              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

             K ELLER, P.J., filed a dissenting opinion in which K EASLER and
H ERVEY, JJ., joined.

                                    DISSENTING OPINION

       The Court seems to be confused about what the testimony was at appellant’s trial. I

have read the record several times, but I still cannot find the “greater and more damning

detail,” the “too much incriminating detail,” and the “too much damning information” about

appellant with which the State “clearly crossed the line.” 1 The Court does not say what that

detailed and damning information was. What the Court seems to rely on is Detective Smith’s


       1
           Court’s op. at 20, 21, 23.
                                                                    LANGHAM DISSENT - 2

testimony about what he personally observed at the drug house.2 That is not hearsay, its

admission was not objectionable, and the State was entitled to use that testimony for its

substantive value.

       Detective Smith, in fact, repeated very little of what the confidential informant told

him about appellant. Smith testified that the C.I. told him appellant was at the residence

“while this was taking place,” which, at most, means she was at the house while drugs were

being sold from it. After Smith testified that Charlie Collins was the only person whom the

C.I. identified by name as operating the crack-cocaine distribution business at the house,

Smith said that appellant was “also involved.” This is the only evidence from the C.I. about

appellant that was even arguably improperly admitted.

       The Court says the court of appeals had a “flawed understanding” of what the

Supreme Court means by the “primary” purpose of an investigation.3 This Court unfairly

accuses the court of appeals of defining “primary” as “first in time.” But all the court of

appeals said was, “Here, 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.” There is no suggestion in this language that the

court of appeals used the word “primary” to mean anything other than the obvious “first in

importance.”



       2
           Id. at 9.
       3
           Id. at 17.
                                                                         LANGHAM DISSENT - 3

       The Court also says that the State relies on the Sixth Circuit opinion in Cromer.4 This

is a flawed understanding of the State’s argument. Appellant asks us to adopt the reasoning

in Cromer; the State does not. The State just responds to appellant’s claim by arguing that,

even under Cromer, appellant loses.

       Finally, for two reasons, I take issue with the Court’s decision to remand the case for

a harm analysis. First, the court’s harm analysis did not “simply” say the evidence was

sufficient. It also said that even if there were error, “the error would not be reversible

because beyond a reasonable doubt the error did not contribute to the conviction or

punishment.” This is the correct standard.

       Second, we do not normally remand a case for a harm analysis unless none has been

done or, if one has been done, we have issued an opinion in the interim that could affect the

analysis. This is especially true if we granted review on the issue. If a court of appeals has

conducted a flawed harm analysis, our usual procedure is not to say “do it again, but better”

but to perform the harm analysis ourselves.

       I respectfully dissent. Furthermore, I join Judge Hervey’s dissenting opinion.

Filed: March 3, 2010
Publish




       4
           Id. at 14, 15; United States v. Cromer, 389 F.3d 662 (6th Cir. 2004).
