Opinion
NUMBER 13-16-00190-CR
07-13-2017
EDWIN GADDIS, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the County Criminal Court at Law No. 13 of Harris County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant Edwin Gaddis challenges his conviction for driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04 (West, Westlaw through Ch. 49, 2017 R.S.). After a jury trial, Gaddis elected to have the trial court assess his punishment, and he was sentenced to confinement in the county jail for 180 days. Gaddis's sentence was subsequently suspended, and he was placed on community supervision for two years. By one issue, Gaddis contends the trial court erred when it admitted the laboratory report of a non-testifying analyst in violation of the Confrontation Clause. See U.S. CONST. amend. VI. We affirm.
This case is before the Court on transfer from the Fourteenth Court of Appeals in Houston pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through Ch. 49, 2017 R.S.).
I. BACKGROUND
Gaddis was convicted of driving while intoxicated. Deputy Walter Ruano, who was employed with the Harris County Constable's Office Precinct 8 at the time of the incident, testified for the State. Deputy Ruano testified that while following Gaddis driving on the road, he observed Gaddis swerve "in and out" of lanes and, subsequently, conducted a traffic stop. Ruano testified that, upon approaching Gaddis in his vehicle, he noticed Gaddis's eyes were bloodshot and glassy and his responses were slow. During his testimony, Deputy Ruano described the field sobriety tests which he administered to Gaddis and stated that Gaddis failed the tests. Ruano opined that Gaddis appeared to have lost the normal use of his mental and physical faculties. Deputy Ruano further explained that after he read Gaddis a statutory warning requesting a blood sample, Gaddis refused to give a sample. Deputy Ruano testified that he successfully obtained a search warrant for a sample of Gaddis's blood.
Linda Nickell, who worked as a toxicologist at the Harris County Institute of Forensic Sciences at the time of the incident, also testified for the State. In her testimony, Nickell described the process used to test for alcohol and drug substances contained in a person's blood. Nickell testified that she performed the data analysis on Gaddis's blood, while another analyst performed the extraction procedures of the testing process. As a result of her analysis, Nickell determined that Gaddis's blood contained amphetamine and methamphetamine. The State offered into evidence a copy of the report containing the results of the blood test, which Nickell agreed she had prepared herself. Moreover, Nickell testified that she evaluated the raw data to ensure protocol was followed during the testing process. She explained that if the blood sample had been improperly extracted or prepared, it would have resulted in an error present in the raw data that she analyzed to prepare her report. Nickell testified that there was no evidence to indicate proper protocols were not followed throughout the testing process of Gaddis's blood sample. Nickell agreed that personal observation of the extraction process was not necessary in order to verify that the raw data produced by the gas chromatograph machine were accurate.
The jury convicted Gaddis of driving while intoxicated. This appeal followed.
II. APPLICABLE LAW AND STANDARD OF REVIEW
The Confrontation Clause of the Sixth Amendment guarantees the accused the right to confront the witnesses against him. U.S. CONST. amend. VI.; Paredes v. State, 462 S.W.3d 510, 514 (Tex. Crim. App. 2015); see Pointer v. State, 380 U.S. 400, 403 (1965). The United States Supreme Court has held that this rule bars the admission of "testimonial" statements of a witness who does not appear at trial unless the witness who made the statement (1) testifies under cross-examination at trial, or (2) is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. See Crawford v. Washington, 541 U.S. 36, 53-54 (2004); Paredes, 462 S.W.3d at 514. The Supreme Court has stated that "testimonial" statements include those "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Paredes, 462 S.W.3d at 514 (quoting Crawford, 541 U.S. at 52); see also Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013) ("While the exact contours of what is testimonial continue to be defined by the courts, such statements are formal and similar to trial testimony.").
We defer to a trial court's determination of historical facts and credibility. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). However, we review a constitutional legal ruling, such as whether a statement is testimonial, de novo. Id.; see Lilly v. Virginia, 527 U.S. 116, 137 (1999) (explaining that when reviewing the admissibility of out-of-court statements over a Confrontation Clause objection, courts should independently review whether the evidence satisfies the demands of the Constitution).
The Supreme Court has addressed the application of the Confrontation Clause to forensic testing reports in the following cases: (1) Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009); (2) Bullcoming v. New Mexico, 564 U.S. 647, 661-62 (2011); and (3) Williams v. Illinois, 567 U.S. 50, 58 (2012). In Melendez-Diaz, the State admitted into evidence three notarized "certificates of analysis," prepared by laboratory analysts. 557 U.S. at 308-11. The certificates reported the composition, quality, and weight of the narcotics at issue. Id. The Supreme Court determined that the certificates were testimonial because they were "functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination." Paredes, 642 S.W.3d at 515 (quoting Melendez, 557 U.S. at 310-11) (internal quotation marks omitted). The testing analysts did not testify at trial, and the defendant did not have a prior opportunity to cross-examine them. Melendez, 557 U.S. at 310-11. Thus, the Supreme Court held that without the testimony of the analysts who performed the testing and prepared the reports, the admission of the certificates of analysis into evidence violated the Confrontation Clause. Id. at 311. Notably, the Court explicitly refused to hold that "anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." Id. at 311 n.1.
In Bullcoming, the State introduced into evidence a laboratory report certifying that the defendant's blood-alcohol content was above the legal limit for the aggravated driving while intoxicated offense. 564 U.S. at 653-55. At trial, the State did not call the analyst who had performed the blood-alcohol content test, certified the results, and signed the laboratory report. Id. Instead, the State called a different analyst as a witness and offered the testing analyst's report through this analyst's testimony. Id. The analyst who testified at trial was familiar with the laboratory's general testing procedures, but neither observed the testing analyst perform the procedures nor reviewed the results of the analysis. Id. at 655. The Supreme Court held that the introduction of the testing analyst's report through the testimony of a non-testing analyst violated the Confrontation Clause. Id. at 658. The Court determined the forensic report was testimonial and that the "surrogate testimony" given by the non-testing analyst explaining the report did not satisfy the defendant's Confrontation Clause rights. See Paredes, 642 S.W.3d at 515 (citing Bullcoming, 564 U.S. at 661-62); Melendez-Diaz, 557 U.S. at 334 ("The Court made clear in Davis that it will not permit the testimonial statement of one witness to enter into evidence through the in-court testimony of a second . . . .") (Kennedy, J., dissenting). The Court rejected the argument that the testing analyst was a "mere scrivener" who transcribed the results calculated by a machine because the testing analyst's certification involved checking for human error, not just reading machine-generated raw data. Paredes, 462 S.W.3d at 515 (citing Bullcoming, 564 U.S. at 659-60). The Supreme Court determined the testing analyst should be available for cross-examination to explore "the particular test and testing process he employed" and to "expose any lapses or lies" on his part. Bullcoming, 564 U.S. at 659-62.
Most recently in Williams, the Supreme Court addressed the application of the Confrontation Clause to forensic-opinion testimony. 567 U.S. at 58. In Williams, the Illinois State Police lab sent vaginal swabs to Cellmark, a private lab, and Cellmark developed a DNA profile from the semen contained in those swabs. Paredes, 462 S.W.3d at 515 (citing Williams, 567 U.S. at 59). The State did not call any of the Cellmark analysts as witnesses; instead, the State called a forensic scientist who testified that she compared the Cellmark DNA profile from the swabs to the defendant's DNA profile. Paredes, 462 S.W.3d at 515 (citing Williams, 567 U.S. at 59). This forensic specialist determined that the profiles were a match. Williams, 567 U.S. at 59. The Cellmark report, prepared by its analysts, on which this forensic scientist based her conclusion, was not admitted into evidence. Id. at 62. Justice Alito, writing for a plurality of the Court, "held that there was no Confrontation Clause violation because the testifying expert's implicit, in-court adoption of an underlying report was not offered to prove the truth of the matter asserted." Paredes, 462 S.W.3d at 516 (citing Williams, 567 U.S. at 57-58); see Williams, 567 U.S. at 58 ("Out-of-court statements that are related by the [testifying] expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause."). However, as the Texas Court of Criminal Appeals observed in Paredes, Williams has limited value as precedent and failed to provide a narrow rule. See Paredes, 462 S.W.3d at 516.
In a four-one-four opinion, even though a majority of the justices concluded the forensic-opinion testimony did not violate the Confrontation Clause, they could not agree on a rationale. Williams v. Illinois, 567 U.S. 50 (2012).
Following this series of Supreme Court cases, the Texas Court of Criminal Appeals has twice addressed the application of the Confrontation Clause to forensic testing reports and opinion testimony. In Burch v. State, the defendant was indicted for possession with intent to deliver a controlled substance. 401 S.W.3d 634, 635 (Tex. Crim. App. 2013). The State offered into evidence a laboratory report certifying the weight of the substance tested and finding that the substance was cocaine. Id. Both the testing analyst and the reviewing analyst signed this report; however, the State called only the reviewing analyst to testify at trial. Id. The reviewing analyst testified that she "basically double-checked everything" the testing analyst did, but there was no indication that the reviewing analyst either observed the tests being performed or conducted the tests herself. Id. at 635-36. The Texas Court of Criminal Appeals determined this case was governed by Bullcoming and held that the admission of the laboratory report into evidence violated the Confrontation Clause. Id. at 637. The court stated there was no indication the defendant had a prior opportunity to cross-examine the testing analyst and there was no indication the reviewing analyst had personal knowledge that the tests were done correctly. Id. at 637-38 ("[T]he witness being called needs to have personal knowledge of the facts in issue—the specific tests and their execution."). Thus, presenting the defendant with the opportunity to cross-examine the reviewing analyst at trial did not satisfy the defendant's right of confrontation because "without having the testimony of the analyst who actually performed the tests, or at least one who observed their execution, the defendant has no way to explore the types of corruption and missteps the Confrontation Clause was designed to protect against." Id.
Most recently, the Texas Court of Criminal Appeals considered a Confrontation Clause challenge in Paredes, a capital murder case. 462 S.W.3d at 513-14. In Paredes, the police recovered a t-shirt worn by the defendant during the commission of the crime and sent the shirt to a private laboratory for DNA testing. Id. at 512. The testing procedures revealed that DNA extracted from a bloodstain on the shirt matched the DNA profile of the victim. Id. The State called the forensic laboratory director to testify about the DNA analysis and offered only the director's opinion testimony into evidence. Id. at 512-13. The director testified that the DNA testing was conducted in an assembly-line batch process with three different analysts performing each step of the testing in order to generate raw DNA data for analysis. Id. at 512. Even though the director did not physically watch the three analysts conduct the initial testing procedures, she testified that she supervised the process and had personal knowledge of the tests performed. Id. The director also provided details about the laboratory's safety protocols, which were in place to identify process errors. Id. at 513. The director testified that she herself conducted the final analysis and, based on the raw DNA data provided by the three testing analysts, she concluded there was a match between the DNA data generated and the DNA profile of the victim. Id. at 512. The State neither introduced the raw data that the director relied on to formulate her opinion, nor called the three testing analysts to testify at trial. Id. at 513. The director testified that "she was not testifying about someone else's opinions because she was responsible for compiling the data generated by the various instruments and reaching the ultimate conclusion[.]" Id.
Because the director performed the "crucial analysis" determining that the DNA sample taken from the defendant's shirt matched the victim's DNA profile, the conclusion to which she testified at trial was her own. Id. at 518. The raw DNA data the director used in formulating her own opinion merely provided a basis for that opinion. Id. at 514. Thus, the Texas Court of Criminal Appeals recognized that because her testimony was not used as a substitute for out-of-court testimony, the "testifying expert was more than a surrogate for a non-testifying analyst's report." Id. at 514, 518. The court also noted that the lab reports on which the director relied to reach her conclusion were not entered into evidence, so this was "not a case in which the State attempted to bring in a testimonial lab report through a surrogate." Id. at 518. Furthermore, the court acknowledged that, without the director's independent analysis, the raw DNA data generated through the testing procedures would "stand for nothing" on their own. Id. at 519. The court concluded that because the testifying director "used non-testimonial information—computer-generated DNA data—to form an independent, testimonial opinion," she did not testify about a formal report prepared by a non-testifying analyst, and the defendant had an opportunity to cross-examine the director at trial, no violation of the Confrontation Clause had occurred. Id.; Molina v. State, 450 S.W.3d 540, 551 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ("Because [the testifying analyst] independently analyzed the data and offered his own opinions, testified at length and was cross-examined concerning the basis for his opinions, and was not merely relying on the written analysis of others, this case is distinguishable from Bullcoming and Burch . . . .").
III. DISCUSSION
By his sole issue on appeal, Gaddis contends that the admission of Nickell's laboratory report violated the Confrontation Clause because the analyst who performed the extraction on his blood sample did not testify. Gaddis argues Bullcoming and Burch should govern this case because the procedures performed by the extraction analyst were subject to human error. The State argues, instead, that Paredes governs this case because Nickell's testimony and her report were based on her own conclusion after she analyzed the machine-generated raw data. Consequently, the State argues that admission of Nickell's laboratory report did not violate Gaddis's constitutional right under the Confrontation Clause. We agree with the State.
Nickell testified that she analyzed the data generated by the gas chromatograph machine to test Gaddis's blood sample for amphetamine and methamphetamine. During her testimony, she explained the testing process of a blood sample, including an overview of the safety protocols in place to ensure the blood sample was properly prepared and tested according to procedure. Nickell testified that if the blood sample had not been prepared according to procedure, she would have observed an error present in the raw data generated by the machine. Nickell agreed that she analyzed the data to ensure proper protocols were followed in the testing process and stated that she did not observe any errors in the data output. She also agreed that it was not necessary for her to physically witness a person perform the initial testing procedures because, if they had been performed incorrectly, she would have observed an error based on the inaccuracy of the test results. Nickell explained that if that had been the case, she would not have produced a report documenting her conclusions.
In her discussion of the initial testing procedures, Nickell recounted each analyst's responsibility at each step of the testing process, including the second and third analysts' responsibilities of performing the extraction and loading the blood sample onto the machine. Nickell stated that she was neither physically present when the sample was prepared, nor when the sample was run through the gas chromatograph machine. Nickell testified that as part of her analysis, she examined the data results produced by the machine to determine whether a substance was present in the blood sample. Pursuant to her analysis, Nickell concluded that both amphetamine and methamphetamine were in the blood. Nickell testified that she personally generated the forensic laboratory report, which contained her conclusion. The trial court admitted Nickell's report into evidence. It did not admit any of the machine-generated raw data into evidence.
Gaddis's case is similar to Paredes and distinguishable from both Bullcoming and Burch because Nickell, the testifying analyst, acted as more than a mere "surrogate" introducing information from a non-testifying analyst's report. See Paredes, 462 S.W.3d at 518. As in Paredes, Nickell performed the "crucial analysis" determining Gaddis's blood sample contained amphetamine and methamphetamine. Id. Also, like Paredes, the raw data that Nickell relied upon in forming her own opinion merely provided a basis for that opinion; the raw data produced by the non-testifying analyst's efforts were not admitted into evidence. Id.; see Paredes v. State, 439 S.W.3d 522, 526 (Tex. App.—Houston [14th Dist.] 2014), aff'd by Paredes, 462 S.W.3d at 510. Without Nickell's independent analysis, the raw data generated through the testing procedures would "stand for nothing" on their own. See Paredes, 462 S.W.3d at 519. It was Nickell's report, not the raw data, that contained facts relevant to Gaddis's prosecution, and Gaddis was able to cross-examine Nickell regarding her report. See Paredes, 439 S.W.3d at 527.
This situation is distinguishable from that in Bullcoming, in which "[n]o further analysis was required to render a testimonial statement" concerning the conclusion at issue. Paredes, 462 S.W.3d at 519. In Bullcoming, the report itself certified the defendant's blood contained alcohol above the legal limit of intoxication, and it was this report that was admitted into evidence. Bullcoming, 564 U.S. at 653-56. Instead, as in Paredes, Nickell's independent analysis was necessary to arrive at the appropriate conclusion, namely to determine whether the blood sample contained an illegal substance. See Paredes, 462 S.W.3d at 519. The raw data did not reflect whether the blood sample contained amphetamine or methamphetamine. Thus, the raw data were "not the functional equivalent of live, in-court testimony because [the raw data] did not come from a witness capable of being cross-examined. [The raw data] came from a computer." Id. Moreover, Nickell was not providing "surrogate testimony" because she testified about her own report, which was admitted into evidence, and her own conclusion, which she formed independently as a result of her analysis. Cf. Bullcoming, 564 U.S. at 661-62 (explaining that because the analyst's testimony could not convey what the testing analyst "knew or observed" about the certification report that he produced, and because the testifying analyst did not have an "independent opinion" about the test results, his testimony qualified as surrogate testimony).
Nor do the circumstances in this case present the human-error problem observed in Burch, where the State called only the reviewing analyst to testify who "could not verify that the results were properly generated." See Paredes, 462 S.W.3d at 518 (citing Burch, 401 S.W.3d at 637). The testifying analyst in Burch did not conduct any analysis herself and instead only reviewed the original process without obtaining personal knowledge that the testing procedures were done correctly. Burch, 401 S.W.3d at 635-36. Gaddis contends that because the procedures performed by the extraction analyst were subject to human error, he had a constitutional right to confront and cross-examine that analyst. However, unlike the testifying analyst in Burch, Nickell had personal knowledge of the testing procedures performed on the blood sample, which was evident based on her summary of each step of the blood sample testing process in her testimony. Cf. Burch, 401 S.W.3d at 637 ("Although Lopez, the testifying witness, was a supervisor who "reviewed" the original process, we cannot say, on this record, that she had personal knowledge that the tests were done correctly[.]"). As in Paredes, Nickell did not physically watch the extraction procedure performed, and she did not conduct the procedure herself. See Paredes, 562 S.W.3d at 512. Nickell testified that, instead, as part of her analysis, she examined the raw data to ensure no errors were present. Nickell explained that the presence of errors in the data would have indicated the procedures had been performed incorrectly. If the data contained errors, she would not have prepared a laboratory report documenting her conclusion.
Finally, as observed in Paredes, the United States Supreme Court "explicitly refused to hold in Melendez-Diaz that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." Paredes, 462 S.W.3d at 518 (quoting Melendez-Diaz, 557 U.S. at 311 n.1) (internal quotations omitted); see Mayer v. State, 494 S.W.3d 844, 852 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) ("We decline to adopt a view that the Supreme Court explicitly rejected."). Similar to Paredes, Gaddis had the opportunity to cross-examine Nickell about her conclusion that the blood sample contained amphetamine and methamphetamine. Moreover, based on her own analysis of the raw data, Nickell reached her own conclusion rather than relying on another analyst's findings or report. Thus, based on the reasoning in Paredes, the State was not required to present the extraction analyst as a witness. See Paredes, 462 S.W.3d at 518.
Therefore, because Nickell independently analyzed the raw data concerning the amphetamine and methamphetamine substances contained in the blood sample, the admission of her own laboratory report did not violate the Confrontation Clause even in the absence of testimony from the extraction analyst. Nickell testified about her own conclusions, and Gaddis had the opportunity to cross-examine her about these conclusions at trial. See Paredes, 462 S.W.3d at 519; Molina, 450 S.W.3d at 551.
We overrule Gaddis's sole issue on appeal.
IV. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 13th day of July, 2017.