                                   REVISED
                      United States Court of Appeals,

                                 Fifth Circuit.

                         Nos. 96-50785, 97-50159.

               Pedro L. GOCHICOA, Petitioner-Appellee,

                                       v.

 Gary L. JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellant.

                                 Aug. 4, 1997.

Appeals from the United States District Court for the Western
District of Texas.

Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges.

     EMILIO M. GARZA, Circuit Judge:

     Respondent Gary L. Johnson, on behalf of the State of Texas

(hereinafter the "State"), appeals the district court's grant of a

writ of habeas corpus under 28 U.S.C. § 2254 to Petitioner Pedro

Gochicoa.    We reverse.

                                       I

     While responding to a call complaining of a "suspicious
person,"    Officer     Victor    Prieto    of   the   Pecos,   Texas   police

department encountered Jorge Gochicoa, Pedro's brother, sitting in

a parked car near an apartment building.           As Officer Prieto spoke

to Jorge, Pedro (also known as "Peter") approached the car from an

alley.     Pedro greeted Officer Prieto "nervously" and said to his

brother "let's go."         Officer Prieto questioned the Gochicoas

briefly and then allowed them to leave.

     Immediately after the brothers left, Reeves County Sheriff's

                                       1
Deputy Andy Gomez arrived at the scene.       Deputy Gomez told Officer

Prieto that the sheriff's department had also received a call, this

time from a confidential informant, reporting that an individual

named Manuel Salcido was in the area selling heroin to Pedro

Gochicoa. Deputy Gomez and Officer Prieto then proceeded to search

the alley from which Pedro emerged.        As they searched, a young man

named Michael Carrasco approached the officers and told them that

he   had   been   watching   the   alley    from   an    apartment    window

approximately 100 to 150 feet away.         Carrasco reported that when

Pedro rounded the corner of the alley and saw Officer Prieto, he

quickly reached into his pocket and made a motion as if he were

throwing something to the ground.           Carrasco, however, did not

actually see anything leave Gochicoa's hand.              Carrasco led the

officers in the direction of Gochicoa's gesture where they found a

small red balloon containing nineteen dosage units of heroin.            The

officers found no other objects or refuse on the ground in the

area.

     Police arrested Pedro Gochicoa two days later and charged him

with felony possession of heroin.       Gochicoa pleaded not guilty to

the indictment.     At his trial, the State did not identify the

confidential informant or call the informant to testify.             However,

the State mentioned the call from the confidential informant

several times during its case in chief.                 During his opening

statement, the prosecutor made the following remark:

     Deputy Gomez ... pulls up and tells       [Officer Prieto] that he
     has gotten a tip from a confidential      informant concerning the
     defendant, and they start searching       the area where Pedro was
     coming from for contraband that has       been left behind.

                                    2
During the prosecutor's direct examination of Officer Prieto, the

following exchange took place:

Q: Did you say anything to him [Pedro Gochicoa]?

A: No, sir.

Q: Did you have any reason at this point in time to stop him, to
     investigate any crime that may have been committed, or do
     anything else concerning Pedro?

A: No, sir, I had no reason.

Q: Did you in fact allow them to drive away?

A: Yes, sir.

Q: At about that time as they were driving away, did a peace
     officer approach your position?

A: Yes, sir.

Q: What officer was that?

A: It was Reeves County Sheriff's Deputy Andy Gomez.

Q: Okay. And what was Deputy Gomez's purpose in being there—do you
     have any idea?

A: He advised me that he had some information that Peter was
     selling ...

          MR. PAINTER [Gochicoa's attorney]: Your Honor, I object.
          That's hearsay.

          MR. ZAVODA [prosecutor]:      I'll withdraw the question,
          Your Honor.

          THE COURT:   Sustained.

Gochicoa's counsel did not ask that the answer be stricken or that

the jury be instructed to disregard the testimony.        Moreover,

despite the court's ruling, the prosecutor elicited testimony from

Officer Prieto that indirectly apprised the jury of the substance

of the confidential informant's out-of-court statement:

Q: Did you and Deputy Gomez have a conversation?

                                    3
A: Yes, sir.

Q: Without telling me what he said, based upon that conversation
     did you and Deputy Gomez undertake a search?

A: Yes, sir, we did.

Q: And where were you looking at?         What area were you searching?

A: We was looking on the alley mostly from where I had seen Peter
     coming from.

Q: All right.   And what were you looking for—yourself, personally?

A: Well, we were looking for any kind of drugs.

Gochicoa's counsel failed to object to this continuing line of

questioning.

     On redirect examination of Officer Prieto, the prosecutor

again introduced the confidential informant's telephone message

into evidence without objection:

Q: Now you mentioned the name of Manuel Salcido when you were
     answering questions of Mr. Painter.

A: Yes, sir.

     ...

Q: You called him the other suspect. Was he another person that
     was supposed to be possessing heroin or selling heroin?

     ...

A: Yes, sir.

     ...

Q: And [Manuel Salcido's residence is] the general location that
     Pedro was coming from, is that correct?

A: That is correct.

     When   Deputy   Gomez   took   the   stand,   the   prosecutor   again

acknowledged the court's earlier ruling and admonished Gomez not to

reveal the substance of the statement.

                                     4
Q: You cannot tell me what the confidential informant told you, but
     based upon that information did you proceed to the 1000 block
     of East 10th in Pecos, Reeves County, Texas?

A: Yes, I did.

      ...

Q:   Again, based upon the information you received from the
      confidential informant, did you and Victor Prieto—Officer
      Prieto—conduct a search of the area where Officer Prieto was
      at?

A: Yes, we did.

Q: What were you looking for?

A: I was looking for heroin is what I was looking for.

Again, Gochicoa's counsel did not object to this testimony.              At

closing, the prosecutor cited the substance of the confidential

informant's tip as direct evidence against Gochicoa.

      What do we know by direct evidence? ... We know that Pedro
      was out at the project on August 15, 1991, at about five or
      5:15 P.M. We know his brother Jorge was waiting for him to
      come back from where he was at. We know that when he saw
      Victor Prieto—Officer Prieto—that Pedro got nervous. We heard
      that from two different witnesses, Officer Prieto and Michael
      Carrasco. We know that Deputy Gomez had information from a
      confidential informant that Manuel Salcido was in this area in
      his home selling heroin and that Pedro was buying it at this
      particular time....

Again Gochicoa's counsel failed to object to this argument.

      After deliberating for approximately two hours, the jury

requested an additional definition of "possession" from the judge,

but the judge informed them that the definition of possession in

the jury instructions was the only one that he could give them.

After   further   deliberations,   the   jury   announced   that   it   was




                                   5
deadlocked.       The judge then read the jury a modified Allen charge.1

After about an hour, the jury returned a verdict of guilty.                Based

on   Gochicoa's       prior   criminal       history,   the   jury   assessed   a

punishment of sixty years imprisonment.

      Gochicoa's attorney filed an Anders brief,2 and withdrew from

the case.        Gochicoa then filed an appeal pro se, and the Texas

court of appeals affirmed his conviction in an unpublished opinion.

Gochicoa filed a petition for writ of habeas corpus with the Texas

Court of Criminal Appeals, which denied relief without written

order.        Gochicoa then filed a habeas petition in federal district

court.

      In his petition, Gochicoa asserted violation of his Sixth

Amendment right of confrontation based on the admission of the

hearsay statements of the confidential informant.                     The State

responded that the references to the confidential informant's

statement were not hearsay at all under Texas law because they were

elicited to explain the actions of the police officers, not for the

truth of the matter asserted. The magistrate judge agreed with the

State and recommended that the writ of habeas corpus be denied.

      1
      Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154,
157, 41 L.Ed. 528 (1896). An Allen charge is a supplemental
instruction urging jurors to forego their differences and reach a
unanimous verdict. United States v. Winters, 105 F.3d 200, 202 n.
1 (5th Cir.1997).
          2
       Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967), appointed counsel on appeal may move
to withdraw from a case after fully examining the facts and the law
pertaining to the case, concluding that the appeal presents no
legally non-frivolous questions, and filing a brief with the court
explaining its conclusion. United States v. Henderson, 72 F.3d
463, 464 n. 5 (5th Cir.1995).

                                         6
After reviewing Gochicoa's objections to the magistrate judge's

findings,    the   district   court   appointed     counsel   to   represent

Gochicoa and held an evidentiary hearing on his claims.                  The

district court rejected the magistrate judge's recommendation,

finding that the confidential informant's statements were offered

for the truth of the matter asserted and constituted hearsay under

Texas law.     The district court further found that admission of

these hearsay statements violated Gochicoa's rights under the

Confrontation Clause of the Sixth Amendment and that the error had

a substantial and injurious effect on the jury's verdict under

Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353

(1993) (setting forth "substantial and injurious effect" test for

harmless error on habeas review).          The court granted the writ,3 and

the State timely appealed.       Gochicoa filed a motion for release

pending appeal, which the district court granted;          we subsequently

stayed the district court's order granting release.

                                      II

                                      A

         We review the district court's findings of fact for clear

error and review its conclusions of law de novo, applying the same

standard of review to the state court's decision as the district

court.     Spence v. Johnson, 80 F.3d 989, 993 (5th Cir.), cert.

denied, --- U.S. ----, 117 S.Ct. 519, 136 L.Ed.2d 407 (1996).

    3
     Because the court granted the writ based on violations of the
Confrontation Clause, it declined reach Gochicoa's claims of
ineffective assistance of counsel, violation of due process, and
failure of the State to disclose the identity of the confidential
informant.

                                      7
While Gochicoa's petition was pending before the district court,

the President signed into law the Antiterrorism and Effective Death

Penalty Act of 1996 ("AEDPA" or "Act"), Pub.L. No. 104-132, 110

Stat. 1214 (1996).   Section 104(3) of the AEDPA amends 28 U.S.C. §

2254(d) to afford greater deference to state court judgments on

federal collateral review.    The Supreme Court recently held in

Lindh v. Murphy, --- U.S. ----, ----, --- S.Ct. ----, ----, ---

L.Ed.2d ----, 1997 WL 338568 at *8 (June 23, 1997), that the new

provisions of chapter 153 of Title 28, including amended section

2254(d), do not apply to cases pending on the effective date of the

Act. This holding overrules, in part, our decision in Drinkard v.

Johnson, 97 F.3d 751, 764-66 (5th Cir.1996), cert. denied, --- U.S.

----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997).4

    4
      Section 107 of the AEDPA creates an entirely new chapter 154
to Title 28 providing for expedited procedures for habeas petitions
filed in capital cases. The new expedited procedures are available
only where the state satisfies certain "opt-in" requirements,
including    establishing   a   mechanism   for    appointment   of
post-conviction counsel for indigent prisoners and standards of
competency for such counsel. 28 U.S.C. § 2261(b); see Mata v.
Johnson, 99 F.3d 1261, 1266 (5th Cir.1996), vacated in part on
other grounds, 105 F.3d 209 (5th Cir.1997).

          Section 104 of the AEDPA (amending chapter 153 of Title
     28) is silent as to its applicability to pending cases;
     section 107(c), however, expressly provides that the
     provisions of new chapter 154 shall apply to cases pending on
     the date of enactment of the Act. The Supreme Court in Lindh
     held that section 107(c)'s express provision creates a
     negative implication that Congress did not intend that the
     amendments to chapter 153 apply to pending cases. Thus, the
     new standards of review in section 2254 do not generally apply
     to habeas cases pending on the date of enactment of the AEDPA.
     They do, however, apply to capital cases under chapter 154;
     28 U.S.C. § 2264(b) expressly provides that chapter 154
     determinations are "subject to sections (a), (d), and (e) of
     section 2254." Lindh, 1997 WL 338568 at *6, --- U.S. at ----,
     --- S.Ct. at ----.

                                 8
      Since Gochicoa filed his habeas petition in district court

prior to April 24, 1996, the date of the AEDPA's enactment, we must

apply the pre-AEDPA standards of review to the state court's

determination.    Lindh, 1997 WL 338568 at *8, --- U.S. at ----, ---

S.Ct. at ----. Whether admission of hearsay evidence violated a

defendant's Sixth Amendment right of confrontation is a mixed

question of law and fact that we review de novo under former 28

U.S.C. § 2254(d).    See Perillo v. Johnson, 79 F.3d 441, 445 (5th

Cir.1996) (noting that federal habeas court reviews state court

determinations of mixed questions de novo );             see also Swan v.

Peterson, 6 F.3d 1373, 1379 (9th Cir.1993) (holding that whether

Confrontation Clause is violated is mixed question of law and fact

subject to de novo review).

                                    B

      We pause to note that after his initial objection, Gochicoa

failed to object to the admission of the confidential informant's

statements. Gochicoa therefore waived any hearsay or Confrontation

Clause objection under Texas's contemporaneous objection rule.

Tex.R.App.   P.   52(a)   ("In   order   to   preserve   a   complaint   for

appellate review, a party must have presented to the trial court a


          Lindh involved a noncapital case.       Drinkard, on the
     other hand, involved a capital case. However, the special
     provisions of chapter 154 did not apply to Drinkard's petition
because Texas does not yet qualify for expedited procedures under
28 U.S.C. § 2261(b). See Mata, 99 F.3d at 1266-67. Therefore,
Lindh overrules Drinkard insofar as it holds that the AEDPA's new
standards of review in 28 U.S.C. § 2254 apply to cases not subject
to chapter 154, whether capital or noncapital, pending on the date
of enactment of the AEDPA. See, e.g., Blankenship v. Johnson, 106
F.3d 1202, 1204 (5th Cir.1997) (applying Drinkard to noncapital
case).

                                    9
timely request, objection or motion, stating the specific grounds

for the ruling he desired the court to make if the specific grounds

were not apparent from the context.");        Tapia v. State, 933 S.W.2d

631, 633 (Tex.App.1996, writ ref'd).           Where a state court has

declined to review a criminal defendant's federal claims for

failure to comply with state procedural rules, a federal court on

habeas review may not address those claims absent a showing of

"cause" and "actual prejudice."       Wainwright v. Sykes, 433 U.S. 72,

87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977).

         However,   "the   procedural     default    rule    bars   federal

jurisdiction only if the state court denied relief because of the

defendant's violation of state procedural requirements.             The mere

existence of a procedural default, without more, does not deprive

federal courts of jurisdiction."       Shaw v. Collins, 5 F.3d 128, 131

(5th Cir.1993). Instead, the state court must have actually relied

on the procedural bar as a separate and independent reason for

denying the claim.    Id. Where the state court does not clearly and

expressly rely on procedural default to dispose of the case, we may

address the merits of the petition.       Coleman v. Thompson, 501 U.S.

722, 735, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991).

     In this case, neither the state court of appeals on direct

review nor the Texas Court of Criminal Appeals on collateral attack

relied on an independent and adequate state procedural bar in

rejecting Gochicoa's claims.         At any rate, the State does not

assert   Gochicoa's   failure   to   comply   with   the    contemporaneous

objection rule as a bar to our consideration of his claims on


                                     10
appeal, nor did it raise procedural default in opposition to

Gochicoa's petition in district court.          See Jenkins v. Anderson,

447 U.S. 231, 234 n. 1, 100 S.Ct. 2124, 2127 n. 1, 65 L.Ed.2d 86

(1980)    (holding   that    state   waived   procedural   bar   to   habeas

petitioner's claims where it failed to raise issue in district

court or on appeal).        Therefore, Gochicoa's failure to object to

the admission of the out-of-court statements of the confidential

informant does not prevent our consideration of his Confrontation

Clause claims on habeas review.

                                      C

         We must first determine whether the various references at

trial to the confidential informant's tip constituted hearsay.

What is or is not hearsay evidence in a state court trial is

governed by state law.        Cupit v. Whitley, 28 F.3d 532, 536 (5th

Cir.1994), cert. denied, 513 U.S. 1163, 115 S.Ct. 1128, 130 L.Ed.2d

1091 (1995).    Under Texas law, hearsay is defined as "a statement,

other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter

asserted."    Tex.Crim. Evid. R. 801(d).      We agree with the district

court that the prosecutor offered the confidential informant's

out-of-court statement not only to explain the officers' actions at

the scene, but also for its truth—that is, that Gochicoa was buying

heroin from Manuel Salcido.          Although a testifying officer may

refer to a tip from a confidential informant in order to show why

he happened upon the scene of a crime, the officer may not

otherwise relate the substance of that communication to the jury.


                                      11
Schaffer v. State, 777 S.W.2d 111, 114-15 (Tex.Crim.App.1989) (en

banc).    Similarly, the prosecutor may not "circumvent the hearsay

prohibition through artful questioning designed to elicit hearsay

indirectly."       Id. at 114.   This is exactly what the prosecutor did

in this case;       his questioning of both Officer Prieto and Deputy

Gomez concerning Manuel Salcido as "the other suspect ... that was

supposed to be possessing heroin or selling heroin" left little

doubt    as   to    the   substance   of   the   confidential   informant's

communication to police.          The prosecutor quelled any remaining

doubt in the minds of the jurors when, during closing argument, he

explicitly told them what the informant had said, citing the tip as

"direct evidence" that Gochicoa possessed drugs on the night in

question.     The State's argument that the prosecutor offered the

informant's communication for the sole purpose of explaining the

officers' actions is without merit;          the prosecutor elicited far

more information than necessary for the stated purpose.          Id. at 115

n. 4 (noting that where, as here, "the officer's actions (e.g., an

arrest or a search) are not put into question before the jury,

testimony that the officer acted upon "information received" or

words to that effect should be sufficient"). The statements of the

informant were offered for the truth of the matter asserted and are

therefore hearsay under Texas law.

        However, a federal court may grant habeas relief based on an

erroneous state court evidentiary ruling only if the ruling also

violates a specific federal constitutional right or renders the

petitioner's trial fundamentally unfair.           Cupit, 28 F.3d at 536.


                                      12
Gochicoa asserts that the admission of the hearsay statements

violated his rights under the Sixth Amendment—made applicable to

the states by the Fourteenth Amendment—which provides that "[i]n

all criminal prosecutions, the accused shall enjoy the right ... to

be     confronted     with    the        witnesses      against     him...."          The

Confrontation        Clause   reflects         a    preference     for    face-to-face

confrontation        at   trial     to    allow       the    accused     to   test    the

recollection and motives of the witness through cross-examination

and to allow the jury to judge the credibility of the witness by

his demeanor.       Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531,

2537-38, 65 L.Ed.2d 597 (1980).

        Although the protections of the Confrontation Clause and the

hearsay     rule      overlap,      they       are     not     coextensive;          "the

[Confrontation] Clause does not necessarily prohibit the admission

of hearsay statements against a criminal defendant, even though the

admission of such statements might be thought to violate the

literal terms of the Clause."             Idaho v. Wright, 497 U.S. 805, 813,

110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990).                            The wrongful

admission of hearsay evidence violates the Confrontation Clause

only    when   the    evidence      was    a       "crucial,    critical      or   highly

significant factor in the framework of the whole trial." Cupit, 28

F.3d at 537.          In making this determination, we consider five

general factors derived from the Supreme Court's opinion in Dutton

v. Evans, 400 U.S. 74, 87, 91 S.Ct. 210, 219, 27 L.Ed.2d 213

(1970):

(1) whether the hearsay evidence was "crucial" or "devastating";


                                            13
(2) whether prosecutors misused a confession or otherwise engaged
     in misconduct;

(3)   whether a joint trial or the                   wholesale   denial    of
      cross-examination was involved;

(4) whether the most important prosecution witness, as well as
     other    prosecution   witnesses,   was   available   for
     cross-examination; and

(5) the degree to which the hearsay evidence is supported by
     "indicia of [its] reliability."

Cupit, 28 F.3d at 532 (citing Johnson v. Blackburn, 778 F.2d 1044,

1051 (5th Cir.1985)).

      Examination of precedent indicates that the most important of

the five factors are the first and the fifth—whether the evidence

was "crucial" or "devastating" and whether it is supported by

indicia of reliability.         For example, the Supreme Court holds that

the reliability of hearsay evidence is generally determinative of

whether an out-of-court statement may be properly admitted at trial

under the Confrontation Clause.         Dutton, 400 U.S. at 89, 91 S.Ct.

at 220.    A statement of an unavailable witness is sufficiently

reliable only if it falls within a firmly rooted exception to the

hearsay   rule   or   if   it    carries     particularized   guarantees    of

trustworthiness.      Roberts, 448 U.S. at 66, 100 S.Ct. at 2539.          The

determination    of     whether      the      evidence   is   "crucial"     or

"devastating," on the other hand, recognizes that the erroneous

admission of unreliable hearsay may nonetheless be harmless in

light of other evidence at trial;           by examining whether hearsay was

"crucial" or "devastating," the court seeks to determine whether

the impermissible hearsay evidence was sufficiently damaging to the

defense to warrant reversal. United States v. Sarmiento-Perez, 633

                                       14
F.2d 1092, 1103 n. 6 (5th Cir.1981), cert. denied, 459 U.S. 834,

103 S.Ct. 77, 74 L.Ed.2d 75 (1982);              see also Cupit, 28 F.3d at 537

(holding that Confrontation Clause inquiry must determine not only

whether hearsay evidence is admissible but also whether it is

"material," i.e., whether it was "crucial" or "critical" in the

"framework of the whole trial").5

      After examining the state court record with all of these

considerations      in   mind,       we   conclude    that   use    of   the    hearsay

evidence at trial did not violate the Confrontation Clause under

the Cupit test.      On the one hand, the government concedes that the

hearsay statements of the informant do not fall within a firmly

rooted exception to the hearsay rule or carry any particularized

indicia of reliability.              The identity, perception, and biases of

the informant are unknown, as is the basis for his or her knowledge

of the facts reported to police.                On the other hand, however, the

hearsay       evidence   was    neither     crucial    to    the    prosecution      nor

devastating to the defense in the context of the trial as a whole.

     In granting the writ, the district court found that the

hearsay was       crucial      and    devastating     because      it   was    the   only

evidence that directly linked Gochicoa to the heroin;                          "no fact

          5
         The "crucial" and "devastating" prong of the test is
therefore somewhat redundant in light of the harmless error rule.
Sarmiento-Perez, 633 F.2d at 1103 n. 6 (noting that although
"[m]uch has been made of the "crucial' and "devastating' language
in Dutton and Douglas," test simply restates harmless error rule);
United States v. Bernard S., 795 F.2d 749, 754 n. 6 (9th Cir.1986)
(noting redundancy of "crucial" and "devastating" prong and
explaining that "a showing that the hearsay evidence was not
"crucial' can lead to either a finding that the confrontation
clause was not violated or a finding that such a violation was
harmless").

                                           15
offered into evidence at trial was as convincing of guilt as the

substance of the informant's statement that Petitioner was buying

heroin."    However, the tip from the informant standing alone did

not connect Gochicoa to the balloon of heroin found in the public

alleyway;     only Carrasco's testimony established an immediate,

albeit   circumstantial,    link     between    Gochicoa   and   the   drugs.

Carrasco testified that, as soon as Gochicoa spotted Officer

Prieto, he reached into his pocket and made a gesture as if he were

throwing something to the ground. On the basis of this information

alone, Deputy Gomez found the balloon filled with heroin.                 Both

Officer Prieto and Deputy Gomez testified that there were no other

objects or refuse on the ground within a ten yard radius of the

area.      Carrasco's   testimony,    coupled    with   Gochicoa's     nervous

behavior, presented strong circumstantial evidence that Gochicoa

had exercised direct physical control over the heroin.            See Mills

v. State, 847 S.W.2d 453, 455 (Tex.App.1993, writ ref'd) (finding

sufficient affirmative links to contraband to support conviction

where police officer testified that defendant threw something into

closet and only object found in closet that could have been thrown

was vial of cocaine).        Although the informant's tip certainly

bolstered the state's case, it was not "crucial or devastating"

given Carrasco's testimony.6

    6
     Nor do we find persuasive the district court's assertion that
the jurors' difficulties during deliberation demonstrate that their
verdict hinged on the prohibited testimony. The jury's request for
an additional "possession" instruction is at best ambiguous; the
most likely interpretation of the jurors' request is that they
disagreed as to whether Gochicoa could be guilty of possessing
contraband not found on his person.

                                     16
        The   most   important   prosecution     witness   was,     therefore,

Carrasco, not the hearsay declarant.        Gochicoa had a full and fair

opportunity    to    cross-examine   Carrasco,    as   well   as    all   other

prosecution witnesses.      Furthermore, the prosecutor's use of the

hearsay evidence did not constitute prosecutorial misconduct;               the

hearsay statements, once admitted in evidence without objection,

were a proper subject of the prosecutor's closing argument.7              Lopez

v. State, 632 S.W.2d 709, 713 (Tex.App.1982, no writ);                see also

Lacoste v. Blackburn, 592 F.2d 1321, 1325 (5th Cir.) (finding no

prosecutorial misconduct under Dutton test where prosecutor joined

court in admonishing testifying officer to omit reference to

substance of confidential tip), cert. denied, 444 U.S. 968, 100

S.Ct. 458, 62 L.Ed.2d 381 (1979).          Therefore, the Cupit factors

weigh against a finding that admission of the hearsay statements of

the confidential informant violated the Confrontation Clause.

                                     III

     For the foregoing reasons, we REVERSE the district court's

grant of the writ of habeas corpus and REMAND for consideration of

Gochicoa's remaining claims.

     E. GRADY JOLLY, Circuit Judge, dissenting:

     I agree with much of the majority's analysis.                 In the end,

however, I must conclude that the impermissibly admitted hearsay in


    7
     Otherwise inadmissible hearsay admitted without objection is
treated the same as any other evidence, and may be considered by
the jury in support of its verdict. Chambers v. State, 711 S.W.2d
240,   247   (Tex.Crim.App.1986);     Tex.Crim.   Evid.  R.   802
("Inadmissible hearsay admitted without objection shall not be
denied probative value merely because it is hearsay.").

                                     17
this case was "devastating" to the defense and was unsupported by

any indicia of reliability.           I would therefore affirm the district

court's judgment, and I respectfully dissent.

      The majority opinion correctly notes that the district court's

grant of habeas relief in this case is appropriate only if (a) the

state court erroneously admitted hearsay, and (b) the admission of

this hearsay violated Gochicoa's rights under the Confrontation

Clause.     Maj. Op. at ----.      I agree with the majority's conclusion

that hearsay was improperly admitted in this case.                      Id. The only

question, therefore, is whether this improper admission of hearsay

violated the rights guaranteed by the Confrontation Clause.

      The majority opinion is further correct in concluding that the

most important factors in determining whether the Confrontation

Clause    has   been    violated      is   whether       the    improperly     admitted

evidence     was   "crucial"     or    "devastating"           and   whether    it   was

supported by any independent "indicia of reliability." Maj. Op. at

----.    Applying these factors, the majority nevertheless concludes

that, although the impermissible hearsay was supported by                            no

independent indicia of reliability, its admission did not violate

Gochicoa's constitutional rights, because the evidence was neither

crucial to the prosecution nor devastating to Gochicoa's defense.

With this ultimate conclusion, I disagree.

      The    majority    holds     that      "although         the   informant's     tip

certainly bolstered the state's case, it was not "crucial or

devastating' given [Michael] Carrasco's testimony." Maj. Op. at --

--.      Carrasco's     testimony      was      indeed    damaging      to   Gochicoa:


                                           18
Carrasco testified that he had watched Gochicoa walk through the

alleyway and observed Gochicoa reach into his pocket and make a

gesture as though he was throwing something to the ground.                In

addition, Carrasco testified that Gochicoa became nervous when he

saw the police officers.        The police found a balloon containing

heroin after being directed to the location by Carrasco, and found

no other objects within the immediate area.

     Although this evidence may well support a verdict of guilt,8

it does not compel such a verdict.         The balloon containing heroin

was found in a public area—an area in which drug trafficking may

have been common.      Carrasco testified that he observed Gochicoa

from a distance of 100 to 150 feet, and although he observed

Gochicoa gesture as though discarding something, he saw nothing

leave his hand.        Thus, Carresco was unable to directly link

Gochicoa to the drugs.         Although nervousness and an unexplained

gesture provide some nexus between Gochicoa and the drugs, the

evidence that Gochicoa was in the area to buy heroin provides a

crucial link between the defendant and the drugs.          Therefore, the

hearsay testimony from an unidentified informant surely made a

unanimous    verdict     substantially     easier   to   reach,   and    was

devastating to the defense.

     The    importance    of    the   improperly    admitted   hearsay    is


    8
     I can agree that the properly admitted evidence in this case
was sufficient to allow a rational jury to convict Gochicoa, but
that is not a question before this court today. A Confrontation
Clause violation may occur when inadmissible evidence was
devastating to the defense, even if the properly admitted evidence,
viewed in isolation, is sufficient to sustain the verdict.

                                      19
underscored by the prosecution's repeated reliance upon it. In the

opening statement, throughout the trial, and in closing argument,

the   prosecutor   relied   upon   information    from   the   confidential

informant to link Gochicoa to the drugs.         In the closing argument,

the prosecutor told the jury:

      What do we know by direct evidence?       We know that Pedro
      Gochicoa was out at the project on August 15th, 1991, at about
      five or 5:15 P.M. We know his brother Jorge was waiting for
      him to come back from where he was at.

      We know that when he saw [Officer Prieto] that Pedro Gochicoa
      got nervous.   We heard that from two different witnesses,
      Officer Prieto and Michael Carrasco.

      We know that Deputy Gomez had information from a confidential
      informant that Manuel Salcido was in this area in his home
      selling heroin and that Gochicoa was buying it at this
      particular time.

      I am unable to conclude that the jury was not substantially

influenced by this impermissibly admitted evidence. Therefore, the

evidence provided by the informant was devastating to Gochicoa's

case.9

      9
     The majority opinion cites Mills v. State, 847 S.W.2d at 455,
to support the conclusion that the informant's information was not
critical in this case.     In Mills, the Texas court rejected a
criminal defendant's contention that the evidence was insufficient
to show that he knowingly possessed cocaine.

           Because Mills involved a challenge to the sufficiency of
      evidence supporting a conviction, it is of little relevance to
      our issue today.    Resolving a sufficiency of the evidence
      issue requires the court to resolve only whether a minimally
      sufficient evidence exists to support a conviction.         In
      contrast, in reviewing a Confrontation Clause challenge, we
      determine if the jury was improperly influenced by the
      impermissible evidence.

           Moreover, Mills is distinguishable from the case before
      us today. In Mills, police officers entered the defendant's
      residence pursuant to a search warrant. The officers observed
      the defendant throw something into an open closet.         In

                                    20
     In addition to determining whether inadmissible evidence is

"crucial or devastating," we must also evaluate the reliability of

the hearsay.      As the majority opinion recognizes, "the Supreme

Court holds that the reliability of hearsay evidence is generally

determinative of whether an out-of-court statement may be properly

admitted at trial under the Confrontation Clause."              Maj. Op. at ---

-. When hearsay evidence is improperly admitted, has no indicia of

reliability, and makes a conviction substantially easier to obtain,

the Confrontation Clause has been violated.             The majority concedes

that the hearsay statements of the informant have no indicia of

reliability:       the    "identity,     perception,      and   biases   of   the

informant are unknown, as is the basis for his or her knowledge of

the facts reported to police."               Yet, the majority hold that

Gochicoa's     Sixty     Amendment     rights    have    not    been   violated.

Apparently, the United States Supreme Court has no influence with

the majority members of this panel.

     In    sum,   because    the     impermissibly      admitted   hearsay    was

"devastating" to Gochicoa's defense, and was not supported by any

independent indicia of reliability.             I would therefore affirm the

district court's grant of habeas corpus but would permit the state

to retry Gochicoa.10


     contrast to the testimony in this case, the officer saw the
     object leave the defendant's hand, and was able to identify
its approximate size. More importantly, the defendant was in his
private residence when this event occurred, in sharp contrast to
the instant case, where the contraband was found in a public area.

      10
       Although Gochicoa has not prevailed today, on remand the
district court will undoubtedly carefully consider whether Gochicoa

                                        21
received adequate representation at his initial trial.

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