Opinion
NO. PD-1199-17
10-09-2019
Andrew Lee WILLIAMS, Appellant v. The STATE of Texas
OPINION
Andrew Williams was charged with manslaughter for killing a pedestrian with his vehicle. One of the State's theories was that Williams was intoxicated when the crash occurred. To support this theory, pursuant to Article 38.41 of the Code of Criminal Procedure, the State offered an analysis of Williams's blood without calling the analyst who tested the blood as a sponsoring witness. The court of appeals decided that the trial judge properly admitted this evidence over Williams's confrontation objection. We agree.
See generally Tex. Code Crim. Proc. art. 38.41 ("Certificate of Analysis").
I. BACKGROUND
Donna Treesh was jogging when she was struck and killed by a vehicle driven by Andrew Williams. After colliding with Treesh, Williams fled the scene. Police located Williams and his vehicle a short time later. Suspecting that Williams was intoxicated, the police obtained a search warrant to collect a sample of his blood. Williams was ultimately charged with manslaughter and failure to stop and render aid.
Tex. Penal Code § 19.04 ; Tex. Transp. Code § 550.021(c)(1)(A).
Williams's blood sample was sent to two labs. First, the blood was tested at the Brazoria County Crime Laboratory by analyst Sam Wylie. Wylie's analysis revealed the presence of meprobamate, a metabolite of carisoprodol or "Soma," and THC, the psychoactive ingredient in cannabis, in Williams's blood. The blood was also tested at "NMS Labs" (NMS), an independent forensic testing facility in Pennsylvania. Under the more-sensitive NMS analysis, Williams's blood tested positive for amphetamine, methamphetamine, delta-9 THC, delta-9 Carboxy THC, benzoylecgonine, hydrocodone, carisoprodol, and meprobamate.
About 50 days before the trial began, the State notified the trial court and Williams that, pursuant to Code of Criminal Procedure Article 38.41, it would offer the NMS laboratory report as evidence at trial via a "certificate of analysis." Attached to this notice was an affidavit from Dr. Wendy Adams, an Assistant Laboratory Director at NMS.
As relevant here, Adams's affidavit established that (1) Adams is employed by NMS Labs; (2) NMS is accredited by the American Board of Forensic Toxicology; (3) Adams is familiar with NMS's standard operating procedures; (4) Adams's duties as an Assistant Laboratory Director include the analysis of evidence "for one or more law enforcement agencies"; (5) Adams's curriculum vitae , which was attached to the affidavit, accurately reflected her educational background; (6) she had "reviewed the data from the tests or procedures on the toxicological evidence" from Williams's case; and (7) the attached lab report represented "an accurate record of the tests or procedures performed on the ... evidence received by this laboratory and are reliable and approved by NMS Labs."
Also attached to the State's notice were fifteen pages of records comprising the results of NMS's analysis, as indicated above. Williams did not lodge a pre-trial objection to the use of the certificate.
But at trial, when the State offered the NMS report into evidence without calling anyone from NMS as a sponsoring witness, Williams did object. Williams claimed that admitting the report without the testimony of an NMS analyst would violate his Sixth-Amendment right to confrontation. While Williams acknowledged that the State's timely filed certificate of analysis might, in theory, have operated to defeat his confrontation objection, he argued that the certificate in this case did not "substantially compl[y]" with Article 38.41. Williams posited that, to meet the minimum threshold of "substantial compliance," a certificate of analysis must contain a sworn statement from the analyst who actually conducted the tests. The State's certificate in this case did not establish that Adams herself conducted or observed any of the tests done on Williams's blood.
The State countered that, under the article's notice-and-demand provision, Williams was required to raise any objections at least ten days before trial—and that his failure to do so forfeited his confrontation objection. The trial judge overruled Williams's objection without stating his reasons for doing so. The jury ultimately found Williams guilty of both offenses and sentenced him to sixty years' imprisonment for each one.
On appeal, Williams argued that the trial court abused its discretion when it admitted the State's certificate of analysis over his confrontation objection. The Fourteenth Court of Appeals rejected this argument and affirmed the conviction, holding that "[a]bsent a more specific requirement in the statute that the affiant be the certifying analyst, the Certificate of Analysis substantially complies with the requirements of [A]rticle 38.41." That being the case, "appellant was required to file a written objection at least ten days before the beginning of trial." Since counsel failed to object pre-trial, the court of appeals determined that Williams had failed to preserve his confrontation complaint.
Williams v. State , 531 S.W.3d 902, 917 (Tex. App.—Houston [14th Dist.] 2017) (citations omitted).
Id. at 918 (referring to Tex. Code Crim. Proc. art. 38.41, § 4 ).
Id.
The court of appeals expressly decided that this certificate of analysis "substantially complies with the requirements of [A]rticle 38.41." The thrust of Williams's argument is that this certificate does not "substantially compl[y]" with Article 38.41, and the thrust of the State's argument is that it does. There is therefore no basis for the suggestion that this issue was not adequately briefed by the parties or is not properly before us. It is entirely appropriate for us to decide this issue, even if we ultimately construe "substantial compliance" to mean something other than what the parties or the court of appeals understood it to mean.
Id. at 917 (citing Tex. Code Crim. Proc. art. 38.41, § 5 ).
See Appellant's Brief on Discretionary Review at 6 ("Appellant argues that a certificate that does not contain the sworn affidavit of the chemist who personally conducted the testing does not substantially comply with Section 5 of Article 38.41").
See State's Brief on Discretionary Review at 2 ("At issue is whether the certificate admitted into evidence as State's Exhibit 138 substantially complies with the requirements of article 38.41.").
See Concurring Opinion at 487–88.
Cf. Oliva v. State , 548 S.W.3d 518, 520 (Tex. Crim. App. 2018) ("We, of course, are not bound by any agreement or concessions by the parties on an issue of law.").
II. LAW
The Sixth Amendment Confrontation Clause provides the accused in a criminal prosecution the right to be confronted with the witnesses against him. So when the State offers a "testimonial" statement against the accused into evidence, the accused generally has a right to insist that the person making the statement appear in court and be subject to cross-examination. Forensic laboratory reports created solely for an evidentiary purpose, made in aid of a police investigation, are considered testimonial. Ordinarily, then, a criminal defendant has a right to insist that a forensic analyst making incriminating claims in a laboratory report explain and defend her findings in person at trial.
U.S.Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."); see also Pointer v. Texas , 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (holding that the Sixth Amendment right of confrontation is "enforced against the States under the Fourteenth Amendment") (citations omitted).
See Crawford v. Washington , 541 U.S. 36, 52–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Bullcoming v. New Mexico , 564 U.S. 647, 664, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) (quoting Melendez-Diaz v. Massachusetts , 557 U.S. 305, 311, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ).
But the State may, without offending the Confrontation Clause, adopt "procedural rules" governing confrontation-based objections. For example, the Constitution permits a State to enact a "notice-and-demand" statute. "In their simplest form, notice-and-demand statutes require the prosecution to [notify] the defendant of its intent to use an analyst's report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst's appearance live at trial." The United States Supreme Court has listed Article 38.41 in the Texas Code of Criminal Procedure as an example of a constitutionally permissible notice-and-demand provision.
Melendez-Diaz , 557 U.S. at 327, 129 S.Ct. 2527 (citing Wainwright v. Sykes , 433 U.S. 72, 86–87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ).
Id. at 326–27, 129 S.Ct. 2527.
Id. at 326, 129 S.Ct. 2527.
Id.
Article 38.41, Section 1 says that a "certificate of analysis that complies with this article is admissible in evidence ... to establish the results of a laboratory analysis of physical evidence conducted by or for a law enforcement agency without the necessity of the analyst personally appearing in court." Section 3 says that a certificate of analysis under Article 38.41 "must contain" the following information certified under oath: (1) the analyst's name and the name of the laboratory employing her; (2) a statement that the laboratory is properly accredited; (3) a description of the analyst's education, training, and experience; (4) a statement that the analyst's duties include analyzing evidence for one or more law enforcement agencies; (5) a description of the tests or procedures conducted by the analyst; (6) a statement that the tests or procedures were reliable and approved by the laboratory; and finally (7) the results of the analysis.
Id. § 3.
Section 4, the notice-and-demand provision, requires the offering party to file the certificate with the trial court and provide a copy to the opposing party "[n]ot later than the 20th day before the trial begins." But in any event, "[t]he certificate is not admissible under Section 1 if, not later than the 10th day before the trial begins, the opposing party files a written objection to the use of the certificate."
Id. § 4.
Id.
Finally, Section 5 states that a certificate "is sufficient for purposes of this article if it uses the following form or if it otherwise substantially complies with this article." A form affidavit, worded in the first person, is provided: "My name is .... I am employed by .... My educational background is ...," and so forth. The issue in this case is whether, this first-person language notwithstanding, someone other than the analyst who conducted the testing can serve as the affiant for a certificate of analysis under Article 38.41.
Id. § 5.
Id.
III. ANALYSIS
A. Has Williams forfeited his confrontation claim?
At the outset, we note that there is a potential procedural-default issue. As noted above, Article 38.41, Section 4 requires the offering party to give the other party a copy of the proposed certificate of analysis "not later than the 20th day before the trial begins." The State complied with this requirement in this case. Section 4 also says that a certificate offered under Section 1 is not admissible if, "not later than the 10th day before the trial begins," the opposing party files a written objection. In this case, Williams did not object pre-trial; he waited until the certificate was offered at trial to raise his confrontation objection. By failing to object to the certificate within the statutory timeline, did Williams forfeit his subsequent constitutional, confrontation-based objection?
Tex. Code Crim. Proc. art. 38.41, § 4 (some capitalization altered).
Id.
The parties seem to agree that if the State timely files a substantially compliant certificate of analysis and the defendant fails to object, the certificate is admissible at trial "without the necessity of the analyst personally appearing in court." In that scenario, any confrontation objection at trial would necessarily fall on deaf ears. By virtue of the timely filed, substantially compliant certificate of analysis, the defendant would have been put on notice that, if he wanted to assert his right of confrontation, he needed to assert it within a particular time frame. And, if he fails to do so, the certificate will be admitted over any subsequent confrontation objection.
See Tex. Code Crim. Proc. art. 38.41, §§ 1, 4, 5.
But what if the State files a certificate that neither fully nor even "substantially" complies with Article 38.41 ? What if, for example, the State timely files a certificate that includes only the results of the analysis without any accompanying affidavit or sworn statement—and then declares its intent to offer the certificate without calling the analyst as a sponsoring witness? Is it still the case that, if the defendant fails to timely object to the use of that certificate, it remains admissible over his subsequent confrontation objection?
Williams argues that Section 4's timely-objection requirement is triggered only if the proffered certificate meets the minimum threshold standard of "substantial compliance" with Article 38.41. And, according to Williams, the State's certificate in this case did not substantially comply with the article because it did not contain a sworn statement from the analyst who tested his blood. Under Williams's reading of the statute and his assessment of the State's certificate in this case, he was under no obligation to object to the certificate pre-trial. He therefore asserts that his confrontation objection was properly made when the State offered the certificate into evidence at trial.
See also State's Brief on Discretionary Review at 22 (arguing that Dr. Adams's affidavit "substantially complies with 38.41 ... and thereby triggered a time frame" in which Williams was obligated to object).
Because we decide that the certificate in this case does substantially comply with Article 38.41 (at least in the particular, narrow regard Williams has complained about on appeal), we need not decide this preservation issue. In receipt of a substantially compliant certificate of analysis more than twenty days before trial, Williams was required to object to the use of the certificate in a timely manner or risk losing his ability to assert his right of confrontation at trial. We leave for another day an examination of the procedural-default consequences of a defendant's failure to timely object to a certificate of analysis that does not substantially comply with Article 38.41.
B. What is "substantial" compliance?
While Section 3 of Article 38.41 describes the information that a certificate of analysis "must contain," the plain purpose of Section 5 is to describe the various forms that a certificate can permissibly take. If the offering party uses the prescribed form (what Section 5 refers to as "the following form"), worded in the first person, it can rest assured that the certificate will be deemed "sufficient" for purposes of Article 38.41. But that is not the only form that a certificate of analysis may take. Section 5 is worded in the disjunctive; a certificate is sufficient if it uses the prescribed form "or if it otherwise substantially complies with" Article 38.41.
Id. § 5.
Id.
The word "otherwise," as it appears in Section 5, is a clear indication that Section 5 is a permissive provision about form, not a mandatory provision about substance. That is, Section 5 does not dictate what kinds of information the certificate "must contain." It describes how the certificate may, at the proponent's discretion, be worded. In common usage, "otherwise" means "in a different way or manner." What Section 5 says, then, is that the offering party may structure the certificate of analysis in any "way or manner" it wishes, so long as the certificate "substantially" complies with Article 38.41.
See id. § 3.
Otherwise , Webster's New Collegiate Dictionary (1st ed. 1980); see also Kirsch v. State , 357 S.W.3d 645, 650 (Tex. Crim. App. 2012) (citing Tex. Gov't Code § 311.011 ) ("[U]ndefined words and phrases [in a statute] shall be construed according to the rules of grammar and common usage.") (internal quotation marks omitted).
That brings us to the critical question in this case: What does it mean for a certificate of analysis to "substantially" comply with Article 38.41 ? To answer this question, we look to our construction of another statute containing the phrase "substantial compliance."
Article 26.13(a) of the Code of Criminal Procedure says that, before accepting a plea of guilty or nolo contendere , the trial judge "shall admonish the defendant" upon six separately enumerated items. However, subsection (c) provides that, in admonishing the defendant, "substantial compliance by the court is sufficient." There was a time in our jurisprudence when we held that, if one of the statutorily enumerated admonishments was not given "but the admonishment was immaterial to the plea," the trial judge's admonishments would still, as a whole, be considered substantially compliant with Article 26.13(a).
Id. art. 26.13(c).
E.g. , Whitten v. State , 587 S.W.2d 156, 158 (Tex. Crim. App. 1979) (citations omitted).
But in Cain v. State , we "rejected the ... approach of finding substantial compliance where there was in fact no compliance with a particular admonishment." We described as "legal fiction" the idea that "an admonishment was in substantial compliance even though it was never given." And we quoted approvingly from a concurring opinion in an earlier, related case, Morales v. State : "It is the sense of [ Article 26.13(c) ] that defendants need not be admonished in any particular form of words, but only that the information be communicated to them in some effective way." That concurrence also construed "substantial compliance" as "the opposite of ‘formal compliance,’ not a synonym for ‘virtual, partial, or near compliance.’ "
See Cain v. State , 947 S.W.2d 262, 263 (Tex. Crim. App. 1997) (citing Morales v. State , 872 S.W.2d 753, 754–55 (Tex. Crim. App. 1994) ).
Id. at 264.
Id. at 263 n.3 (quoting Morales , 872 S.W.2d at 756 (Meyers, J., concurring)).
See Morales , 872 S.W.2d at 756 (Meyers, J., concurring).
That is precisely how we understand the phrase "substantially complies" in Article 38.41, Section 5. A certificate of analysis under Article 38.41 does not need to be phrased "in any particular form of words." But it must, at a bare minimum, "substantially" comply—that is, comply with all of the substantive requirements of— Article 38.41. As we have already observed, the mandatory, substantive requirements of an Article 38.41 certificate are laid out in Section 3. That is because Section 3 is the only provision of the statute that speaks to what a certificate of analysis "must contain."
See id. (Meyers, J., concurring).
See Franklin v. State , 579 S.W.3d 382, 385 (Tex. Crim. App. 2019) ("A statute must be read as a whole in determining the meaning of particular provisions, and it is presumed that the entire statute is intended to be effective.") (footnotes and citations omitted).
See Tex. Code Crim. Proc. art. 38.41, § 3.
Section 3 requires the certificate to include information that might arguably be considered personal to the laboratory analyst—her name, educational background, duties of employment, and so forth. But there is no express requirement in Section 3 that any of that information come from the analyst herself. Section 3 says that the information must be "certified under oath," but it does not require that oath to be given by any particular individual. It seems to us that any person or group of persons with knowledge of the analyst, laboratory, and forensic testing procedures and results could truthfully swear to any or all of the information that Section 3 requires.
Contra Dissenting Opinion at 489 (arguing that "nobody other than the testing analyst could provide a description of the tests used or the reliability thereof").
Does it matter if the affiant is someone who could not, over a Sixth Amendment confrontation objection, serve as a sponsoring witness for the laboratory results at trial? The answer is no. No matter who the affiant is, the defendant can always assert his right of confrontation, as long as he is diligent about it. If, after the State provides the defendant with a substantially compliant certificate of analysis, the defendant still wishes to confront his accuser in court, Article 38.41 allows him every opportunity to do so. All he has to do is assert his right of confrontation "no[ ] later than the 10th day before the trial begins" and it will be afforded to him; this is true even if the certificate of analysis tracks the statute word-for-word. But if the defendant does not promptly object to a timely filed and substantially compliant certificate, his confrontation objection will be forfeited. This does not diminish the defendant's right of confrontation in the slightest.
See Melendez-Diaz , 557 U.S. at 310–11, 129 S.Ct. 2527.
See id. at 326–27, 129 S.Ct. 2527.
C. The certificate in this case survives Williams's challenge.
Williams's specific contention is that the certificate of analysis in this case does not substantially comply with Article 38.41 because it fails to establish that the affiant, Dr. Adams, was the analyst who tested his blood. As we have just demonstrated, there is no requirement in the statute, express or otherwise, that the affiant be the analyst who tested the physical evidence. That is essentially a matter of form, discretionary with the offering party, not a matter of substance. The only way a certificate of analysis will fail to substantially comply with Article 38.41 is if it omits information that Section 3 says a certificate "must contain."
See Tex. Code Crim. Proc. art. 38.41, § 3.
The dissenting opinion misunderstands our holding. We do not hold that it is permissible for an affidavit to describe facts about "any person capable of analyzing" and omit facts pertinent to "the analyst" herself. We do not hold that "anyone else's background and abilities" may be listed in lieu of the analyst's background, training, and experience. We do not hold that the affidavit can list the duties of a non-analyst in lieu of the analyst's duties and still "substantially" comply with Article 38.41. We acknowledge that when Section 3 says "the analyst," it means "the analyst." Our holding is simply that, for Section 5, substantial-compliance purposes, the affiant need not be the same person as the analyst. It is still the case that, whoever the affiant is, she must provide information that is responsive to Section 3—including information pertinent to "the analyst."
Dissenting Opinion at 488.
Id. at 489.
See id.
Id. at 488 (emphasis in original).
To be sure, the State's certificate in this case is missing at least one item of information that Section 3 plainly requires: "a description of the analyst's educational background, training, and experience." Although the certificate provides Dr. Adams's educational background, training and experience, it does not establish that Dr. Adams was "the analyst" in this case, i.e. , the person who "conducted" the relevant "tests or procedures" on the physical evidence. Similarly, although the certificate lists the names of the various individuals performing tests upon Williams's blood sample, it does not describe the educational and professional qualifications of those individuals. That is information that, per Section 3, a certificate of analysis "must contain."
See id. § 5.
Id. § 3.
Had Williams apprised the trial judge that the State's certificate was missing information that Section 3 says a certificate "must contain," he might well have succeeded in his argument that this certificate does not substantially comply with Article 38.41. The problem is that Williams never once complained that the certificate of analysis in this case lacked one or more of the mandatory Section 3 requirements. We cannot fault the trial judge for overruling Williams's confrontation objection when, in response to the State's counter-argument that it had timely filed a certificate of analysis, Williams's only counter-counter-argument was that the certificate was noncompliant because the affiant was someone other than the analyst. For the reasons explained in this opinion, that response was meritless, and the trial judge rightly rejected it. Neither can we fault the court of appeals for affirming the trial judge when, once again, Williams's only argument on appeal was in the same vein—that the statute requires that the affiant be the analyst. For the very same reasons, that argument lacks merit, and the court of appeals rightly rejected it. Whatever other deficiencies the certificate of analysis in this case suffers from, it does not fail to "substantially compl[y]" with Article 38.41 for the reason that Williams has proposed.
IV. CONCLUSION
We reiterate that Article 38.41 does not in any way diminish a criminal defendant's core Sixth Amendment right "to confront those who bear testimony against him." The defendant can always defeat an Article 38.41 proffer—by asserting his Sixth-Amendment right of confrontation, in writing, "not later than the 10th day before the trial begins." If he acts within this time frame, there is no need for him to explain to the trial judge how or why he thinks the certificate fails to comply with Article 38.41 ; his constitutional right of confrontation simply trumps the statute. But if he tries to act outside this time frame, all bets are off.
See Melendez-Diaz , 557 U.S. at 309, 129 S.Ct. 2527 (quoting Crawford , 541 U.S. at 51, 124 S.Ct. 1354 ) (internal quotation marks omitted).
See Tex. Code Crim. Proc. art. 38.41, § 4.
See id. § 5.
See supra Part III-A.
We affirm the court of appeals' judgment.
Keller, P.J., filed a concurring opinion.
The Court correctly identifies the issue in this case as whether, in a certificate of analysis under Article 38.41, "someone other than the analyst who conducted the testing can serve as the affiant." The Court correctly answers this question "yes." I do not join the Court's opinion because it addresses issues that are not before us, are not briefed by the parties, and are not necessary to the resolution of the case.
Tex. Code Crim. Proc. Art. 38.41 (emphasis added).
First, the Court does not need to consider the meaning of "substantial compliance." Because the only defect alleged by Appellant is not a defect at all, what "substantial compliance" means has no bearing on the outcome of this case. The parties address only § 5 of the statute and not § 3. The Court's holding that "substantial compliance" requires satisfying all seven requirements set out in § 3 is not an issue addressed by the parties.
Second, the Court says that the certificate of analysis in this case is missing at least one item of information required by § 3. Again, Appellant has never claimed that the State failed to comply with § 3. Third, even if Appellant had complained in this Court about § 3, the Court concludes that Appellant forfeited that claim because he failed to raise it at trial. If he has forfeited a § 3 claim, we do not need to address the merits of a § 3 claim.
And finally, it is not clear to me that the Court's holding on the meaning of "substantial compliance" is correct. I cannot think of an instance when, under the Court's holding, "substantial" compliance would not also be full compliance. And, of course, we have no guidance from the parties on what "substantial compliance" means with respect to § 3.
I agree with the Court's holding that Article 38.41 does not require the affiant to be the analyst. I would not go further than that holding to comment on matters that are not before us. Such statements are dicta . I concur in the Court's judgment.
See State v. Ross , 573 S.W.3d 817, 827 & n.59 (Tex. Crim. App. 2019).
Majority Op. at 485.
DISSENTING OPINION
WALKER, J., filed a dissenting opinion.
Today, this Court holds that a certificate of analysis that is missing information required by Article 38.41 may nevertheless be in substantial compliance. Moreover, the majority maintains that even if a certificate of analysis is missing mandatory information, the defendant is still required to exercise or forfeit his constitutional rights in accordance with Article 38.41's pre-trial timeline. This position is incompatible with the language and existence of § 3 of the statute. Accordingly, I respectfully dissent.
The specific question in this case is whether this certificate of analysis substantially complied with Article 38.41. Because it omits several pieces of information required under § 3, it must fail to substantially comply. Section 3 of Article 38.41 states that a certificate of analysis "must contain" the following:
(1) the names of the analyst and the laboratory employing the analyst;
(2) a statement that the laboratory employing the analyst is accredited by a nationally recognized board or association that accredits crime laboratories;
(3) a description of the analyst's educational background, training, and experience;
(4) a statement that the analyst's duties of employment included the analysis of physical evidence for one or more law enforcement agencies;
(5) a description of the tests or procedures conducted by the analyst;
(6) a statement that the tests or procedures used were reliable and approved by the laboratory employing the analyst; and
(7) the results of the analysis.1
A plain, reasonable reading of the statute makes it clear that the information included in the affidavit is to be about a certain analyst. Every time the word analyst is used it is preceded by the word the . The statute never once says an analyst . Use of the analyst instead of an analyst means the statute is only concerned with a particular, specific analyst—not just any person capable of analyzing. Specifically, the use of the analyst appears to be exclusively regarding the testing analyst. The wording of subsection (5) is particularly probative as to the meaning of the statute. Subsection (5) requires that the certificate of analysis must contain a description of the tests or procedures conducted by the analyst. Obviously, the analyst in subsection (5) is the analyst who conducted the tests or procedures. So it would follow that, since every time the word analyst is used in § 3 it is preceded by the word the , the entirety of § 3 is referring to the analyst who performed the tests or procedures.
The subsections that unequivocally require the information to be from or about the testing analyst are (3)-(6). Starting with subsection (3): why would the legislature write that the certificate of analysis "must contain" the background, experience, and schooling of anyone other than the testing analyst? Why would anyone else matter? There is no question that if the information of some analyst from some other lab was included in the certificate, it would not substantially comply. It is inconsequential, for example, to the results that some extraneous analyst employed over at Bayer, went to a nice school, and has worked for eight years. A description of a random analyst's educational and work history is no less informative or relevant than that of a reviewing or supervising analyst that just so happens to be employed at the lab where the test was actually conducted. I cannot fathom a scenario where the Legislature would be adamant that an affidavit include whether and for how long someone went to school and worked in this field unless it is the person whose intelligence and experience actually come into play. Accordingly, the only person's background or ability that matters to the results is that of the testing analyst. It is untenable to hold that including anyone else's background or abilities could even come close to complying with this subsection.
Now, for subsection (4), I cannot think of a single reason why a certificate of analysis would need to contain a statement that it is one of the analyst's duties to analyze physical evidence unless the analyst happened to analyze some of the physical evidence in that case. It is unclear why anybody would need to ensure that someone merely reviewing the results has an "analyzes physical evidence" bullet point in their job description. In theory, reviewing analysts just need to know how to read and understand what the results mean. It truly makes no difference if, on occasion, they are tasked with analyzing physical evidence unrelated to the evidence contained in the certificate. The defendant is only interested in the fact that the one who did analyze the physical evidence was hired to do so—and that it was not the janitor or some other individual employed at the lab that decided to try their hand at forensic analysis that day. Again, it is inconsistent with the purpose of this statute to suggest that a certificate of analysis could be in compliance with this statute by including information from any person other than the testing analyst.
The purpose of this statute appears to be to provide a mechanism that would allow a defendant to effectively agree to allow an analyst's report to be automatically admitted in evidence if the defendant is notified of the State's intention to do so within a specified time limit, the notice contains all seven of the statute's requirements, and the defendant does not object to the admission of the report within a statutorily specified period of time. The underlying purpose seems to relieve laboratory analysts from the task of going to court when the defendant is satisfied as to what the analyst's direct-examination testimony would consist of and that there would be no practical reason for cross-examination. The only way these purposes can be met is to read the statute to require that subsections (3)–(6) must relate to the analyst that performed the lab tests, and again, reading the statute as a whole, I would hold that the statute does just that and is unambiguous in that respect. Lastly, for subsections (5) and (6), nobody other than the testing analyst could provide a description of the tests used or the reliability thereof. If a reviewing or supervising analyst provides this information it would be purely general or completely speculative, which is not what "must [be] contained." This part of the statute is about the specific tests that were used by the analyst and whether they were, specific to the results contained in the certificate of analysis, actually reliable. Including a description on the tests that an analyst generally conducts does not get us anywhere. Moreover, procedures that are generally reliable are not informative to the actual reliability of the proffered results. The purpose of this is not to make sure that the tests generally used are on par with the scientific community and that the lab is generally producing sound results. The purpose is to provide a descriptive account of how the tests were actually done by the analyst and a statement regarding whether the results were obtained reliably, through accepted laboratory standards. Stating that results are generally achieved by a reliable and approved method does not serve any purpose in this scenario.
The certificate of analysis filed in the present case is missing at least four of the seven requirements of § 3. The front page of the certificate of analysis states that Dr. Adams is familiar with the general procedures of the lab, that her duties include the analysis of toxicological evidence, and that her curriculum vitae is attached. She merely reviewed the results and was not present for any of the actual testing. Nowhere does it have any background, experience, or educational information about any of the analysts who were involved in the actual procedures. Nowhere does it list that it was the duty of any of the testing analysts to analyze physical evidence. Nowhere does it describe the tests that were actually performed. Nowhere does it state that what was actually performed was reliable or approved. All that was included was a general, boilerplate statement that the procedures and tests that were performed were reliable and approved by the lab. The most that can be said of this certificate of analysis is that it spelled out the results and stated that the lab was accredited. It did additionally include the testing analyst's name, but you had to search deep in the results for it, and it did not state that she was even employed at the lab.
The certificate of analysis that was filed in this case does not meet the minimum threshold of substantial compliance. As the majority explains, a certificate of analysis "must, at a bare minimum , ‘substantially’ comply—that is, comply with all of the substantive requirements of — Article 38.41. As we have already observed, the mandatory, substantive requirements of an Article 38.41 certificate are laid out in Section 3."2 Thus if, a certificate of analysis is missing any of the seven requirements it cannot be said to substantially comply. The majority even concedes that omitting information that must be contained under § 3 is the one way to guarantee that the certificate of analysis will fail to substantially comply.
Id. at 486.
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A certificate of analysis, such as this one, that does not substantially comply with the statute cannot trigger a timer for a defendant to forfeit his constitutional rights. This is true even if it is timely filed. Nevertheless, the majority essentially holds that because something was timely filed that mostly resembled a compliant certificate of analysis, the defendant was on notice to object or forfeit his rights before trial. The majority's position would essentially permit any person—who maybe just so happened to glance at the forensic results—to scribble their personal details on any piece of paper, get it notarized, and staple it to some forensic results and thereafter require the defendant to make a decision whether he wants to forfeit his constitutional rights. Why even require anything in § 3 at all if a defendant is still going to be required to make a pre-trial demand for the analyst's live testimony simply because something partially on par with the mandatory requirements of § 3 was filed alongside forensic results? Why not just write a statute where only the results need to be filed? It is inconceivable to hold a defendant accountable to an invalid affidavit, regardless of the fact that it was filed on time. That flies in the face of the entire existence of § 3.
The certificate of analysis is required to include at least seven pieces of information. In this case, it—at best— included three. There is no way this certificate of analysis can comply with Article 38.41 if it includes less than half of the information required. A certificate of analysis that fails to substantially comply cannot trigger the statute's timer and require the defendant to exercise or forfeit his constitutional rights before trial. That completely ignores the presence and purpose of § 3 in the statute. Therefore, in my opinion, Williams was under no obligation to waive his objection before trial. His objection at trial was valid and should not have been overruled. Respectfully, I dissent.
Keller, P.J., filed a concurring opinion.
Walker, J., filed a dissenting opinion.
Keel, J., concurred.