“Tulia Law” Helps Convicted Drug Dealer Win an Acquittal on Appeal

A few weeks ago, I wrote about the “Accomplice-Witness Rule,” which is the statutory adoption of the common law rule that a conviction cannot stand on the testimony of an accomplice without corroboration. Similarly, taking its name from the infamous Tulia drug cases, the “Tulia Law” (Tex. Code Crim. Proc. Art . 38.141) disfavors the testimony of a confidential informant working covertly on behalf of a law enforcement agency if the testimony is not corroborated by other evidence.

Earlier this month, the 11th District Court of Appeals (Eastland) applied the “Tulia Law” in Taylor v. State, resulting in an acquittal of the appellant’s conviction for possession with intent to deliver cocaine. In Taylor, the only witness connecting the appellant with the offense was a confidential informant, who had been arrested himself for possession of cocaine. The police equipped the informant with a wire and sent him in to a particular neighborhood to purchase cocaine. According to his trial testimony, the informant purchased $200 of cocaine from appellant. There was a problem, however, with the audio recording, as it could not independently establish that a drug transaction occurred or even that appellant was one of the voices on the recording. Therefore, because the police officers did not witness any part of the transaction, the only evidence connecting appellant to the drug transaction was the testimony of the confidential informant.

If we learned anything from the Tulia cases, it is that we can’t trust a confidential informant when he points the finger at a person and identifies him/her as a drug dealer. Apparently the 11th Court got the picture, because it reversed appellant’s conviction and entered a verdict of acquittal based on the “Tulia Law.”

CCA Holds: Out-of-Court Statements by Confidential Informant Violate Crawford and Confrontation Clause

In a big case for the 6th Amendment and the ever-expanding Crawford jurisprudence, the Texas Court of Criminal Appeals released its opinion in Langham v. State yesterday.

Langham v. State, NO. PD-1780-08

In Langham, the Texas Court of Criminal Appeals reversed the 11th Court of Appeals, which previously upheld the admissibility of out-of-court statements made to a detective by a confidential informant. In so doing, the 11th Court of Appeals reasoned 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." The testimony was later offered at trial through the Detective and used substantively in the State's case.

The CCA reversed, citing the 11th Court's "flawed understanding of what the Supreme Court meant" in Crawford v. Washington. Writing for the majority (6-3), Judge Price stated, "[w]e 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." "[I]t 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."

This case appears very fact dependant, so I'm not positive that a bright-line rule has emerged. From my point of view, however, the State is going to have an uphill battle if it wants to introduce any statements by confidential informants.

Presiding Judge Keller dissented. While she did not denounce the rule that statements from a CI would violate the CC, she would affirm this case because the substance of the statements from the CI was slight. Judges Hervey (Keller, Keasler joined) also dissented due to "reservations" regarding whether the statements of the CI were "testimonial."