Affirmed and Opinion Filed September 1, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00202-CR
CODY HARRIS HERD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 070022
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Garcia
Opinion by Justice Partida-Kipness
Appellant Cody Harris Herd appeals his conviction for possession of a
controlled substance, penalty group one, with intent to deliver. In a single issue, Herd
complains the trial court violated his Sixth Amendment right to confrontation by
admitting testimonial, out-of-court statements of confidential informants. Finding
any error harmless, we affirm the judgment.
BACKGROUND
On September 11, 2018, Sergeant Shane Kumler and Sergeant Troy Laroche
of the Denison Police Department executed a search warrant at Herd’s residence and
arrested Herd for possession of methamphetamine with intent to deliver. A grand
jury indicted Herd for possession, with intent to deliver, methamphetamine in an
amount of four grams or more but less than two hundred grams. Herd pleaded not
guilty and the case proceeded to a jury trial in January 2020. A jury found Herd
guilty and assessed punishment of life imprisonment.
I. Affidavit for Search Warrant
In his sole issue on appeal, Herd complains of the trial court’s denial of his
requests for the State to identify confidential informants addressed in Sergeant
Kumler’s affidavit for search warrant. In that affidavit, Kumler stated that “[o]ver
the past several months [he] has received information from Confidential Sources and
Confidential Informants” that Herd is “involved in the distribution of
methamphetamine in the Denison, Grayson County, Texas area” and that Herd
resides at 2425 West Morton Street in Denison. Kumler went on to discuss
information received from three confidential informants and three named
informants:
CI-1 told Kumler that three individuals, Johnny Fretwell, Patricia
Holt, and Robert Brown, were distributing or selling
methamphetamine, and Herd supplied the methamphetamine to
them.
CI-1 also told Kumler that Herd lived on Morton Street and drove
a black motorcycle and maroon truck.
Kumler executed a search warrant at Patricia Holt’s apartment
and found Holt and approximately seven grams of
methamphetamine inside. Holt told Kumler that Herd supplied
her with methamphetamine.
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Jessica Michelle Matthews advised Investigator Dustin Stacks
that she had been to Herd’s residence on Morton Street on several
occasions to purchase methamphetamine from Herd.
Informant Harley Joe Grimes also told Stacks that he had
purchased ¼ ounce of methamphetamine from Herd within the
prior two months.
CI-2 contacted Stacks and stated that he/she observed Herd in
possession of over a half a pound of methamphetamine within
the prior twenty-four hours.
Kumler met with CI-3 on September 10, 2018 at a predetermined
location to set up a controlled buy from Herd.
Kumler then discussed the controlled buy between CI-3 and Herd and explained his
belief that methamphetamine has and is currently being sold from or stored at Herd’s
residence. A judge issued a search warrant as requested by Kumler. Herd was
arrested and indicted as a result of Kumler and Laroche’s execution of the warrant
and search of Herd’s home.
II. Pretrial Motions
On April 5, 2019, Herd filed a motion to reveal the identity of the confidential
informants discussed in Kumler’s affidavit. Herd argued that the informants were
necessary to a fair determination of his guilt or innocence and, as such, the State was
required to identify the informants under Rule 508(c)(2) of the Texas Rules of
Evidence. He further argued that the failure of the State to disclose the informants’
identities would deprive Herd of potentially exculpatory and mitigating evidence
and also of the right to subpoena the informants as witnesses favorable to Herd under
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the Sixth Amendment to the Constitution of the United States, the Texas
Constitution, and Article 1.05 of the Texas Code of Criminal Procedure.
At the pretrial hearing on the motion, the parties’ counsel informed the court
that they had reached an agreement on the motion. The State told the trial court that
the State “will burn the CI in that case.” On August 28, 2019, the trial court signed
an order granting Herd’s motion and ordering the state to comply at least twenty
days before trial. The State identified CI-3 before trial but refused to identify the
remaining two informants. The State filed a “Memorandum” on December 20, 2019
setting out the State’s arguments for why the State was not required to turn over the
informants’ identities. On December 26, 2019, Herd filed his response to the State’s
Memorandum and re-urged his motion to compel identification of all three
confidential informants listed in Kumler’s affidavit.
The case was called to trial on January 13, 2020. Before voir dire and without
hearing arguments of counsel, the trial court denied Herd’s motion to compel
disclosure of the two remaining confidential informants. The trial court did,
however, inform Herd that he would be permitted to voir dire Kumler outside the
presence of the jury during trial if needed about the use of the informants. Herd’s
counsel did just that before opening statements. During the examination, Kumler
confirmed the statements made in his affidavit. He also confirmed that CI-1 and
CI- 2 were not in the house with Herd shortly before he served the warrant and were
not present at the scene when Herd was arrested. Kumler also told the court that,
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although CI-1 and CI-2 gave him Herd’s address and a description of his vehicle,
the locations of where CI-1 and CI-2 interacted with Herd had nothing to do with
the information Kumler put in the warrant. The trial court overruled Herd’s request
for relief.
III. Trial
The guilt-innocence phase of trial was relatively short. The State called only
two witnesses in its case-in-chief; Sergeant Kumler and forensic scientist Hannah
Sigal. Kumler began his testimony by explaining how methamphetamine is
distributed and sold in Grayson County. He explained that some methamphetamine
is brought in from Mexico. In that circumstance, the buyer wires money to the dealer
in Mexico who in turn hires a runner in the DFW metroplex to deliver what is often
“pounds of methamphetamine at a time.” But there are also local distributers and
buyers in the metroplex. According to Kumler, “numerous people” drive to the
metroplex to buy methamphetamine, pick up between an ounce to a couple of pounds
of methamphetamine, bring it back to Grayson County, and then sell it. Kumler told
the jury that a dealer selling to dealers may buy a pound and then sell it by the ounce,
but other people buy an ounce and come back to Grayson County and sell it by the
gram. Kumler testified that methamphetamine has flooded the market because it is
inexpensive to make and to buy. He explained that ten to twelve years ago, the police
department would buy an ounce of methamphetamine for $1,200. Now, the price is
only $250 an ounce.
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Kumler then explained to the jury that there are many different ways for law
enforcement to get the names of people selling drugs in Grayson County. Those
include tips from citizens who want to help officers as well as information from
confidential informants who may have been arrested and would rather give officers
information than go to jail. Kumler testified over Herd’s hearsay objection that he
became interested in Herd in 2018 after informants provided information that Herd
“was the source. He was the dealer’s dealer, is how originally it began.” According
to Kumler, that information came from several places. Kumler then explained how
they were able to obtain the search warrant for this case:
Q. Okay. And in relation specifically to how we ultimately got this
search warrant for this case, tell the jury how we got to that point, sir.
A. It was receiving information from different people, different
informants, surveillance by several members of the task force, and we
performed what we call a controlled buy. And what we do there is, I
use an informant who is able to buy methamphetamine from someone.
Meet with them, furnish them with the money to buy, furnish them with
the recording equipment, and we will send them to a location -- usually
that’s already predetermined -- and they will purchase the narcotic --
or, methamphetamine in this case -- for me under my direction.
After they make the purchase, they meet with me again. I take
possession of the recording device, the methamphetamine. The
informants are searched or frisked prior to and after to make sure they
didn’t bring the narcotic with them and they’re not leaving with
anything. And that’s ultimately how this ended up with a search
warrant.
Q: You also – did you also bust several other people who proffered
information that Cody Herd had – they had been inside Cody Herd’s
house and he was selling them drugs?
A: That’s correct.
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Q. Okay. Ultimately, did you decide to utilize one of your confidential
informants to make a buy from Mr. Herd?
A. I did.
Q. Okay. Tell the judge not that person’s name but just kind of
specifically what you did with him.
A. Just that. That day, we -- he had agreed to purchase
methamphetamine from Mr. Herd. Because we were trying to obtain a
search warrant for the residence, which is where we thought he was
storing most of his methamphetamine, we tried to buy from him at the
residence. So, we sent the informant -- after meeting with them and
furnishing them with the money and the recording device, he went to
Mr. Herd’s house. Mr. Herd wasn’t there.
He came back and met with me again. I’m trying to -- I don’t know if
it was through text message or actually a phone call. He talked to Mr.
Herd. Herd agreed to bring him the methamphetamine to his residence.
So, the informant went to his residence. Myself and Sergeant Laroche
began watching Mr. Herd’s house. Laroche stayed on his house. I
stayed in between the house and where the informant was living.
Shortly after Mr. Herd said he would deliver the methamphetamine, he
arrived at his residence on Morton Street. Within five to 10 minutes he
left his house, drove directly to the informant’s house, and the purchase
was made.
Kumler had given the informant $160 to buy $100 in methamphetamine and
to pay Herd the $60 the informant owed Herd from a prior transaction. Kumler gave
the informant the cash in $20 bills and made photocopies of the bills so that he had
a record of the serial numbers on the bills. After the buy, the informant brought
Kumler the methamphetamine he purchased from Herd. It was Kumler’s opinion
that the amount of methamphetamine purchased was an appropriate amount for a
$100 purchase. Kumler then continued his explanation of how he obtained the search
warrant to search Herd’s house following the controlled buy:
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Q. Okay. So, we’ve now – you’ve gotten the independent sources.
We’ve done the controlled buy where the defendant sold to a CI. What
next?
A. Then I obtained a search warrant for Mr. Herd’s residence.
Q. Tell the jury how one goes about getting a search warrant in a
situation like this.
A. Well, the search warrants, you’re going to have to develop probable
cause that the district judge or whatever judge you take it to believes
that the person is utilizing the residence to either store or distribute
whatever item you’re alleging, which in this was methamphetamine.
The fact that we had information from people who had seen Mr. Herd
in possession, the fact that we ordered methamphetamine from Mr.
Herd, he left from his residence, drove directly to my informant, in my
opinion, is probable cause for a search warrant on the residence.
Q. And did, in fact, a district judge sign a search warrant?
A. That's correct.
A few hours after obtaining the warrant, he and Laroche served the warrant on Herd
and arrested him outside of his home on Morton Street. Kumler testified that they
searched Herd and found $441 in his wallet. Four of the eight $20 bills they had used
the day before to buy the methamphetamine were included in the money in Herd’s
wallet.
Kumler, Laroche, and additional officers then searched the house. In the living
room, they found a bag containing approximately eight grams of methamphetamine,
and a Springfield XD 9 semi-automatic handgun with a clip loaded with 16 bullets.
In the dining room, they found a plastic box with four smaller plastic bags inside.
Two of those bags contained methamphetamine – 14 grams in one and 28 grams in
another. The third bag contained a small amount of marijuana, and the fourth bag
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contained several different types of pills. Kumler told the jury that, in his experience,
methamphetamine users typically have a single bag with under a gram of
methamphetamine in it, but methamphetamine dealers have more like what they
found in Herd’s house. He also testified that in drug houses where someone is selling
methamphetamine, he usually finds a large amount of methamphetamine, digital
scales to weigh the methamphetamine, plastic baggies to package the
methamphetamine, weapons, firearms, surveillance systems, and more drugs.
According to Kumler, they found all of those items in Herd’s house. Kumler then
told the jury that this was a substantial amount of methamphetamine for the area and
it was individually packaged for distribution. It was his opinion that Herd
intentionally or knowingly possessed methamphetamine between 4 and 200 grams
with the intent to deliver and by arresting Herd, the Denison Police Department took
a drug dealer off the streets.
After the State passed the witness, Herd’s counsel asked to take up an
objection outside the presence of the jury, and the court proceeded without the jury
present. Herd’s counsel made the following arguments concerning Kumler’s
testimony:
HERD’S COUNSEL: The -- previously the Court had ruled that the --
this witness would not have to reveal informants that were used in his
warrant. At that time, there was no -- there was no statements of any
witnesses that had been presented to the jury. In his testimony today in
front of the jury, he did make statements that were told -- that were
provided to him by multiple people, and those statements specifically
were that this defendant was involved in drug distribution.
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Now, that was admitted over objection. The purpose being described
by the prosecuting attorney that the information was used to procure the
warrant. We believe that the defendant has a right to have witnesses in
his defense. Those witnesses’ statements have been put in front of the
jury as being used to obtain the warrant, and we will intend to question
the witness about the identity of the persons that gave all of those
statements.
THE STATE: I’m reading the rules of evidence, Judge. I still don’t see
an exception for that. It’s -- the facts are the exact same as the facts the
Court’s already considered. There’s nothing new here. Everything I
asked this witness were the exact same questions -- strike that -- were
the same -- involved the same material that was used in the search
warrant. I didn’t ask anything outside of that. And so, I would just direct
the Court to our briefs, and on Rule 508, there’s – there’s nothing to be
shown. These informants can -- their testimony is necessary to a fair
determination of guilt or innocence. It’s simply probable cause for a
search warrant as is in every case involving search warrants and
confidential informants in this country.
HERD’S COUNSEL: Further argument, Your Honor?
THE COURT: Yes.
HERD’S COUNSEL: Your Honor, the -- the State could have simply
talked about a warrant being obtained and being -- probable cause being
assessed by the reviewing magistrate, but, instead, they chose to label
the activity of the defendant as him providing drugs and that it came
from several people. The defendant, if he does not know who they are,
will not have a chance to confront -- confront accusers
The trial court overruled the objection and instructed counsel not to question the
witness as to the informants’ identities. On appeal, Herd complains that his Sixth
Amendment right to confront witnesses was violated by the trial court’s order
denying Herd’s request for the identities of the confidential informants.
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STANDARD OF REVIEW
The admission or exclusion of evidence is reviewed for abuse of discretion.
Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); Henley v. State, 493
S.W.3d 77, 82–83 (Tex. Crim. App. 2016). “Under this standard, the trial court’s
decision to admit or exclude evidence will be upheld as long as it was within the
‘zone of reasonable disagreement.’” Beham, 559 S.W.3d at 478.
APPLICABLE LAW
In a single issue, Herd asserts that he was denied his Sixth Amendment right
to confront witnesses because the trial court admitted out-of-court statements by
confidential informants through a testifying officer and ordered Herd’s counsel not
to ask the identity of those informants. The Confrontation Clause of the Sixth
Amendment to the United States Constitution provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him; . . . .” U.S. CONST. amend. VI. To protect this right,
“testimonial” evidence is inadmissible at trial unless the witness who made the
statement either takes the stand to be cross-examined or is unavailable and the
defendant had a prior opportunity to cross-examine him. Crawford v. Washington,
541 U.S. 36, 53–54, 59 (2004); Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim.
App. 2013); De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). Once
a defendant raises a Confrontation Clause objection, the State bears the burden to
establish either that the evidence does not contain testimonial hearsay statements or,
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if it does contain testimonial hearsay statements, that those statements are
nevertheless admissible under Crawford. De La Paz, 273 S.W.3d at 681; Abarca v.
State, No. 08-19-00038-CR, 2021 WL 268154, at *17 (Tex. App.—El Paso Jan. 27,
2021, pet. refused) (not designated for publication).
The Sixth Amendment does not bar the use of nontestimonial hearsay.
Sanchez v. State, 354 S.W.3d 476, 485 (Tex. Crim. App. 2011); Infante v. State, 404
S.W.3d 656, 664 (Tex. App.—Houston [1st Dist.] 2012, no pet.). The threshold
inquiry for a Confrontation Clause violation is, therefore, whether the admitted
statements are testimonial in nature. Vinson v. State, 252 S.W.3d 336, 338 (Tex.
Crim. App. 2008); see also Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App.
2011) (concluding, in reviewing Confrontation Clause challenge, appellate courts
must “first determine whether the Confrontation Clause is implicated[,]” that is,
whether an out-of-court statement was made by a witness absent from trial and
testimonial in nature).
Whether a statement is testimonial is a constitutional legal question that we
review de novo. Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010);
Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). Testimonial statements
are typically solemn declarations made for the purpose of establishing some fact.
Crawford, 541 U.S. at 51; Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App.
2005). This typically occurs “when the surrounding circumstances objectively
indicate that the primary purpose of the [communication] is to establish or prove past
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events potentially relevant to later criminal prosecution.” De La Paz, 273 S.W.3d at
680; see also Davis v. Washington, 547 U.S. 813, 822 (2006) (statements are
testimonial “when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish
or prove past events potentially relevant to later criminal prosecution”).
“While the exact contours of what is testimonial continue to be defined by the
courts, such statements are formal and similar to trial testimony.” Burch, 401 S.W.3d
at 636. Testimonial statements include: (1) “ex parte in-court testimony or its
functional equivalent,” i.e., “pretrial statements that declarants would reasonably
expect to be used prosecutorially”; (2) “extrajudicial statements contained in
formalized testimonial materials,” such as affidavits, depositions, or prior testimony;
and (3) “statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use
at a later trial.” Langham, 305 S.W.3d at 576 (citing Wall, 184 S.W.3d at 735–36).
When considering whether a statement is testimonial or non-testimonial, we give
almost total deference to the trial court’s determination of historical facts and review
de novo the trial court’s application of the law to those facts. Wall, 184 S.W.3d at
742 (applying hybrid standard of review to issue of whether statement was
testimonial); Mason v. State, 225 S.W.3d 902, 906–07 (Tex. App.—Dallas 2007,
pet. ref'd) (same).
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Error in admitting evidence in violation of a defendant’s right to confront the
witnesses against him is constitutional error, which requires reversal unless the
reviewing court determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a); Langham, 305
S.W.3d at 582. When determining whether a confrontation clause error is harmless,
we consider: (1) how important the out-of-court statement was to the State’s case;
(2) whether the out-of-court statement was cumulative of other evidence; (3) the
presence or absence of evidence corroborating or contradicting the out-of-court
statement on material points; and (4) the overall strength of the prosecution’s case.
Langham, 305 S.W.3d at 582. We must be satisfied, to a level of confidence beyond
a reasonable doubt, that the error did not contribute to the conviction. Id.
WAIVER
As a preliminary manner, we address the State’s contention that Herd waived
his Confrontation Clause complaint by not asserting it in the trial court. We disagree.
Herd asserted the Confrontation Clause in his pretrial motion to compel the State to
reveal the identities of the confidential informants and cited his right to confrontation
as part of his objection and renewed motion during trial following the direct
examination of Kumler. He, therefore, preserved error on this issue by drawing the
trial court’s attention to his Confrontation Clause complaint during Kumler’s trial
testimony. TEX. R. APP. P. 33.1; see Layton v. State, 280 S.W.3d 235, 240 (Tex.
Crim. App. 2009) (circumstances surrounding the defendant's objection and the trial
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court’s ruling made it clear that the trial court was aware of the basis of the
defendant’s objection); but cf. Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim.
App. 2004) (appellant failed to preserve error on Confrontation Clause grounds at
trial by asserting only a hearsay objection to the testimony at trial).
ANALYSIS
Moving to the merits of Herd’s appeal, we must first determine whether the
statements of the confidential informants revealed by Kumler at trial were
testimonial in nature. Vinson, 252 S.W.3d at 338 (threshold inquiry for a
Confrontation Clause violation is whether the admitted statements are testimonial in
nature). Kumler testified that he became interested in Herd after receiving
information from informants that Herd “was the source. He was the dealer’s dealer,
. . .” Kumler also obtained information from other people that they had been inside
Herd’s house and bought methamphetamine from him. Kumler testified that the
information from the informants, the controlled buy with CI-3, and the results of
officer surveillance allowed him to establish probable cause and to obtain the search
warrant for Herd’s home. Herd maintains the statements were testimonial because
they were made during police questioning, addressed an element of the charged
offense, and were made under circumstances that would lead an objective witness to
reasonably believe the statements would be available for use at a later trial. The State
maintained below that the statements were non-testimonial because they were
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offered solely to explain probable cause for the warrant. We agree with Herd, and
find Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010) instructive.
In Langham, the Court of Criminal Appeals determined that testimony similar
to the testimony at issue here was “testimonial and put to evidentiary use for the
truth of the matter asserted, . . . .”. Id. at 581–82. There, as here, officers utilized
information from confidential informants to obtain a search warrant to search the
residence of a suspected drug dealer. Id. at 572. Specifically, one of the State’s two
witnesses, Detective Rodney Smith, explained that many of his investigations begin
with tips from confidential informants, including the investigation at issue in that
case. Smith testified that he received information from a confidential informant that
a “particular residence was being used as a place where drugs were trafficked, were
being sold, . . . .” Id. at 571–72. The informant also provided Smith with the name
of one individual who was at the residence and other informants provided Smith with
the names and descriptions of other people, including appellant, “operating a crack
cocaine business” out of the house. Id. at 572. On the basis of that information, Smith
obtained a search warrant for the residence. Id.
The Langham court determined that the statements were testimonial in nature
because “the primary purpose” of Smith’s communication with the informant was
to “pave the way for a potential criminal prosecution.” Langham, 305 S.W.3d at 579.
As the court explained:
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Information that cocaine was being peddled from the residence at 5301
Encino, as the confidential informant asserted, was unquestionably
relevant to the subsequent prosecution of anyone who was involved in
that activity. That before he could initiate such a prosecution Detective
Smith had to first use that information to obtain a search warrant does
not detract from the fact that his “primary,”—that is to say, his “first in
rank or importance”—purpose was to apprehend and eventually
prosecute those in the residence who were involved (and the
confidential informant specifically asserted that the appellant “was also
involved”) in the illegal enterprise. A search warrant is never an end in
itself. While securing a search warrant may have been Detective
Smith's “first-in-time” objective in talking to his confidential informant
about the activities at 5301 Encino, potentially securing a conviction
and punishment for those involved was his “first-in-importance”
objective. We conclude that the out-of-court statements were
testimonial for Confrontation Clause purposes.
Id. at 579–80. The court went on to reject the State’s argument that the statements
were testimonial but otherwise admissible because they simply provided
“background” to explain why Smith investigated that particular residence and were
not offered to establish that cocaine was being sold from the residence and appellant
was involved. Id. at 580.
The Langham court concluded that Smith’s representation of the informant’s
statements “provided far greater detail than was reasonably necessary to explain why
the police decided to investigate the residence” and could not be admitted over a
Confrontation Clause objection under the guise of merely supplying “background”
information to the jury. Id. at 580. The court reasoned that “[t]he jury did not need
to know the kind of details that would have gone into his probable cause affidavit in
order to have context enough to understand and evaluate the balance of the State’s
evidence implicating the appellant in possession of the cocaine found in the house.”
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Id. In addition, the court noted that the prosecutor “made substantive use” of the
statements in her closing argument, “arguing far beyond their relevance as mere
background evidence to rebut the defense claim that the diminutive portions of
cocaine found in the residence justified a reasonable doubt that the appellant
intentionally or knowingly possessed it.” Id. at 581. The court concluded that
admission of the statement violated Langham’s Sixth Amendment right to
confrontation because the statement was testimonial, put to evidentiary use for the
truth of the matter asserted, and the State did not show the informant was unavailable
to testify at trial and that the appellant had a prior opportunity to cross-examine him.
Id. at 581–82.
We draw the same conclusions in this case. Here, Kumler testified that law
enforcement used the statements from the confidential informants to set up the
controlled buy and to obtain the search warrant that led to Herd’s arrest. Kumler’s
representations of the confidential informants’ statement, like Smith’s description in
Langham, was more detailed than reasonably necessary to explain why the police
decided to investigate Herd. Indeed, statements from named informants along with
the information regarding the controlled buy would have sufficed to serve that
purpose. Further, like the prosecutor in Langham, the prosecutor in this case
substantively used the statements of the confidential informant in his closing
argument to bolster the State’s claim that Herd was a drug dealer who was caught
possessing a large amount of methamphetamine with an intent to deliver those drugs.
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Specifically, the prosecutor listed the statements as one of the facts to support a
finding of intent to deliver:
Last, with intent to deliver. . . . This right here is what a drug dealer
keeps with the scales. There’s the marijuana, there are the pills, there’s
the pipe. Here is a large amount of meth in a house. We know that
numerous drug dealers in the community were telling police that this
was their source. We know that they did the confidential buy.
Under this record, we conclude the statements were testimonial and not admissible
as mere background information. Because the State has not shown the confidential
informants were unavailable to testify at trial and Herd had a prior opportunity to
cross-examine them, admission of the statements over Herd’s objections violated his
Sixth Amendment to confrontation.
Because the error in question is constitutional in nature, we may affirm the
judgment of conviction if we determine beyond a reasonable doubt that the error did
not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a); Langham,
305 S.W.3d at 582. In performing this analysis, we consider the entire record as well
as (1) the nature of the error; (2) the extent it was emphasized by the State; (3) the
probable implications of the error; and (4) the weight a juror or fact-finder would
probably place on the error. Snowden v. State, 353 S.W.3d 815, 821–22 (Tex. Crim.
App. 2011). These factors are not exclusive and other considerations may logically
inform our constitutional harm analysis. Id.
Constitutional error does not contribute to the conviction or punishment if the
conviction and punishment would have been the same even if the erroneous evidence
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had not been admitted. Velasquez v. State, No. 05-19-00003-CR, 2020 WL 1042522,
at *2 (Tex. App.—Dallas Mar. 3, 2020, pet. ref’d) (mem. op., not designated for
publication) (first citing Clay v. State, 240 S.W.3d 895, 904–05 (Tex. Crim. App.
2007), and next citing Speers v. State, No. 05–14–00179–CR, 2016 WL 929223, at
*9 (Tex. App.—Dallas Mar. 10, 2016, no pet.) (mem. op., not designated for
publication)). Our review, however, is not merely a sufficiency-of-the-evidence
review. “Instead, the question is . . . whether, in other words, the error adversely
affected the integrity of the process leading to the conviction.” Langham, 305
S.W.3d at 582. We must ask ourselves “whether there is a reasonable possibility that
the Crawford error moved the jury from a state of non-persuasion to one of
persuasion on a particular issue.” Id. We may affirm the conviction if, after
considering these factors, we can declare ourselves satisfied “to a level of confidence
beyond a reasonable doubt, that the error did not contribute to the conviction. . . . ”
Id.
Applying these standards, we are satisfied beyond a reasonable doubt that the
error did not contribute to Herd’s conviction. Here, the State’s evidence included
more than Kumler’s general statements that informants told him that Herd was a
methamphetamine dealer. The jury saw video of the controlled buy, Herd’s arrest,
and the search of his home. Kumler further testified in detail regarding the controlled
buy, serving the warrant on Herd, his arrest, and the search of his house. Kumler also
explained that the actions of Herd during the controlled buy and the amount of
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methamphetamine found during the search indicated that Herd was a dealer of
methamphetamine rather than merely a user. Kumler’s testimony that informants
told him Herd was their supplier and dealer and had drugs in his home was only a
fraction of his testimony. The physical evidence, including the videos of the
controlled buy and the search, and Sigal’s testimony concerning the amount of
methamphetamine seized during the search buttressed Kumler’s testimony
concerning Herd’s intent to deliver those drugs.
Under this record, we cannot conclude that there is a reasonable possibility
that the Crawford error moved the jury from a state of non-persuasion to one of
persuasion on a particular issue. The record convinces us beyond a reasonable doubt
that Herd would have been convicted even if the erroneous evidence had not been
admitted. As such, after carefully reviewing the record and performing the required
harm analysis, we conclude beyond a reasonable doubt that any error by the trial
court in admitting the challenged statement did not contribute to appellant's
conviction or punishment. TEX. R. APP. P. 44.2(a). Accordingly, we overrule Herd’s
sole issue.
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CONCLUSION
We conclude the admission of the confidential informant’s testimonial
statements constituted harmless error and affirm the trial court’s judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
Do Not Publish.
TEX. R. APP. P. 47.2(b).
200202F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CODY HARRIS HERD, Appellant On Appeal from the 59th Judicial
District Court, Grayson County,
No. 05-20-00202-CR V. Texas
Trial Court Cause No. 070022.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice Partida-
Kipness. Justices Myers and Garcia
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 1st day of September 2021.
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