prieto, he
quickly reached into his pocket and made a motion as if he were
throwing something to the ground. Carrasco, however, did not
actually see anything leave Gochicoa's hand. Carrasco led the
officers in the direction of Gochicoa's gesture where they found a
small red balloon containing nineteen dosage units of heroin. The
officers found no other objects or refuse on the ground in the
area.
Police arrested Pedro Gochicoa two days later and charged him
with felony possession of heroin. Gochicoa pleaded not guilty to
the indictment. At his trial, the State did not identify the
confidential informant or call the informant to testify. However,
the State mentioned the call from the confidential informant
several times during its case in chief. During his opening
statement, the prosecutor made the following remark:
Deputy Gomez ... pulls up and tells [Officer Prieto] that he
has gotten a tip from a confidential informant concerning the
defendant, and they start searching the area where Pedro was
coming from for contraband that has been left behind.
2
During the prosecutor's direct examination of Officer Prieto, the
following exchange took place:
Q: Did you say anything to him [Pedro Gochicoa]?
A: No, sir.
Q: Did you have any reason at this point in time to stop him, to
investigate any crime that may have been committed, or do
anything else concerning Pedro?
A: No, sir, I had no reason.
Q: Did you in fact allow them to drive away?
A: Yes, sir.
Q: At about that time as they were driving away, did a peace
officer approach your position?
A: Yes, sir.
Q: What officer was that?
A: It was Reeves County Sheriff's Deputy Andy Gomez.
Q: Okay. And what was Deputy Gomez's purpose in being there—do you
have any idea?
A: He advised me that he had some information that Peter was
selling ...
MR. PAINTER [Gochicoa's attorney]: Your Honor, I object.
That's hearsay.
MR. ZAVODA [prosecutor]: I'll withdraw the question,
Your Honor.
THE COURT: Sustained.
Gochicoa's counsel did not ask that the answer be stricken or that
the jury be instructed to disregard the testimony. Moreover,
despite the court's ruling, the prosecutor elicited testimony from
Officer Prieto that indirectly apprised the jury of the substance
of the confidential informant's out-of-court statement:
Q: Did you and Deputy Gomez have a conversation?
3
A: Yes, sir.
Q: Without telling me what he said, based upon that conversation
did you and Deputy Gomez undertake a search?
A: Yes, sir, we did.
Q: And where were you looking at? What area were you searching?
A: We was looking on the alley mostly from where I had seen Peter
coming from.
Q: All right. And what were you looking for—yourself, personally?
A: Well, we were looking for any kind of drugs.
Gochicoa's counsel failed to object to this continuing line of
questioning.
On redirect examination of Officer Prieto, the prosecutor
again introduced the confidential informant's telephone message
into evidence without objection:
Q: Now you mentioned the name of Manuel Salcido when you were
answering questions of Mr. Painter.
A: Yes, sir.
...
Q: You called him the other suspect. Was he another person that
was supposed to be possessing heroin or selling heroin?
...
A: Yes, sir.
...
Q: And [Manuel Salcido's residence is] the general location that
Pedro was coming from, is that correct?
A: That is correct.
When Deputy Gomez took the stand, the prosecutor again
acknowledged the court's earlier ruling and admonished Gomez not to
reveal the substance of the statement.
4
Q: You cannot tell me what the confidential informant told you, but
based upon that information did you proceed to the 1000 block
of East 10th in Pecos, Reeves County, Texas?
A: Yes, I did.
...
Q: Again, based upon the information you received from the
confidential informant, did you and Victor Prieto—Officer
Prieto—conduct a search of the area where Officer Prieto was
at?
A: Yes, we did.
Q: What were you looking for?
A: I was looking for heroin is what I was looking for.
Again, Gochicoa's counsel did not object to this testimony. At
closing, the prosecutor cited the substance of the confidential
informant's tip as direct evidence against Gochicoa.
What do we know by direct evidence? ... We know that Pedro
was out at the project on August 15, 1991, at about five or
5:15 P.M. We know his brother Jorge was waiting for him to
come back from where he was at. We know that when he saw
Victor Prieto—Officer Prieto—that Pedro got nervous. We heard
that from two different witnesses, Officer Prieto and Michael
Carrasco. We know that Deputy Gomez had information from a
confidential informant that Manuel Salcido was in this area in
his home selling heroin and that Pedro was buying it at this
particular time....
Again Gochicoa's counsel failed to object to this argument.
After deliberating for approximately two hours, the jury
requested an additional definition of "possession" from the judge,
but the judge informed them that the definition of possession in
the jury instructions was the only one that he could give them.
After further deliberations, the jury announced that it was
5
deadlocked. The judge then read the jury a modified Allen charge.1
After about an hour, the jury returned a verdict of guilty. Based
on Gochicoa's prior criminal history, the jury assessed a
punishment of sixty years imprisonment.
Gochicoa's attorney filed an Anders brief,2 and withdrew from
the case. Gochicoa then filed an appeal pro se, and the Texas
court of appeals affirmed his conviction in an unpublished opinion.
Gochicoa filed a petition for writ of habeas corpus with the Texas
Court of Criminal Appeals, which denied relief without written
order. Gochicoa then filed a habeas petition in federal district
court.
In his petition, Gochicoa asserted violation of his Sixth
Amendment right of confrontation based on the admission of the
hearsay statements of the confidential informant. The State
responded that the references to the confidential informant's
statement were not hearsay at all under Texas law because they were
elicited to explain the actions of the police officers, not for the
truth of the matter asserted. The magistrate judge agreed with the
State and recommended that the writ of habeas corpus be denied.
1
Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154,
157, 41 L.Ed. 528 (1896). An Allen charge is a supplemental
instruction urging jurors to forego their differences and reach a
unanimous verdict. United States v. Winters, 105 F.3d 200, 202 n.
1 (5th Cir.1997).
2
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967), appointed counsel on appeal may move
to withdraw from a case after fully examining the facts and the law
pertaining to the case, concluding that the appeal presents no
legally non-frivolous questions, and filing a brief with the court
explaining its conclusion. United States v. Henderson, 72 F.3d
463, 464 n. 5 (5th Cir.1995).
6
After reviewing Gochicoa's objections to the magistrate judge's
findings, the district court appointed counsel to represent
Gochicoa and held an evidentiary hearing on his claims. The
district court rejected the magistrate judge's recommendation,
finding that the confidential informant's statements were offered
for the truth of the matter asserted and constituted hearsay under
Texas law. The district court further found that admission of
these hearsay statements violated Gochicoa's rights under the
Confrontation Clause of the Sixth Amendment and that the error had
a substantial and injurious effect on the jury's verdict under
Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353
(1993) (setting forth "substantial and injurious effect" test for
harmless error on habeas review). The court granted the writ,3 and
the State timely appealed. Gochicoa filed a motion for release
pending appeal, which the district court granted; we subsequently
stayed the district court's order granting release.
II
A
We review the district court's findings of fact for clear
error and review its conclusions of law de novo, applying the same
standard of review to the state court's decision as the district
court. Spence v. Johnson, 80 F.3d 989, 993 (5th Cir.), cert.
denied, --- U.S. ----, 117 S.Ct. 519, 136 L.Ed.2d 407 (1996).
3
Because the court granted the writ based on violations of the
Confrontation Clause, it declined reach Gochicoa's claims of
ineffective assistance of counsel, violation of due process, and
failure of the State to disclose the identity of the confidential
informant.
7
While Gochicoa's petition was pending before the district court,
the President signed into law the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA" or "Act"), Pub.L. No. 104-132, 110
Stat. 1214 (1996). Section 104(3) of the AEDPA amends 28 U.S.C. §
2254(d) to afford greater deference to state court judgments on
federal collateral review. The Supreme Court recently held in
Lindh v. Murphy, --- U.S. ----, ----, --- S.Ct. ----, ----, ---
L.Ed.2d ----, 1997 WL 338568 at *8 (June 23, 1997), that the new
provisions of chapter 153 of Title 28, including amended section
2254(d), do not apply to cases pending on the effective date of the
Act. This holding overrules, in part, our decision in Drinkard v.
Johnson, 97 F.3d 751, 764-66 (5th Cir.1996), cert. denied, --- U.S.
----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997).4
4
Section 107 of the AEDPA creates an entirely new chapter 154
to Title 28 providing for expedited procedures for habeas petitions
filed in capital cases. The new expedited procedures are available
only where the state satisfies certain "opt-in" requirements,
including establishing a mechanism for appointment of
post-conviction counsel for indigent prisoners and standards of
competency for such counsel. 28 U.S.C. § 2261(b); see Mata v.
Johnson, 99 F.3d 1261, 1266 (5th Cir.1996), vacated in part on
other grounds, 105 F.3d 209 (5th Cir.1997).
Section 104 of the AEDPA (amending chapter 153 of Title
28) is silent as to its applicability to pending cases;
section 107(c), however, expressly provides that the
provisions of new chapter 154 shall apply to cases pending on
the date of enactment of the Act. The Supreme Court in Lindh
held that section 107(c)'s express provision creates a
negative implication that Congress did not intend that the
amendments to chapter 153 apply to pending cases. Thus, the
new standards of review in section 2254 do not generally apply
to habeas cases pending on the date of enactment of the AEDPA.
They do, however, apply to capital cases under chapter 154;
28 U.S.C. § 2264(b) expressly provides that chapter 154
determinations are "subject to sections (a), (d), and (e) of
section 2254." Lindh, 1997 WL 338568 at *6, --- U.S. at ----,
--- S.Ct. at ----.
8
Since Gochicoa filed his habeas petition in district court
prior to April 24, 1996, the date of the AEDPA's enactment, we must
apply the pre-AEDPA standards of review to the state court's
determination. Lindh, 1997 WL 338568 at *8, --- U.S. at ----, ---
S.Ct. at ----. Whether admission of hearsay evidence violated a
defendant's Sixth Amendment right of confrontation is a mixed
question of law and fact that we review de novo under former 28
U.S.C. § 2254(d). See Perillo v. Johnson, 79 F.3d 441, 445 (5th
Cir.1996) (noting that federal habeas court reviews state court
determinations of mixed questions de novo ); see also Swan v.
Peterson, 6 F.3d 1373, 1379 (9th Cir.1993) (holding that whether
Confrontation Clause is violated is mixed question of law and fact
subject to de novo review).
B
We pause to note that after his initial objection, Gochicoa
failed to object to the admission of the confidential informant's
statements. Gochicoa therefore waived any hearsay or Confrontation
Clause objection under Texas's contemporaneous objection rule.
Tex.R.App. P. 52(a) ("In order to preserve a complaint for
appellate review, a party must have presented to the trial court a
Lindh involved a noncapital case. Drinkard, on the
other hand, involved a capital case. However, the special
provisions of chapter 154 did not apply to Drinkard's petition
because Texas does not yet qualify for expedited procedures under
28 U.S.C. § 2261(b). See Mata, 99 F.3d at 1266-67. Therefore,
Lindh overrules Drinkard insofar as it holds that the AEDPA's new
standards of review in 28 U.S.C. § 2254 apply to cases not subject
to chapter 154, whether capital or noncapital, pending on the date
of enactment of the AEDPA. See, e.g., Blankenship v. Johnson, 106
F.3d 1202, 1204 (5th Cir.1997) (applying Drinkard to noncapital
case).
9
timely request, objection or motion, stating the specific grounds
for the ruling he desired the court to make if the specific grounds
were not apparent from the context."); Tapia v. State, 933 S.W.2d
631, 633 (Tex.App.1996, writ ref'd). Where a state court has
declined to review a criminal defendant's federal claims for
failure to comply with state procedural rules, a federal court on
habeas review may not address those claims absent a showing of
"cause" and "actual prejudice." Wainwright v. Sykes, 433 U.S. 72,
87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977).
However, "the procedural default rule bars federal
jurisdiction only if the state court denied relief because of the
defendant's violation of state procedural requirements. The mere
existence of a procedural default, without more, does not deprive
federal courts of jurisdiction." Shaw v. Collins, 5 F.3d 128, 131
(5th Cir.1993). Instead, the state court must have actually relied
on the procedural bar as a separate and independent reason for
denying the claim. Id. Where the state court does not clearly and
expressly rely on procedural default to dispose of the case, we may
address the merits of the petition. Coleman v. Thompson, 501 U.S.
722, 735, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991).
In this case, neither the state court of appeals on direct
review nor the Texas Court of Criminal Appeals on collateral attack
relied on an independent and adequate state procedural bar in
rejecting Gochicoa's claims. At any rate, the State does not
assert Gochicoa's failure to comply with the contemporaneous
objection rule as a bar to our consideration of his claims on
10
appeal, nor did it raise procedural default in opposition to
Gochicoa's petition in district court. See Jenkins v. Anderson,
447 U.S. 231, 234 n. 1, 100 S.Ct. 2124, 2127 n. 1, 65 L.Ed.2d 86
(1980) (holding that state waived procedural bar to habeas
petitioner's claims where it failed to raise issue in district
court or on appeal). Therefore, Gochicoa's failure to object to
the admission of the out-of-court statements of the confidential
informant does not prevent our consideration of his Confrontation
Clause claims on habeas review.
C
We must first determine whether the various references at
trial to the confidential informant's tip constituted hearsay.
What is or is not hearsay evidence in a state court trial is
governed by state law. Cupit v. Whitley, 28 F.3d 532, 536 (5th
Cir.1994), cert. denied, 513 U.S. 1163, 115 S.Ct. 1128, 130 L.Ed.2d
1091 (1995). Under Texas law, hearsay is defined as "a statement,
other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter
asserted." Tex.Crim. Evid. R. 801(d). We agree with the district
court that the prosecutor offered the confidential informant's
out-of-court statement not only to explain the officers' actions at
the scene, but also for its truth—that is, that Gochicoa was buying
heroin from Manuel Salcido. Although a testifying officer may
refer to a tip from a confidential informant in order to show why
he happened upon the scene of a crime, the officer may not
otherwise relate the substance of that communication to the jury.
11
Schaffer v. State, 777 S.W.2d 111, 114-15 (Tex.Crim.App.1989) (en
banc). Similarly, the prosecutor may not "circumvent the hearsay
prohibition through artful questioning designed to elicit hearsay
indirectly." Id. at 114. This is exactly what the prosecutor did
in this case; his questioning of both Officer Prieto and Deputy
Gomez concerning Manuel Salcido as "the other suspect ... that was
supposed to be possessing heroin or selling heroin" left little
doubt as to the substance of the confidential informant's
communication to police. The prosecutor quelled any remaining
doubt in the minds of the jurors when, during closing argument, he
explicitly told them what the informant had said, citing the tip as
"direct evidence" that Gochicoa possessed drugs on the night in
question. The State's argument that the prosecutor offered the
informant's communication for the sole purpose of explaining the
officers' actions is without merit; the prosecutor elicited far
more information than necessary for the stated purpose. Id. at 115
n. 4 (noting that where, as here, "the officer's actions (e.g., an
arrest or a search) are not put into question before the jury,
testimony that the officer acted upon "information received" or
words to that effect should be sufficient"). The statements of the
informant were offered for the truth of the matter asserted and are
therefore hearsay under Texas law.
However, a federal court may grant habeas relief based on an
erroneous state court evidentiary ruling only if the ruling also
violates a specific federal constitutional right or renders the
petitioner's trial fundamentally unfair. Cupit, 28 F.3d at 536.
12
Gochicoa asserts that the admission of the hearsay statements
violated his rights under the Sixth Amendment—made applicable to
the states by the Fourteenth Amendment—which provides that "[i]n
all criminal prosecutions, the accused shall enjoy the right ... to
be confronted with the witnesses against him...." The
Confrontation Clause reflects a preference for face-to-face
confrontation at trial to allow the accused to test the
recollection and motives of the witness through cross-examination
and to allow the jury to judge the credibility of the witness by
his demeanor. Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531,
2537-38, 65 L.Ed.2d 597 (1980).
Although the protections of the Confrontation Clause and the
hearsay rule overlap, they are not coextensive; "the
[Confrontation] Clause does not necessarily prohibit the admission
of hearsay statements against a criminal defendant, even though the
admission of such statements might be thought to violate the
literal terms of the Clause." Idaho v. Wright, 497 U.S. 805, 813,
110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990). The wrongful
admission of hearsay evidence violates the Confrontation Clause
only when the evidence was a "crucial, critical or highly
significant factor in the framework of the whole trial." Cupit, 28
F.3d at 537. In making this determination, we consider five
general factors derived from the Supreme Court's opinion in Dutton
v. Evans, 400 U.S. 74, 87, 91 S.Ct. 210, 219, 27 L.Ed.2d 213
(1970):
(1) whether the hearsay evidence was "crucial" or "devastating";
13
(2) whether prosecutors misused a confession or otherwise engaged
in misconduct;
(3) whether a joint trial or the wholesale denial of
cross-examination was involved;
(4) whether the most important prosecution witness, as well as
other prosecution witnesses, was available for
cross-examination; and
(5) the degree to which the hearsay evidence is supported by
"indicia of [its] reliability."
Cupit, 28 F.3d at 532 (citing Johnson v. Blackburn, 778 F.2d 1044,
1051 (5th Cir.1985)).
Examination of precedent indicates that the most important of
the five factors are the first and the fifth—whether the evidence
was "crucial" or "devastating" and whether it is supported by
indicia of reliability. For example, the Supreme Court holds that
the reliability of hearsay evidence is generally determinative of
whether an out-of-court statement may be properly admitted at trial
under the Confrontation Clause. Dutton, 400 U.S. at 89, 91 S.Ct.
at 220. A statement of an unavailable witness is sufficiently
reliable only if it falls within a firmly rooted exception to the
hearsay rule or if it carries particularized guarantees of
trustworthiness. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. The
determination of whether the evidence is "crucial" or
"devastating," on the other hand, recognizes that the erroneous
admission of unreliable hearsay may nonetheless be harmless in
light of other evidence at trial; by examining whether hearsay was
"crucial" or "devastating," the court seeks to determine whether
the impermissible hearsay evidence was sufficiently damaging to the
defense to warrant reversal. United States v. Sarmiento-Perez, 633
14
F.2d 1092, 1103 n. 6 (5th Cir.1981), cert. denied, 459 U.S. 834,
103 S.Ct. 77, 74 L.Ed.2d 75 (1982); see also Cupit, 28 F.3d at 537
(holding that Confrontation Clause inquiry must determine not only
whether hearsay evidence is admissible but also whether it is
"material," i.e., whether it was "crucial" or "critical" in the
"framework of the whole trial").5
After examining the state court record with all of these
considerations in mind, we conclude that use of the hearsay
evidence at trial did not violate the Confrontation Clause under
the Cupit test. On the one hand, the government concedes that the
hearsay statements of the informant do not fall within a firmly
rooted exception to the hearsay rule or carry any particularized
indicia of reliability. The identity, perception, and biases of
the informant are unknown, as is the basis for his or her knowledge
of the facts reported to police. On the other hand, however, the
hearsay evidence was neither crucial to the prosecution nor
devastating to the defense in the context of the trial as a whole.
In granting the writ, the district court found that the
hearsay was crucial and devastating because it was the only
evidence that directly linked Gochicoa to the heroin; "no fact
5
The "crucial" and "devastating" prong of the test is
therefore somewhat redundant in light of the harmless error rule.
Sarmiento-Perez, 633 F.2d at 1103 n. 6 (noting that although
"[m]uch has been made of the "crucial' and "devastating' language
in Dutton and Douglas," test simply restates harmless error rule);
United States v. Bernard S., 795 F.2d 749, 754 n. 6 (9th Cir.1986)
(noting redundancy of "crucial" and "devastating" prong and
explaining that "a showing that the hearsay evidence was not
"crucial' can lead to either a finding that the confrontation
clause was not violated or a finding that such a violation was
harmless").
15
offered into evidence at trial was as convincing of guilt as the
substance of the informant's statement that Petitioner was buying
heroin." However, the tip from the informant standing alone did
not connect Gochicoa to the balloon of heroin found in the public
alleyway; only Carrasco's testimony established an immediate,
albeit circumstantial, link between Gochicoa and the drugs.
Carrasco testified that, as soon as Gochicoa spotted Officer
Prieto, he reached into his pocket and made a gesture as if he were
throwing something to the ground. On the basis of this information
alone, Deputy Gomez found the balloon filled with heroin. Both
Officer Prieto and Deputy Gomez testified that there were no other
objects or refuse on the ground within a ten yard radius of the
area. Carrasco's testimony, coupled with Gochicoa's nervous
behavior, presented strong circumstantial evidence that Gochicoa
had exercised direct physical control over the heroin. See Mills
v. State, 847 S.W.2d 453, 455 (Tex.App.1993, writ ref'd) (finding
sufficient affirmative links to contraband to support conviction
where police officer testified that defendant threw something into
closet and only object found in closet that could have been thrown
was vial of cocaine). Although the informant's tip certainly
bolstered the state's case, it was not "crucial or devastating"
given Carrasco's testimony.6
6
Nor do we find persuasive the district court's assertion that
the jurors' difficulties during deliberation demonstrate that their
verdict hinged on the prohibited testimony. The jury's request for
an additional "possession" instruction is at best ambiguous; the
most likely interpretation of the jurors' request is that they
disagreed as to whether Gochicoa could be guilty of possessing
contraband not found on his person.
16
The most important prosecution witness was, therefore,
Carrasco, not the hearsay declarant. Gochicoa had a full and fair
opportunity to cross-examine Carrasco, as well as all other
prosecution witnesses. Furthermore, the prosecutor's use of the
hearsay evidence did not constitute prosecutorial misconduct; the
hearsay statements, once admitted in evidence without objection,
were a proper subject of the prosecutor's closing argument.7 Lopez
v. State, 632 S.W.2d 709, 713 (Tex.App.1982, no writ); see also
Lacoste v. Blackburn, 592 F.2d 1321, 1325 (5th Cir.) (finding no
prosecutorial misconduct under Dutton test where prosecutor joined
court in admonishing testifying officer to omit reference to
substance of confidential tip), cert. denied, 444 U.S. 968, 100
S.Ct. 458, 62 L.Ed.2d 381 (1979). Therefore, the Cupit factors
weigh against a finding that admission of the hearsay statements of
the confidential informant violated the Confrontation Clause.
III
For the foregoing reasons, we REVERSE the district court's
grant of the writ of habeas corpus and REMAND for consideration of
Gochicoa's remaining claims.
E. GRADY JOLLY, Circuit Judge, dissenting:
I agree with much of the majority's analysis. In the end,
however, I must conclude that the impermissibly admitted hearsay in
7
Otherwise inadmissible hearsay admitted without objection is
treated the same as any other evidence, and may be considered by
the jury in support of its verdict. Chambers v. State, 711 S.W.2d
240, 247 (Tex.Crim.App.1986); Tex.Crim. Evid. R. 802
("Inadmissible hearsay admitted without objection shall not be
denied probative value merely because it is hearsay.").
17
this case was "devastating" to the defense and was unsupported by
any indicia of reliability. I would therefore affirm the district
court's judgment, and I respectfully dissent.
The majority opinion correctly notes that the district court's
grant of habeas relief in this case is appropriate only if (a) the
state court erroneously admitted hearsay, and (b) the admission of
this hearsay violated Gochicoa's rights under the Confrontation
Clause. Maj. Op. at ----. I agree with the majority's conclusion
that hearsay was improperly admitted in this case. Id. The only
question, therefore, is whether this improper admission of hearsay
violated the rights guaranteed by the Confrontation Clause.
The majority opinion is further correct in concluding that the
most important factors in determining whether the Confrontation
Clause has been violated is whether the improperly admitted
evidence was "crucial" or "devastating" and whether it was
supported by any independent "indicia of reliability." Maj. Op. at
----. Applying these factors, the majority nevertheless concludes
that, although the impermissible hearsay was supported by no
independent indicia of reliability, its admission did not violate
Gochicoa's constitutional rights, because the evidence was neither
crucial to the prosecution nor devastating to Gochicoa's defense.
With this ultimate conclusion, I disagree.
The majority holds that "although the informant's tip
certainly bolstered the state's case, it was not "crucial or
devastating' given [Michael] Carrasco's testimony." Maj. Op. at --
--. Carrasco's testimony was indeed damaging to Gochicoa:
18
Carrasco testified that he had watched Gochicoa walk through the
alleyway and observed Gochicoa reach into his pocket and make a
gesture as though he was throwing something to the ground. In
addition, Carrasco testified that Gochicoa became nervous when he
saw the police officers. The police found a balloon containing
heroin after being directed to the location by Carrasco, and found
no other objects within the immediate area.
Although this evidence may well support a verdict of guilt,8
it does not compel such a verdict. The balloon containing heroin
was found in a public area—an area in which drug trafficking may
have been common. Carrasco testified that he observed Gochicoa
from a distance of 100 to 150 feet, and although he observed
Gochicoa gesture as though discarding something, he saw nothing
leave his hand. Thus, Carresco was unable to directly link
Gochicoa to the drugs. Although nervousness and an unexplained
gesture provide some nexus between Gochicoa and the drugs, the
evidence that Gochicoa was in the area to buy heroin provides a
crucial link between the defendant and the drugs. Therefore, the
hearsay testimony from an unidentified informant surely made a
unanimous verdict substantially easier to reach, and was
devastating to the defense.
The importance of the improperly admitted hearsay is
8
I can agree that the properly admitted evidence in this case
was sufficient to allow a rational jury to convict Gochicoa, but
that is not a question before this court today. A Confrontation
Clause violation may occur when inadmissible evidence was
devastating to the defense, even if the properly admitted evidence,
viewed in isolation, is sufficient to sustain the verdict.
19
underscored by the prosecution's repeated reliance upon it. In the
opening statement, throughout the trial, and in closing argument,
the prosecutor relied upon information from the confidential
informant to link Gochicoa to the drugs. In the closing argument,
the prosecutor told the jury:
What do we know by direct evidence? We know that Pedro
Gochicoa was out at the project on August 15th, 1991, at about
five or 5:15 P.M. We know his brother Jorge was waiting for
him to come back from where he was at.
We know that when he saw [Officer Prieto] that Pedro Gochicoa
got nervous. We heard that from two different witnesses,
Officer Prieto and Michael Carrasco.
We know that Deputy Gomez had information from a confidential
informant that Manuel Salcido was in this area in his home
selling heroin and that Gochicoa was buying it at this
particular time.
I am unable to conclude that the jury was not substantially
influenced by this impermissibly admitted evidence. Therefore, the
evidence provided by the informant was devastating to Gochicoa's
case.9
9
The majority opinion cites Mills v. State, 847 S.W.2d at 455,
to support the conclusion that the informant's information was not
critical in this case. In Mills, the Texas court rejected a
criminal defendant's contention that the evidence was insufficient
to show that he knowingly possessed cocaine.
Because Mills involved a challenge to the sufficiency of
evidence supporting a conviction, it is of little relevance to
our issue today. Resolving a sufficiency of the evidence
issue requires the court to resolve only whether a minimally
sufficient evidence exists to support a conviction. In
contrast, in reviewing a Confrontation Clause challenge, we
determine if the jury was improperly influenced by the
impermissible evidence.
Moreover, Mills is distinguishable from the case before
us today. In Mills, police officers entered the defendant's
residence pursuant to a search warrant. The officers observed
the defendant throw something into an open closet. In
20
In addition to determining whether inadmissible evidence is
"crucial or devastating," we must also evaluate the reliability of
the hearsay. As the majority opinion recognizes, "the Supreme
Court holds that the reliability of hearsay evidence is generally
determinative of whether an out-of-court statement may be properly
admitted at trial under the Confrontation Clause." Maj. Op. at ---
-. When hearsay evidence is improperly admitted, has no indicia of
reliability, and makes a conviction substantially easier to obtain,
the Confrontation Clause has been violated. The majority concedes
that the hearsay statements of the informant have no indicia of
reliability: the "identity, perception, and biases of the
informant are unknown, as is the basis for his or her knowledge of
the facts reported to police." Yet, the majority hold that
Gochicoa's Sixty Amendment rights have not been violated.
Apparently, the United States Supreme Court has no influence with
the majority members of this panel.
In sum, because the impermissibly admitted hearsay was
"devastating" to Gochicoa's defense, and was not supported by any
independent indicia of reliability. I would therefore affirm the
district court's grant of habeas corpus but would permit the state
to retry Gochicoa.10
contrast to the testimony in this case, the officer saw the object
leave the defendant's hand, and was able to identify
its approximate size. More importantly, the defendant was in his
private residence when this event occurred, in sharp contrast to
the instant case, where the contraband was found in a public area.
10
Although Gochicoa has not prevailed today, on remand the
district court will undoubtedly carefully consider whether Gochicoa
21
received adequate representation at his initial trial.
22