Opinion
No. 10-05-00298-CR
Opinion delivered and filed June 27, 2007. DO NOT PUBLISH.
Appeal from the 361st District Court Brazos County, Texas Trial Court No. 03-04519-CRF-361.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Lockett appeals his conviction for first-degree felony possession of cocaine with intent to deliver. See TEX. HEALTH SAFETY CODE ANN. § 481.112(a), (d) (Vernon 2003); see also id. § 481.102(3)(D) (Vernon Supp. 2006). We affirm. In Lockett's two issues, he complains concerning the trial court's evidentiary rulings. In Lockett's first issue, he contends that the trial court erred in overruling Lockett's Confrontation-Clause objection. "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. CONST. amend. VI; see Crawford v. Washington, 541 U.S. 36 (2004). Lockett complains of a law-enforcement officer's "descri[ption] to the jury how he gained out of court information from a confidential informant and these statements were the basis for him obtaining a search warrant for [Lockett]'s residence. (RR Vol 3 Pg 20-23)." (Br. at 5 (emphasis in orig.).) We understand the following to be the substance of the testimony of the officer to which Lockett refers, on direct examination by the State:
Q. . . . . I want to take you to October 8th, 2003. Do you remember that day?
A. Yes, ma'am.
Q. What happened on that day?
A. We executed a narcotic's search warrant at the address of 1216 April Bloom, Apartment B, in College Station, Brazos County, Texas.
Q. And you obtained that search warrant. Was that based on information you had received from a confidential informant?
A. Yes, ma'am.
Q. Who was the subject of that warrant?
A. LaQuita Nixon.
Q. Was she the owner of that house?
A. Yes, ma'am.
Q. Okay. Was the Defendant subject at all?
A. Of that search warrant in particular, he was not named in that.
Q. Okay. Did you have a description of the Defendant-such that you knew that he might be at that residence as well?
A. Yes, ma'am.
Q. Was there a nickname known for the Defendant that was not included in the search warrant to keep —
. . . .
Q. . . . Again, was there a nickname given to you by the confidential informant that you did not include in order to keep his identity secret?
. . . .
Q. . . . [W]as there a — a nickname that was known or given to you by the confidential informant that you did not include in the search warrant?
A. Yes, ma'am.
Q. And that was, again, to protect the C.I.?
A. That's correct.
. . . .
Q. Can you tell the jury what a hard entry is?
A. There is different levels of — of how we execute a search warrant. We can go and actually knock on the door and ask for consent to enter, even though we do have a search warrant. We can wait for people to leave the house, make contact with them down the road or in the yard.When we commonly refer to hard entry, we actually force our way into a house by using some type of tool, battering ram, something of that nature, to enter the house.
Q. Is that also called a no-knock?
A. Yes, ma'am, it can be considered a no-knock entry also.
Q. Did you include information in your warrant as to your belief that a no-knock entry was necessary in this case?
A. Yes, ma'am.
Q. And what information did you include within the warrant regarding the no-knock entry?
A. We received information that he possibly had a weapon inside the residence, that the person in the search warrant had shown signs of being, maybe, combative towards law enforcement. And the actual Ms. Nixon, who was named in the search warrant, had had prior narcotics convictions or charges.[sic] (3 R.R. at 20-22) (ellipses and bracketed alterations added). We assume without deciding that the trial court erred in overruling Lockett's objection. Any error, however, was harmless. Crawford error is constitutional error. See Davis v. State, 203 S.W.3d 845, 849-50 (Tex.Crim.App. 2006), cert. denied, 75 U.S.L.W. 3554 (U.S. Apr. 16, 2007) (No. 06-9244). "If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment." TEX. R. APP. P. 44.2(a). Crawford error is subject to harmless-error review. Davis at 849-50. The reviewing court must ask: "Would the admission of th[e] evidence, in the context of the trial as a whole, likely have made any significant impact upon the minds of an average jury?" Id. at 850 (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). To decide that question, we consider the following nonexclusive list of factors:
(1) The importance of the witness's testimony in the prosecution's case;
(2) Whether the testimony was cumulative;
(3) The presence or absence of evidence corroborating or contradicting the witness's testimony on material points;
(4) The extent of cross-examination otherwise permitted; and
(5) The overall strength of the prosecution's case.Davis at 850 (citing Van Arsdall at 684). The witness testified, at most, that the confidential informant stated that Lockett might have a weapon. The importance of the confidential informant's statement in the State's case was negligible. The State points to corroboration of the hearsay statement by evidence that a gun was found in Lockett's residence. Lockett does not contend that he was otherwise restricted in his cross-examination. Lockett concedes that he "was obviously in possession of a controlled substance," so that "the only defense he could muster at trial was an attack on the reliability and credibility of the confidential informant." (Br. at 13.) In light of those factors, any error in the admission of the confidential informant's statements was harmless beyond a reasonable doubt. We overrule Lockett's first issue. In Lockett's second issue, he contends that the trial court committed constitutional error in denying Lockett's examination of a witness whom Lockett sought to call and whom Lockett contends was the confidential informant. We again assume without deciding that the trial court erred. "[W]hen the trial court restricts cross-examination or excludes evidence," then "the reviewing court first assumes that 'the damaging potential of the cross-examination' had occurred. . . ." Davis, 203 S.W.3d at 850-51, 850 (quoting Van Arsdall, 475 U.S. at 684). Assuming that the trial court had permitted examination of the witness, and that the damaging potential of that examination to impeach the reliability and credibility of the confidential informant had been realized, in light of the above factors, any error was harmless beyond a reasonable doubt. We overrule Lockett's second issue.
We note, however, that Lockett does not point to evidence of statements by the informant that clearly concern Lockett.