Harold Capestany-Cortes A/K/A Harold Cortes Capestany A/K/A Harold Capestany v. State ( 2011 )

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
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
----------
MEMORANDUM OPINION1
----------
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.
2
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,
3
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.
4
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
7