           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS

                                     NO. PD-1780-08

                    PAMELA SHAREKA LANGHAM, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
              FROM THE ELEVENTH COURT OF APPEALS
                         TAYLOR COUNTY

      P RICE, J., delivered the opinion of the Court in which M EYERS, W OMACK,
J OHNSON, H OLCOMB and C OCHRAN, JJ., joined. K ELLER, P.J. filed a dissenting opinion
in which K EASLER and H ERVEY, JJ., joined. Hervey, J., filed a dissenting opinion in
which K ELLER, P.J., and K EASLER, J., joined.

                                      OPINION

       In this prosecution for possession of a controlled substance, a police officer was

permitted to testify before the jury about what a confidential informant had told him with

respect to the scope of the appellant’s involvement in drug activities in the house that she

shared with her boyfriend and others. The Eleventh Court of Appeals held that the testimony

was not objectionable under the Confrontation Clause of the Sixth Amendment to the United
                                                                               Langham — 2

States Constitution because it was not testimonial.1 Alternatively, the court of appeals held

that admission of the testimony, if constitutional error, was harmless in any event under Rule

44.2(a) of the Texas Rules of Appellate Procedure.2 We granted the appellant’s petition for

discretionary review in order to examine these holdings.3

                         FACTS AND PROCEDURAL POSTURE

       The appellant was indicted for the offense of possession of cocaine in an amount less

than a gram, a state-jail felony.4 A jury found her guilty of that offense. The appellant

elected to go to the judge for assessment of punishment, and the trial court sentenced her to

18 months’ confinement in a state-jail facility but suspended the imposition of sentence and

placed her on community supervision for a period of three years.

                                             The Trial

       The guilt phase of trial was relatively brief. The State called only two witnesses in

its case-in-chief. Its first witness was Larry Todsen, a forensic scientist with the Texas

Department of Public Safety’s crime lab in Abilene. Todsen testified that Rodney Smith, a

detective with the Narcotics Unit of the Abilene Police Department, had presented him with



       1

       Langham v. State, 269 S.W.3d 108, 113 (Tex. App.—Eastland 2008).
       2

       Id. at 114 (citing T EX. R. A PP. P. 44.2(a)).
       3

       T EX. R. A PP. P. 66.3(c).
       4

       T EX. H EALTH & S AFETY C ODE § 481.115(b).
                                                                               Langham — 3

two small baggies containing substances that he tested and found to be cocaine. One of the

baggies contained only one milligram of cocaine, or “one-one/thousandth of a gram[.]” The

other baggie contained only seven milligrams, or “[s]even one-thousandths of a gram[.]”

These are, Todsen conceded, “trace” amounts. He also conceded that it is “possible” that a

person could have such a trace amount of a substance “on them and not even be aware of

it[.]” The amount was sufficiently small, he said, that “all or nearly all of the substance . .

. was used in the analysis.”

       The State’s other case-in-chief witness was Detective Smith. After explaining to the

jury that many of his investigations begin with tips from confidential informants, Smith gave

the following testimony that is the subject of this appeal:

       Q      Okay. Are you familiar with an address at 5301 Encino?

       A      Yes, ma’am, I am.

       Q      Is that address in Abilene, Taylor County, Texas?

       A      Yes, it is.

       Q      And at some point, did you receive information from a confidential
              informant regarding that address?

       A      I did.

       Q      And what was the content of that information?

             [DEFENSE COUNSEL]: Objection, hearsay. Denial of confrontation
       and contrary to Crawford versus Washington.

              THE COURT: Appreciate it. The objection is overruled.
                                                                 Langham — 4

Q   (BY [PROSECUTOR]) What was the content of that information?

A   Information was specific and that the – it was a residence that was
    located on Encino, 5301 Encino; that that particular residence was
    being used as a place where drugs were trafficked, were being sold,
    becoming – the specific drug was mentioned as being cocaine, crack
    cocaine, and one individual was given to me by name, and then others
    who were there at the residence while this was taking place were also
    given to me by description.

Q   Okay. Now, you said that the confidential informant gave you one
    person by name?

A   Yes.

Q   Who was that person?

A   His name was Charlie Collins.

Q   Is he a person you are familiar with?

A   Yes, he is.

Q   How do you know him?

A   Through numerous investigations through both personal, and I have
    addressed him personal in the past, and through information, also
    through other informant information.

Q   Do you know him by any other names?

A   Yes, I do.

Q   What do you know him as?

A   His street name is Spyder.

Q   Okay. And the information that you received on the other parties
    involved, could you tell the jury what that information was?
                                                                               Langham — 5

              [DEFENSE COUNSEL]: Your Honor, we would also object to that as
       also being hearsay in violation of confrontation under both Texas and U.S.
       Constitutions as well as contrary to Crawford versus Washington.

              THE COURT: Objection is noted. It’s overruled.

              THE WITNESS: In regards to the other information I received of the
       other people that were present at the residence? And I believe that’s the
       question.

       Q      (BY [PROSECUTOR]) That is the question.

       A      The – several people were living at the residence. There were Charlie
              Collins, that I have already mentioned, is at that time or was at that
              time operating a crack cocaine distribution business out of the house,
              had a girlfriend, a live-in girlfriend or someone that was living there
              at the time with him that was also involved. And then there were some
              other people, two other people that were also residents of the house, or
              that were there in care, custody, control of the house as well.

       Q      Do you recall specifically what the identifying information was on
              Spyder’s girlfriend?

       A      Specifically, I don’t have that in front of me. She was later identified,
              a black female. I don’t have that information on that search warrant
              in front of me.5

On the basis of this information, Smith obtained a search warrant. At approximately 11:23

a.m. on August 3, 2005, he led a police raid on the residence.

       Upon entering the house, the police discovered Collins and the appellant (who is a

black female) together in the main bedroom of the house. They also discovered two other

individuals, Daniel Kilcrease and his wife, Betty Ann Kilcrease (who is white), in another


       5

       All emphasis added unless otherwise indicated.
                                                                                   Langham — 6

bedroom, which they were renting from Collins and the appellant. A search of the house

uncovered “trace” amounts of cocaine in several places. In a pantry in the kitchen, the police

found a small ceramic plate, and “just above” the pantry they discovered a single-edged razor

blade.6 On the plate they found “a good quantity of powder traces[.]” This turned out to be

the “one-one thousandth of a gram” quantity that Todsen later determined to be cocaine.

Smith told the jury that such plates are often used for cutting crack cocaine and will typically

contain cocaine residue.

       Also in the kitchen, the police found an electronic scale “that . . . weigh[s] in small

portions” such as grams, which is “typically,” Smith testified, how cocaine is distributed. On

the surface of the scale “was a powder substance” similar to the substance that the police had

found on the plate. Smith never described the quantity of the powder on the scale more

precisely, however, than “small traces”; he did not submit the powder to DPS for analysis or

precise quantification.

       Under the bed in the main bedroom, the police found a Brinks home security safe.

Both Collins and the appellant admitted owning the safe, and they both told Smith that the

key could be found on a small table in the bedroom. Inside the safe the police discovered

“two large plastic bags that appeared to have some coins of some kind in there, and a

pendant, a silver-type of jewelry-type pendant, currency, U.S. money, money, and then what



       6

       A photograph of the razor blade indicates it was found wedged, apparently in plain sight, in
the molding above the door to the pantry.
                                                                               Langham — 7

was a noticeable amount of powder traces along the edges on the inside, white powder.” The

“noticeable” white powder from the safe was the “seven-one thousandths of a gram” of

cocaine that Todsen would later determine to be cocaine.           The currency ranged in

denomination from hundred-dollar bills to twenties, tens, fives, and ones, totaling $775.

       Against the advice of her counsel, the appellant also testified. She acknowledged that

the safe belonged to her and that she had opened it the night before the police raid, but had

never noticed the “little particles” that the police discovered. She denied ever having seen

the plate in the pantry or the razor blade. She claimed to have bought the scale to use for

cooking and baking, though she admitted there was not much food in the house. She

explained that the money in the safe came from “me working at my job when I was working

at Sonic.” Later she elaborated that some of the money came from “other sources, such as

rent or other people working and living there that would contribute to that $775[.]” She

denied that Collins was a drug dealer and that she “made runs” for him. She conceded that

there were several “pretty nice things” at the residence—a pool table, a sports car, satellite

television—“for four people earning minimum wage.” But she denied having any awareness

of the presence of cocaine on the plate, on the scale, in the safe, or anywhere else in the

house. She also denied having intentionally or knowingly possessed cocaine.

       In rebuttal, the State presented brief and reluctant testimony from Daniel Kilcrease,

one of the other residents at 5301 Encino. Kilcrease was no longer living in Abilene and was
                                                                                       Langham — 8

not required to disclose his current address.7 On direct examination, in response to leading

questions, he testified that there were “drugs being dealt out of the house[,]” that the

appellant had been “in close proximity to those drugs[,] that she had seen them “being cut

and dealt[,]” and that she had made “runs” for Collins. On cross-examination, defense

counsel impeached Kilcrease by securing his admission that he had been convicted of the

felony offense of statutory rape in Oklahoma in 1992 and was charged with a third degree

felony offense of credit card abuse in Texas in “‘94 or ‘96,” which “was reduced to a

misdemeanor.”

        The State waived opening jury argument. Counsel for the appellant therefore argued

first, emphasizing to the jury that, to convict the appellant, it must find she was “aware” of

the presence of the cocaine. He suggested that the “minute amount” of drugs found by the

police was not enough to establish beyond a reasonable doubt that the appellant was even

aware of the cocaine, much less that she intentionally and knowingly possessed it. In

response, the prosecutor began her argument as follows:

               [PROSECUTOR]: May it please the Court, [DEFENSE COUNSEL],
        ladies and gentlemen of the jury. This is a case involving traces of cocaine
        that were tested twice. Not a lot for you to look at here. Not a lot for you to
        see because they were tested and determined to be cocaine. Rodney Smith got
        information from a confidential informant August 1 st or 2 nd that he was in a
        house at 5301 Encino.



        7

        The prosecutor represented to the trial court that Kilcrease “fears for his safety; he fears for
his family’s safety.” Kilcrease himself did not so testify, but he refused, with the trial court’s
consent, to disclose his address and acknowledged that he did not “really want to be here.”
                                                                                Langham — 9

              [DEFENSE COUNSEL]: Your honor, at this point in time, may I
       continue to have my running objection to the hearsay informant information
       that we had the running objection to during the course of the testimony?

               THE COURT: No such objection is required during closing arguments.
       It will be based on the testimony.

              [PROSECUTOR]: Rodney Smith received information from a
       confidential informant that he had been in a residence and he had seen a
       quantity of cocaine. He had seen four people: Spyder, Spyder’s girlfriend,
       and two white people. They execute a search warrant and they find Spyder,
       Spyder’s girlfriend, David Kilcrease, and his wife, Betty. Now, we know that
       [the appellant] is living there because we’ve got evidence of it. . . .

In arguing that the appellant must have been aware of the cocaine in the house, the

prosecutor went on to emphasize the facts that the appellant possessed a gun, that she had

$775 in the safe, that there was no food in the pantry to support her explanation that the scale

was intended for cooking only, that there was a large number of material possessions at the

residence for four people supposedly earning minimum wage, and that Kilcrease had

confirmed that “[t]here were drugs in the house.” The jury found the appellant guilty after

deliberating for less than half an hour.

                                           On Appeal

       The appellant argued on appeal that the admission of Smith’s testimony of what the

confidential informant had told him with respect to the appellant’s involvement in drug

activities at 5301 Encino violated the Confrontation Clause of the Sixth Amendment as

construed by the United States Supreme Court in Crawford v. Washington.8 The court of

       8

        541 U.S. 36 (2004).
                                                                              Langham — 10

appeals rejected this claim, reasoning that “[h]ere, the primary purpose behind the [out-of-

court] statements of the confidential informant was not to provide testimony but to provide

information to Detective Smith in order that he could obtain a search warrant.” 9 In the

alternative, the court of appeals held that any constitutional error in admitting evidence of

the confidential informant’s statements was harmless beyond a reasonable doubt because the

“evidence is legally and factually sufficient, even in the absence of statements of the

confidential informant, to support the finding of guilt.” 10

       In her petition for discretionary review, the appellant argues that the court of appeals

erred in holding that the out-of-court statement of Smith’s confidential informant was not

“testimonial” in contemplation of Crawford and therefore did not violate the Confrontation

Clause. She relies in large measure on the opinion of the Sixth Circuit Court of Appeals in

United States v. Cromer.11 She also argues that the court of appeals erred to conduct an

evidence-is-otherwise-sufficient harmless error analysis. The State responds that the out-of-

court statements were not testimonial because the confidential informant would not have

expected them “to be used in a criminal prosecution. Rather, it was just a tip to begin an




       9

        Langham v. State, supra, at 113.
       10

        Id. at 114.
       11

        389 F.3d 662 (6 th Cir. 2004).
                                                                             Langham — 11

investigation.” 12   Moreover, even if testimonial, the State continues, the confidential

informant’s out-of-court statements do not violate the Confrontation Clause because they

were not offered or admitted for the truth of the matters asserted, but only as “background”

evidence “so the jury could better understand why Smith took the actions he did.” 13 The

State resorts to its own interpretation of Cromer for these propositions. Finally, the State

argues that the court of appeals did not err to conclude that any error was harmless because

the other evidence admitted to establish the appellant intentionally or knowingly possessed

cocaine was not just otherwise sufficient, but “overwhelming.” 14

       We granted the petition for discretionary review in order to determine whether the out-

of-court statements of the confidential informant were “testimonial,” or whether they might

have been admissible, even though “testimonial,” because not offered or admitted for the

truth of the matters asserted. We also granted review to examine the propriety of the court

of appeals’s harm analysis. We conclude that the court of appeals erred to hold that Smith’s

testimony recounting the statements of the out-of-court confidential informant did not violate

the Confrontation Clause and that the court of appeals’s alternative analysis finding any such

constitutional error to be harmless was flawed. We therefore reverse the judgment of the



       12

        State’s Brief, at 7.
       13

        Id.
       14

        Id. at 11.
                                                                                Langham — 12

court of appeals and remand the cause to that court to conduct a proper harm analysis.

                           THE CONFRONTATION CLAUSE

                                           The Law

       The Confrontation Clause of the Sixth Amendment to the United States Constitution,

applicable to the states through the Fourteenth Amendment,15 provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

him[.]”16 In accordance with this constitutional right, out-of-court statements offered against

the accused that are “testimonial” in nature are objectionable unless the prosecution can show

that the out-of-court declarant is presently unavailable to testify in court and the accused had

a prior opportunity to cross-examine him.17 The United States Supreme Court has yet to

define the outer boundaries of what constitutes a “testimonial” out-of-court statement, but

it has identified “three kinds of [out-of-court] statements that could be regarded as

testimonial:” 18

       •       ex parte in-court testimony or its functional equivalent—that is,
               materials such as affidavits, custodial examinations, prior testimony
               that the accused was unable to cross-examine, or similar pretrial
               statements that declarants would reasonably expect to be used


       15

        Pointer v. Texas, 380 U.S. 400, 406 (1965).
       16

        U. S. C ONST. amend. VI.
       17

        Crawford, supra, at 59, 68; Wall v. State, 184 S.W.3d 730, 734-35 (Tex. Crim. App. 2006).
       18

        Wall, supra, at 735.
                                                                               Langham — 13

              prosecutorially;

       •      extrajudicial statements contained in formalized testimonial materials,
              such as affidavits, depositions, prior testimony, or confessions; and

       •      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.19

With respect to this last category of out-of-court statements, and in the particular context of

statements made in response to police inquiries, in Davis v. Washington,20 the Supreme Court

elaborated that such a statement is “testimonial” if the circumstances, viewed objectively,

show that it was not made “to enable police assistance to meet an ongoing emergency” and

“the primary purpose of the interrogation is to establish or prove past events potentially

relevant to later criminal prosecution.” 21

       Whether a particular out-of-court statement is testimonial or not, we have said, is “a

question of law.” 22 Although we defer to the trial court’s resolution of credibility issues and

historical fact, we review de novo the ultimate constitutional question of whether the facts




       19

        Id. at 735-36 (quoting Crawford, supra, at 51-52); Melendez-Diaz v. Massachusetts, 129
S.Ct. 2527, 2531 (2009).
       20

        547 U.S. 813 (2006).
       21

         Id. at 822; Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008); De la Paz v.
State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008).
       22

        De la Paz, supra at 680.
                                                                                     Langham — 14

as determined by the trial court establish that an out-of-court statement is testimonial.23 In

making that judgment, we look to determine whether “the surrounding circumstances

objectively indicate that the primary purpose of the interview or interrogation is to establish

or prove past events potentially relevant to later criminal prosecution.” 24

       Parenthetically, the Supreme Court has observed that an out-of-court statement, even

one that falls within its definition of “testimonial” statements, is not objectionable under the

Confrontation Clause to the extent that it is offered for some evidentiary purpose other than

the truth of the matter asserted.25 When the relevance of an out-of-court statement derives

solely from the fact that it was made, and not from the content of the assertion it contains,

there is no constitutional imperative that the accused be permitted to confront the declarant.

In this context, the one who bears “witness against” the accused is not the out-of-court

declarant but the one who testifies that the statement was made, and it satisfies the

Confrontation Clause that the accused is able to confront and cross-examine him.26



       23

        Wall, supra at 742.
       24

        De la Paz, supra at 680.
       25

        Crawford, supra, at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409 (1985)).
       26

         See Street, supra, at 414 (“The nonhearsay aspect of [the out-of-court declarant’s]
confession—not to prove what happened at the murder scene but to prove what happened when
respondent confessed—raises no Confrontation Clause concerns. The Clause’s fundamental role in
protecting the right of cross-examination . . . was satisfied by [the interrogating officer’s] presence
on the stand.”).
                                                                                  Langham — 15

       The Supreme Court has not applied these confrontation principles specifically in the

context of out-of-court statements made to the police by a confidential informant. But a

number of lower federal courts have. The lead case—the case that both parties rely on in this

appeal—is the Sixth Circuit’s opinion in Cromer. There it was held that an out-of-court

statement by a confidential informant to the police asserting that the accused committed the

charged conduct is testimonial.27 If offered for the truth of the matter asserted, the court held,

it is objectionable unless the confidential informant is unavailable and the accused has had

a prior opportunity to cross-examine him.28 However, the court continued, the same out-of-

court statement may be admissible, though testimonial, if it is not offered for the truth of the

matter asserted, but only to supply “background,” e.g., to provide the investigative context

in order to explain police conduct.29 Other courts have followed Cromer’s lead, while

frequently cautioning prosecutors not to invoke the “background” exception too broadly, lest

it become no more than a pretense for insulating out-of-court assertions from the crucible of

confrontation and cross-examination.30


       27

        Cromer, supra, at 675.
       28

        Id. at 677-78.
       29

        Id. at 676.
       30

          See, e.g., United States v. Maher, 454 F.3d 13, 21-22, 24(1 st Cir. 2006)(out-of-court
statement made by confidential informant to police officer claiming that Maher was involved in drug
activity was testimonial for confrontation purposes, and “[t]he government’s articulated
justification—that any statement by an informant to police which sets context for the police
                                                                                      Langham — 16




investigation is not offered for the truth of the statement and thus not within Crawford—is
impossibly overbroad. * * * The dividing line often will not be clear between what is true
background to explain police conduct (and thus an exception to the hearsay rule and thus an
exception to Crawford) and what is an attempt to evade Crawford and the normal restrictions on
hearsay. But we are on firm ground in warning prosecutors of the risks they face in backdoor
attempts to get statements by non-testifying confidential informants before a jury”); United States
v. Hearn, 500 F.3d 479, 483-84 (6 th Cir. 2007) (out-of-court statements to police from confidential
informants that inculpated Hearn were testimonial, and the repetition and “excessive detail” of
statements, along with prosecutor’s emphasis of same during summation, belied government’s claim
that they were offered for limited purpose of providing context); United States v. Powers, 500 F.3d
500, 509-10 (6 th Cir. 2007) (confidential informant’s out-of-court statement that Powers was “a well-
known cocaine supplier” violated Confrontation Clause because testimonial and not admissible as
“background” evidence because the details about his “alleged prior criminal behavior were not
necessary to set the context of the sting operation for the jury”); United States v. Cruz-Diaz, 550
F.3d 169, 177 (1 st Cir. 2008) (“when an out-of-court statement is purportedly offered into evidence
as non-hearsay—for example, to provide context for police action or inaction—we are concerned
about whether the stated purpose for introducing the evidence masks an attempt to evade Crawford
and the normal restrictions on hearsay.”); State v. Johnson, 771 N.W.2d 360, 369-70 (S.D. 2009)
(out-of-court statement of confidential informant was testimonial because “an objective witness
acting as a government informant would believe that his statement to law enforcement, regarding the
ability to purchase drugs from a certain person, would be available for use at a later trial[,]” and the
State “crossed the line” from background evidence to substantive evidence of guilt when it referred
to the statement substantively during final argument); State v. Bell, No. M2008-01187-CCA-R3-CD,
2009 WL 3925370 (Tenn. Crim. App., delivered November 19, 2009), at *5 (“Generally, courts have
held that statements made by informants directly to police violate the Confrontation Clause. Most
informant statements to police that are sought to be introduced at trial divulge information about the
defendant to police and are offered to prove the truth of that information. The statements’ admission,
therefore, violates the defendant’s right to confront his accusers because it is both testimonial and
hearsay. In limited instances the State may introduce such statements in order to explain why police
investigated a certain target. These instances are few and far between, however, and the Clause
allows for the admission of only so much of the informant’s statement that is necessary to
demonstrate what caused the police to investigate the target.”) (citations omitted).

        The Confrontation Clause aside, many courts (including this Court) have similarly warned
that the rule against hearsay may not be circumvented by the expedient of a “background” or
“investigative context” rationale. E.g., United States v. Hernandez, 750 F.2d 1256, 1257 (5 th Cir.
1985) (“The government’s protestation that the evidence [of an out-of-court “referral by the U.S.
Customs as Hernandez being a drug smuggler”] was not elicited to prove Hernandez was a drug
smuggler, but merely to explain the motivation behind DEA’s investigation is unconvincing from
both a common sense perspective, and from the government’s subsequent use of that testimony. The
government, as a last resort, says the testimony was merely background, but it is not permissible to
lay such an invidious and prejudicial background.”); State v. Hearold, 603 So.2d 731, 737 (La.
                                                                                      Langham — 17

                                              Analysis

        Applying these principles to the confidential informant’s out-of-court statements in

this case, the court of appeals concluded that they were not testimonial for Confrontation

Clause purposes. “Here,” the court of appeals reasoned, “the primary purpose behind the

statements of the confidential informant was not to provide testimony but to provide

information to Detective Smith in order that he could obtain a search warrant.” 31 In our view,

however, this holding reflects a flawed understanding of what the Supreme Court meant by

the “primary” purpose of an interrogation.

        The adjective “primary” may be used to mean “first in order of time or development:




1992) (“Generally, an explanation of an officer’s action should never be an acceptable basis upon
which to admit an out-of-court declaration when the so-called ‘explanation’ involves a direct
assertion of criminal activity against the accused. * * * The probative value of the mere fact that
an out-of-court declaration was made is generally outweighed by the likelihood that the jury will
consider the statement for the truth of the matter asserted.”); United States v. Silva, 380 F.3d 1018,
1020 (7 th Cir. 2004) (“Allowing [law enforcement] agents to narrate the course of their investigations,
and thus spread before juries damning information that is not subject to cross-examination, would
go far in abrogating the defendant’s rights under the sixth amendment and the hearsay rule.”);
Schaffer v. State, 777 S.W.2d 111, 114-15 (Tex. Crim. App. 1989) (“The police officer, however,
should not be permitted to relate historical aspects of the case, replete with hearsay statements in the
form of complaints and reports on grounds that she was entitled to tell the jury the information upon
which she acted.”). See also 2 Kenneth S. Broun, et al., M C C ORMICK ON E VIDENCE § 249 (6 th ed.
2006), at 136-37 (investigating officers should not, under the guise of “context,” “be allowed to
relate historical aspects of the case, such as complaints and reports of others containing inadmissible
hearsay. Such statements are sometimes erroneously admitted under the argument that the officers
are entitled to give information upon which they acted. The need for this evidence is slight, and the
likelihood of misuse great. Instead, a statement that an officer acted ‘upon information received,’
or words to that effect, should be sufficient”).
        31

        Langham, supra at 113.
                                                                               Langham — 18

INITIAL[.]” 32 By this understanding of the word, it was certainly accurate for the court of

appeals to say that Detective Smith’s “primary” purpose in seeking information from his

confidential informant was to secure a search warrant for the premises at 5301 Encino. That

was, indeed, his immediate objective. But we doubt that the Supreme Court in Davis meant

to convey that, in order for a statement that he obtains to be “testimonial,” a police officer’s

“first-in-time” purpose must be “to establish or prove past events potentially relevant to later

criminal prosecution.” 33 The word “primary” as an adjective may also mean “first in rank

or importance: CHIEF: PRINCIPAL[.]” 34 It is far more likely that, by “primary purpose,”

the Supreme Court meant to convey the purpose that is “first” among all potentially

competing purposes “in rank or importance.”

       Our conclusion that “primary” means “first in importance” rather than “first in time”

is bolstered by the Supreme Court’s application of the standard it announced in Davis itself,35

as well as our own application of that standard in Vinson,36 both cases involving police

response to a domestic disturbance. These cases recognize that, when the police are called

       32

        W EBSTER’S T HIRD INTERNATIONAL D ICTIONARY OF THE E NGLISH LANGUAGE, U NABRIDGED
(2002), at 1800.
       33

        Davis, supra at 822; Vinson, supra at 338; De la Paz, supra at 680.
       34

        W EBSTER’S, supra.
       35

        547 U.S. at 826-32.
       36

        252 S.W.3d at 338-42.
                                                                                Langham — 19

upon to respond to emergency situations, they often find it necessary to ask questions while

discharging their duties that are likely to elicit responses about criminal behavior. But for

as long as the emergency situation is still ongoing, the “primary purpose” of the

communication is not to develop a factual predicate for later litigation; rather, it is to decide

how to respond appropriately to the situation. The exchange cannot be said to have been

undertaken for the “primary” purpose of memorializing facts for future prosecution. Once

the emergency is resolved, however, any continuing or subsequent interrogation may well

provoke a testimonial response for Confrontation Clause purposes because, at that juncture,

“[o]bjectively viewed, the primary, if not the sole, purpose of the interrogation [has become]

to investigate a possible crime[.]” 37 This latter observation clearly illustrates that, by

“primary” purpose, the Supreme Court in Davis meant the “first in importance” among

multiple, potentially competing purposes.

       Understood in this way, it is manifest that the “primary purpose” of Detective Smith’s

communication with his confidential informant was to pave the way for a potential criminal

prosecution. 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

       37

        Davis, supra at 830.
                                                                                     Langham — 20

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.38 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.

       But were the statements admissible, though testimonial, because they were not offered

to establish the truth of the matter asserted—that cocaine was being sold from 5301 Encino,

and that the appellant “was also involved”—but only to provide “background” to explain

why Detective Smith came to investigate that particular residence, as the State now contends?

We do not believe so. Typically, so-called “background” evidence is admissible, not because

it has particularly compelling probative value with respect to the elements of the alleged

offense, but simply because it provides the jury with perspective, so that the jury is equipped

to evaluate, in proper context, other evidence that more directly relates to elemental facts.

But it is not necessary to go into elaborate detail in setting the evidentiary scene, and there



       38

        While the confidential informant’s out-of-court statement did not identify the appellant by
name as the “girlfriend” who “was also involved” in drug dealing from the residence, she was the
only “black female” in the house at the time of the raid, and it would have been clear to the jury from
the balance of the evidence that she was the girlfriend the confidential informant was talking about.
                                                                               Langham — 21

is a danger inherent in doing so. Because the relevance of “background” evidence is

marginal to begin with, the introduction of too much incriminating detail may, whenever the

evidence has some objectionable quality not related to its marginal relevance, prove far more

prejudicial than probative.       Thus, even when a confidential informant’s out-of-court

statement showing “background” is not offered for the truth of the matter asserted, its

probative value to place other, more direct evidence in an understandable context will usually

be slight compared to its tendency to cause the jury to consider it for that improper, truth-of-

the-matter-asserted purpose. And the greater and more damning the detail contained in that

out-of-court statement, the greater the likelihood that the jury will gravitate toward the

improper use. This is the reason that courts have practiced caution in declaring testimonial

out-of-court statements of confidential informants to be admissible as “background”

evidence: too much damning information will erode judicial confidence that the accused has

truly enjoyed his Sixth Amendment right to confront all of “the witnesses against him[.]” 39

       Here, Detective Smith’s representation of his confidential informant’s statements with

respect to the criminal activities at 5301 Encino, and the appellant’s “involvement” in them,

provided far greater detail than was reasonably necessary to explain why the police decided

to investigate the residence. The bare fact that Smith had obtained unspecified information

justifying a search warrant would readily have sufficed to serve this purpose. The jury did

not need to know the kind of details that would have gone into his probable cause affidavit

       39

        U.S. C ONST. amend. VI.
                                                                                      Langham — 22

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. Under

these circumstances, and when the unnecessary details derive from an out-of-court statement

that is testimonial, the State cannot justify admitting them over a Confrontation Clause

objection with an argument that they are offered merely to supply “background.”

        In any event, the State’s actual use of the out-of-court statements at the appellant’s

trial was inconsistent with its appellate claim that they were not offered for the truth of the

matter asserted. The State made no such representation when it offered the statements,40


        40

         In her dissenting opinion, Judge Hervey argues that the “appellant’s Confrontation Clause
objection was not a proper objection.” Dissenting opinion, at 2. Judge Hervey maintains that,
because the State might have justified the proffer of the confidential informant’s out-of-court
statement as “background evidence,” the appellant should not have objected on Confrontation Clause
grounds. Instead, the appellant should simply have acceded to admission of the out-of-court
statement for the limited purpose for which it might have been offered, and then requested a limiting
instruction to inform the jury that it should only consider the statement for its proffered purpose as
“background” and not for the truth of the matters asserted. Failure to do this, she believes, was fatal
to the appellant’s Confrontation Clause claim. Our caselaw does not bear this out.

        In Vinson, supra, at 340, we made clear that “once [a Confrontation Clause] objection is
made, the proponent must demonstrate that the proffered evidence overcomes the stated objection.”
“In other words, once [the] appellant objected, the State was obligated to establish either (1) that the
[out-of-court declaration] did not contain testimonial hearsay statements or (2) that the [out-of-court
declaration] did contain testimonial hearsay statements but that such statements were nevertheless
admissible under Crawford.” De la Paz, supra, at 680-81. Indeed, in De la Paz, we held that certain
out-of-court declarations had been erroneously admitted simply because the State failed to sustain
its burden, as proponent of the declarations, to demonstrate that they were admissible under
Crawford. Id. at 681. Here, when the appellant made her Confrontation Clause objections, the
burden shifted to the State to demonstrate admissibility. The trial court did not wait for an
explanation from the State, however, before overruling the objection, thus admitting the confidential
informant’s out-of-court assertions—apparently—for all purposes. Under these circumstances, it was
not incumbent on the appellant to request a limiting instruction as a predicate to claiming error on
appeal. She had obtained her adverse ruling. If anything, the State had an obligation to explain (if
only to avoid the risk of reversal on appeal) that its proffer was a limited one—to establish
                                                                                       Langham — 23

even though it would have been responsive to the appellant’s hearsay and Confrontation

Clause objections. Moreover, the prosecutor clearly made substantive use of the statements

in her final summation, 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. The

prosecutor clearly “crossed the line” from any permissible “background” relevance when she

argued the statement’s substantive, truth-of-the-matter-asserted value.41                  Because the

statement was testimonial and put to evidentiary use for the truth of the matter asserted, and

because the State has not shown that the out-of-court declarant was unavailable to testify at

trial and that the appellant had a prior opportunity to cross-examine him, admission of the

statement over the appellant’s timely and specific objection violated her Sixth Amendment


“background”—and that it was not offering the out-of-court declarations for the truth of the matters
asserted therein. Had the State offered such a justification for admission on the record, and had the
trial court accepted it, then Judge Hervey might have a plausible argument that a limiting instruction
was required of the appellant before she should be allowed to prevail on her Confrontation Clause
claim. But it is clear that the State was in fact offering the out-of-court declarations of its informant,
and did in fact use those statements, substantively, for the truth of the matters asserted, and that the
trial court admitted them for that purpose. For the appellant to have requested a limiting instruction
in the premises would have been pointless. We cannot say that she has somehow procedurally
defaulted her Confrontation Clause claim by failing to do so.

         Judge Hervey responds that “Vinson should not be read as abrogating the well-settled rule
that a trial court’s ruling admitting evidence will be upheld on appeal if it is correct under any legal
theory applicable to the case.” Dissenting opinion, at 3, n.2. We do not read Vinson to abrogate this
rule. Until the State has satisfied its burden, as proponent of the out-of-court statement, to provide
an explanation for why the statement is admissible despite the appellant’s Confrontation Clause
objection, the possibility that it may be admitted as “background information” is simply not a “legal
theory” for admissibility of the out-of-court statement that is yet “applicable to the case.”
        41

        State v. Johnson, supra, at 370.
                                                                                    Langham — 24

right to confrontation. The court of appeals erred to conclude otherwise.

                              HARMLESS ERROR ANALYSIS

       The court of appeals correctly identified any Confrontation Clause error to be of

constitutional dimension, and therefore (because not “structural”), subject to a constitutional

harm analysis.42 In Scott v. State,43 this Court comprehensively described how appellate

courts should undertake such a harm analysis:

                In determining specifically whether constitutional error under Crawford
       may be declared harmless beyond a reasonable doubt . . . the following factors
       are relevant: 1) how important was the out-of-court statement 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. As the court of appeals rightly noted, the emphasis of a
       harm analysis pursuant to Rule 44.2(a) should not be on “the propriety of the
       outcome of the trial.” That is to say, the question for the reviewing court is not
       whether the jury verdict was supported by the evidence. Instead, the question
       is the likelihood that the constitutional error was actually a contributing factor
       in the jury’s deliberations in arriving at that verdict–whether, in other words,
       the error adversely affected the integrity of the process leading to the
       conviction. In reaching that decision, the reviewing court may also consider,
       in addition to the factors listed above, inter alia, the source and nature of the
       error, to what extent, if any, it was emphasized by the State, and how weighty
       the jury may have found the erroneously admitted evidence to be compared to
       the balance of the evidence with respect to the element or defensive issue to
       which it is relevant. With these considerations in mind, the reviewing court
       must ask itself whether there is a reasonable possibility that the Crawford error

       42

        Langham v. State, supra, at 114, citing T EX. R. A PP. P. 44.2(a) (“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.”).
       43

        227 S.W.3d 670 (Tex. Crim. App. 2007).
                                                                               Langham — 25

       moved the jury from a state of non-persuasion to one of persuasion on a
       particular issue. Ultimately, after considering these various factors, the
       reviewing court must be able to declare itself satisfied, to a level of confidence
       beyond a reasonable doubt, that the error did not contribute to the conviction
       before it can affirm it.44

Here, the court of appeals declared any Crawford error to be harmless simply because it

found that the evidence was “legally and factually sufficient, even in the absence of

statements of the confidential informant, to support the finding of guilt.” 45 But as we

expressly observed in Scott, and now reiterate, in the context of an examination for harm, vel

non, when evidence is erroneously admitted in violation of Crawford, the question for the

reviewing court is not whether the jury verdict was supported by the evidence, even

discounting the erroneously admitted evidence. The court of appeals erred to conduct such

a truncated harm analysis. Rather than perform the proper harm analysis ourselves, however,

we will remand the cause to the lower court to conduct that analysis in the first instance.

                                      CONCLUSION

       The judgment of the court of appeals is reversed, and the cause is remanded to that

court for a proper harm analysis.

Delivered:    March 3, 2010
Publish




       44

       Id. at 690-91 (footnotes and internal quotation marks omitted).
       45

       Langham, supra, at 114.
