                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00058-CR


HAROLD CAPESTANY-CORTES                                       APPELLANT
A/K/A HAROLD CORTES
CAPESTANY A/K/A HAROLD
CAPESTANY

                                     V.

THE STATE OF TEXAS                                                  STATE


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         FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                       MEMORANDUM OPINION1
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                              I. INTRODUCTION

     A jury convicted Appellant Harold Capestany-Cortes a/k/a Harold Cortes

Capestany a/k/a Harold Capestany of possession of a controlled substance,

methamphetamine, in an amount over four grams but less than two hundred


     1
      See Tex. R. App. P. 47.4.
grams with intent to deliver and of possession of a controlled substance,

methamphetamine, in an amount less than one gram.                After finding the

enhancement and habitual paragraphs in the indictment to be true, the jury

assessed his punishment at ninety-nine years‘ imprisonment on both counts.

The trial court sentenced him accordingly, ordering that the sentences run

concurrently. In one issue, Capestany-Cortes argues that the trial court violated

his confrontation rights by refusing to redact statements made by the confidential

informant on a videotape admitted in evidence. We will affirm.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

      Investigator Ray Miller with the Hood County Sherriff‘s Office arranged for

a confidential informant to make a controlled purchase of methamphetamine from

Capestany-Cortes. Investigator Miller, along with two other investigators, met

with the informant at a predetermined location, searched the informant and his

vehicle, gave him money to make the controlled purchase, and equipped him

with an audio and video recording device that looks like an ink pen. Investigator

Miller rode in the informant‘s vehicle to Capestany-Cortes‘s house. Investigator

Miller stayed in the vehicle while the informant went inside the house; the

informant told Capestany-Cortes that Investigator Miller was his uncle.       The

informant purchased less than one gram of methamphetamine, and he and

Investigator Miller returned to the predetermined location to meet with the other

investigators.




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      The investigators obtained a search warrant for Capestany-Cortes‘s

residence. Capestany-Cortes was not at home, but during the search, he arrived

in a vehicle with two other people. Officers found approximately eight grams of

methamphetamine in the backseat of the vehicle next to where Capestany-

Cortes had been sitting.

      Over defense counsel‘s hearsay and confrontation objections, the video

and audio recording of the controlled purchase was played for the jury at trial.

On the recording, the confidential informant commented on the quality of the

methamphetamine he had last received from Capestany-Cortes‘s common-law

wife Julie. Capestany-Cortes responded that he was ―fixing to get some more.‖

                                  III. VIDEOTAPE

      In his sole issue, Capestany-Cortes argues that his confrontation rights

were violated by the admission of the statements made by the confidential

informant on the video and audio recording. See U.S. Const. amend. VI; Tex.

Const. art. I, § 10.

      The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides that, ―[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him.‖ U.S. Const.

amend. VI; Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974).

The Sixth Amendment right of confrontation is a fundamental right and is

applicable to the states by virtue of the Fourteenth Amendment. Pointer v. State,




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380 U.S. 400, 403, 85 S. Ct. 1065, 1067–68 (1965); Shelby v. State, 819 S.W.2d

544, 546 (Tex. Crim. App. 1991).

      A trial court violates an accused‘s Sixth Amendment rights by admitting a

hearsay statement made by a nontestifying declarant if the statement was

testimonial and the accused lacked a prior opportunity for cross-examination.

Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004). The

Confrontation Clause ―does not bar the use of testimonial statements for

purposes other than establishing the truth of the matter asserted.‖ Del Carmen

Hernandez v. State, 273 S.W.3d 685, 687 (Tex. Crim. App. 2008) (citing

Crawford, 541 U.S. at 59 n.9); see Langham v. State, 305 S.W.3d 568, 576 (Tex.

Crim. App. 2010).

      We review an error in admitting evidence in violation of the Confrontation

Clause under rule of appellate procedure 44.2(a), and we must reverse unless

we can conclude beyond a reasonable doubt that the error did not contribute to

the appellant‘s conviction or punishment. See Tex. R. App. P. 44.2(a); Williams

v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). In reviewing whether the

error in admitting out-of-court statements in violation of Crawford is harmless

beyond a reasonable doubt, we consider (1) the importance of the evidence to

the State‘s case; (2) whether the evidence was cumulative of other evidence; (3)

the presence or absence of evidence corroborating or contradicting the

statement on material points; and (4) the overall strength of the prosecution‘s

case. Langham, 305 S.W.3d at 582; Davis v. State, 203 S.W.3d 845, 852 (Tex.


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Crim. App. 2006), cert. denied, 549 U.S. 1344 (2007) (citing Delaware v. Van

Arsdall, 475 U.S. 673, 684 (1986)). Courts may consider other factors as well,

but the relevant inquiry is whether there is a reasonable possibility that the

Crawford error, ―within the context of the entire trial, ‗moved the jury from a state

of non-persuasion to one of persuasion‘ on a particular issue.‖          Davis, 203

S.W.3d at 852–53 (quoting Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim.

App. 2000), cert. denied, 532 U.S. 944 (2001)).

      Here, Capestany-Cortes complains of the following statement made by the

confidential informant on the recording: ―I like that shit that you got that Julie

gave me the other day. . . . Last night. That‘s some good shit.‖ Capestany-

Cortes responded that he was ―fixing to get some more of it too.‖2

      Even assuming, without deciding, that the admission of this statement

violated Capestany-Cortes‘s confrontation rights, any error did not contribute to

his convictions or punishments. See Tex. R. App. P. 44.2(a). A statement about

the quality of drugs that the informant got from Capestany-Cortes‘s common-law

wife had little to no importance to the State‘s case; the jury saw a video of the


      2
       Capestany-Cortes complained generally at trial that all of the informant‘s
statements on the recording should have been redacted. On appeal, Capestany-
Cortes argues that ―damning statements made by the informant‖ should have
been redacted but specifically points out only one statement—the informant‘s
―discuss[ing] the quality of the drugs he received from [Capestany-Cortes‘s]
common-law wife [Julie].‖ Thus, because he refers to only this one statement
and because a review of the recording reveals no other ―damning statements‖
but instead only greetings and casual conversation between the informant and
Capestany-Cortes, we will address only this statement.


                                         5
controlled purchase of approximately one gram of methamphetamine by the

confidential informant and was presented with evidence of the methamphetamine

and paraphernalia related to selling drugs that police seized later that night

pursuant to a search warrant. The statement—that the informant liked the drugs

―that [Capestany-Cortes] got that Julie gave [the informant]‖—was not

necessarily cumulative of other evidence in the case, but the fact that Capestany-

Cortes dealt methamphetamine and had sold to the confidential informant in the

past was admitted in evidence through Investigator Miller‘s testimony at trial;

thus, the statement was corroborated on its material point—that Capestany-

Cortes had previously sold methamphetamine to the informant. Finally, the State

had a strong case against Capestany-Cortes, based on evidence of the

controlled purchase, including the recording of it, and evidence of the later-seized

methamphetamine pursuant to a search warrant.

      We conclude that, within the context of the entire trial, there was no

reasonable possibility that the confidential informant‘s statement at issue here

―‗moved the jury from a state of non-persuasion to one of persuasion‘ on a

particular issue.‖ See Davis, 203 S.W.3d at 852–533 (quoting Wesbrook, 29

S.W.3d at 119); see also Tex. R. App. P. 44.2(a).        We overrule Capestany-

Cortes‘s sole issue.




                                         6
                                IV. CONCLUSION

      Having overruled Capestany-Cortes‘s sole issue, we affirm the trial court‘s

judgments.


                                                 SUE WALKER
                                                 JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 3, 2011




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