This proposed change in the law gets my vote for the one most likely to save unnecessary expenditure of state funds (but only if the right of a party to summon a witness is not abused). One wonders why this idea has not surfaced long before now. Of course, where the parties agree to stipulate to the results of analysis, this change is already unnecessary, but we seem to have little success in getting stipulations although there is rarely a genuine dispute as to the authenticity or analysis.

The current length of delay in obtaining testing of controlled substances needs to be addressed in some way this session. The Waco DPS lab rarely gets an analysis done within 90 days of the arrest. I am sure most of the other labs are as busy or worse. This results in release of persons under art. 17.151 and either continuation orders or discharge of bonds under art. 22.13 (4), and of course the problems associated with delay in the trial of cases. Maybe this bill would help to alleviate some of these problems.

If one got a certificate of analysis into evidence would certificates as to the chain of custody really also be required? Since the admisssion of the analysis results is not tied to the authenticity proof, I am not sure both would still be necessary (although I guess the jury would like assurance that the right dope was analyzed).

Does this type of law engender any "confrontation clause" problems?

I am surprised this wasn't addressed sooner.
Having lab reports that can testify for themselves would alleviate a lot of planning for criminalists to come and testify. Often I call a month before at the least and still wind up getting someone else (another chemist, supervisor) anyway. Plus I've never had more than two questions asked the chemist by the defense. We all can read, why not read it ourselves?

This will spare Tyler criminalists the 1 1/2 hour trip to Crockett to testify for 15 minutes.

With regards to confrontation clause, isn't this synomous to a self-proving medical record?

I have worked on this bill for over one year and Shannon Edmonds has done a lot of work the last several months lining up sponsors and dealing with the major players. I need the assistance of all prosectors to contact your local representatnives and senators to ask them to be co-sponsors. Rep Debbie Riddle in the House and Sen. Teel Bivins are welcoming co-sponsors. Nineteen other states have similar statutes.

Additionally, the DPS fiscal note on this bill shows a projected savings of $165,000 per year for DPS chemists! The bill would allow a sworn certificate of analysis to be filed in advance of trial without the need for the analyst to appear and testify unless subpoenaed by the defense.

The House Bill never got a hearing, but the companion SB1129 passed the Senate and will be heard by the House Crim. Jurisp. committee on Tuesday (05/13). We need to make sure it gets a favorable recommendation.

The companion bill, SB 1129, passed the House on May 28 and has been sent to the Governor for signature!

Under new CCP art. 38.41, a certificate of analysis affidavit by a chemist will be admissible without the presence of the chemist unless a written objection is filed by the defense within 10 days of the trial date. Under new CCP art. 38.42, a chain of custody affidavit will now be admissible without the presence of the witness.

Shannon Edmonds guided me and this bill through the legislative process to get it passed. Thank you, Shannon.

A real win for attorneys and criminalists alike!

Deener v. State

(Tex.App. Dist.5 12/04/2006)
Jim Moseley Justice
05-05-00703-CR

AFFIRMED
OPINION

Before Justices Morris, Moseley, and Richter.

The Texas Code of Criminal Procedure generally provides that certificates of analysis of physical evidence and chain of custody affidavits are admissible without the declarant appearing in court if the documents are filed and served on the opponent more than twenty days before trial begins and the opponent does not file a written objection by the tenth day before trial begins. Tex. Code Crim. Proc. Ann. arts. 38.41 (certificate of analysis of physical evidence); 38.42 (chain of custody affidavit) (Vernon 2005). The relevant statutes were enacted shortly before the United States Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004). In this case, we address whether this statutory procedure violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. Because we conclude it does not, and because we also reject appellant Curtis Deener's other issue on appeal, we affirm.

Background

Kaufman police officer Jeremy Mack stopped Deener for a faulty brake light and arrested him on an outstanding warrant for parole violations. During book-in at the police station, Mack asked Deener to empty his pockets for an inventory search. Deener removed a pack of cigarettes from his pocket and placed it on the table. Mack testified he looked inside the pack and found an off-white rock-like substance he believed to be crack cocaine. Deener was charged with illegal possession of a controlled substance (cocaine) in an amount less than one gram. Pursuant to articles 38.41 and 38.42 of the code of criminal procedure, the State timely filed and served notices of chain of custody affidavits and of a certificate of analysis relating to the alleged contraband. The chain of custody affidavits traced the custody of the cigarette pack and its contents from when it was retrieved by the police to when it was delivered to the Texas Department of Public Safety (DPS) Garland Crime Lab. The certificate of analysis, signed by an employee of the DPS Crime Lab in Garland, contained the information required by article 38.41, section 3. Tex. Code Crim. Proc. Ann. art. 38.41, � 3. It stated that the substance weighed 0.07 grams and contained cocaine. Deener did not file a written objection to the affidavits or the certificate of analysis. See id. arts. 38.41, � 4; 38.42, � 4 (certificate or affidavit not admissible if opponent files written objection not later than tenth day before trial begins).

Deener's first trial began February 28, 2005. During this trial the chain of custody affidavits and certificate of analysis were admitted without objection. The jury, however, was unable to reach a verdict, and the trial court declared a mistrial.

At the second trial two weeks later, Mack was again the only witness for the State. However, when the State again offered the chain of custody affidavits and the certificate of analysis, Deener objected to the documents as hearsay and as violations of his Sixth Amendment right of confrontation, as those rights were described in Crawford. The trial court overruled the objections and admitted the documents. Mack read the results of the certificate of analysis to the jury and stated the results corroborated his belief that the substance was cocaine. Deener testified the substance at issue was not his and must have been planted by police. He stated that after he placed the cigarette pack on the table, Mack twice left the room. The second time Mack returned, he was holding something in his hand and said it was cocaine he found in the cigarette pack. Deener told Mack that was not true because the cigarette pack had been on the table the entire time. The jury convicted Deener at the second trial. Deener pled true to two enhancement paragraphs. The jury found the enhancement paragraphs true and assessed Deener's punishment at fourteen years' imprisonment.

Discussion

A. Confrontation Clause

The Confrontation Clause 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. This procedural guarantee is applicable in both federal and state prosecutions, Pointer v. Texas, 380 U.S. 400, 406 (1965), and bars the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable to testify and the defendant had a prior opportunity to cross- examine him. Crawford, 541 U.S. at 59. In his first issue, Deener argues that Crawford, which was decided some six months after the legislature enacted articles 38.41 and 38.42, makes clear that procedures set forth in those statutes violate the Confrontation Clause set forth in the Sixth Amendment to the United States Constitution. Deener does not argue the State failed to comply with the statutory procedures. Moreover, we note Deener does not argue that he, in fact, timely objected to the State's use of the documents in the time and manner prescribed by the statutes or that articles 38.41 and 38.42 place an unreasonable burden on his ability to exercise his rights under the Confrontation Clause.

Deener argues that admitting the documents pursuant to articles 38.41 and 38.42 violated the Sixth Amendment and Crawford because the statutes do not require the showings mandated by Crawford and the Sixth Amendment-unavailability of the witnesses and that the defendant had a prior opportunity to cross-examine them. Further, Deener argues that the State failed to make these showings at trial. The State does not dispute these points; the statutes clearly do not require the showings mandated by Crawford and the Sixth Amendment, and the State did not show the witnesses were unavailable and that Deener had a prior opportunity to cross-examine them. Instead, the State makes two arguments. First, the State asserts the Sixth Amendment (and thus Crawford) does not apply because the chain of custody affidavits and the certificate of analysis are not "testimonial" in nature. The State argues that Crawford allows lower courts to define "testimonial" according to circumstances that could not be anticipated by the Court in Crawford, and that articles 38.41 and 38.42 effectuate the right to confront witnesses because the statutory scheme provides "a means to force the State to provide the pertinent issues by live testimony or not at all."

We recognize Crawford declined to provide a comprehensive definition of "testimonial." However, it noted three formulations of "core" testimonial evidence: (1) "ex parte in-court testimony or its functional equivalent," such as affidavits, custodial examinations, prior testimony not subject to cross-examination, or "similar pretrial statements that declarants would reasonably expect to be used prosecutorially"; (2) "extra-judicial statements" of the same nature "contained in formalized testimonial materials"; and (3) "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." Crawford, 541 U.S. at 51-52; see Wall v. State, 184 S.W.3d 730, 736 (Tex. Crim. App. 2006). We conclude the affidavits and certificate at issue fall squarely within all three of these categories and are thus "testimonial" within the meaning of the analysis set forth in Crawford.

The State's second argument is that, even if the chain of custody affidavits and certificate of analysis are testimonial in nature, Deener forfeited his right of confrontation regarding them when he failed to file a written objection to their use not later than the tenth day before his trial began. See Tex. Code Crim. Proc. Ann. arts. 38.41, � 4; 38.42, � 4. The record shows the affidavits and certificate were filed more than twenty days before the first trial began and were still on file when the second trial began. Further, it is undisputed that Deener never-before the first or the second trial-filed written objections to the use of the documents as required by the statutes. Deener's position is that articles 38.41 and 38.42, enacted prior to the Crawford decision, cannot "trump the Constitution of the United States." He asserts that under the classification used in Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), *fn1 confrontation rights are "waivable- only" rights; thus he argues a defendant cannot waive his right to confront witnesses unless he does so expressly on the record. He contends his failure to object to the affidavits and certificate before trial-pursuant to the statutes-was not an express waiver of his right of confrontation.

It is axiomatic that a statute cannot contravene the United States Constitution. However, we disagree that Deener's rights under the Confrontation Clause are "waivable only," and thus not subject to the requirement that he object in order to protect them.

Marin did not involve the right of confrontation; but it was a watershed decision in the law of preservation of error. Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002). It recognized three types of rights in our system and different means of preserving those rights. Marin, 851 S.W.2d at 279. "Systemic (or absolute) requirements," such as jurisdiction of the person and subject matter, are laws the system must implement even if the parties wish otherwise. Mendez v. State, 138 S.W.3d 334, 340-41 (Tex. Crim. App. 2004). Waivable-only rights are those rights that must be recognized unless affirmatively waived on the record. Id. They include the right to assistance of counsel and to a jury trial. See Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). Errors regarding systemic requirements or waivable-only rights may be raised for the first time on appeal. Mendez, 138 S.W.3d at 342.

Most rights, however, fall into the third category-forfeitable rights. These are typical evidentiary and procedural rules that are implemented only if requested. See id., at 340-41; Marin, 851 S.W.2d at 278. They must be preserved by a timely and specific objection in the trial court or they are forfeited. Tex. R. App. P. 33.1(a); Mendez, 138 S.W.3d at 341-42.

Deener does not cite any authority for the proposition that the right of confrontation is a waivable-only right. Most rights, even constitutional rights, are forfeited if not asserted: All but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong. Many constitutional rights fall into this category. When we say "that even constitutional guarantees can be waived by failure to object properly at trial," we mean that some, not all, constitutional rights may be forfeited.

Marin, 851 S.W.2d at 279 (quoting Gibson v. State, 516 S.W.2d 406, 409 (Tex. Crim. App. 1974)).

The State in this case followed the mandated procedure of articles 38.41 and 38.42 solely to have the certificate and affidavits admitted into evidence. Failure to object in a timely and specific manner forfeits complaints about the admissibility of evidence, "even though the error may concern a constitutional right of the defendant." Saldano, 70 S.W.3d at 889 (discussing failure to object to evidence violating defendant's rights under Equal Protection Clause). We conclude the right of confrontation is a forfeitable right-not a waivable-only right-and must be preserved by a timely and specific objection at trial. See Tex. R. App. P. 33.1. This was clearly the case before Crawford. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (hearsay objection at trial did not preserve error on Confrontation Clause grounds); Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991). And this remains the case after Crawford, as there is "nothing in Crawford that would excuse appellant for failing to make a confrontation claim at trial." Bunton v. State, 136 S.W.3d 355, 369 (Tex. App.-Austin 2004, pet. ref'd) ("Crawford makes clear that the federal constitutional right to confront one's accusers is neither new nor novel."); see also Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (stating "objection on hearsay does not preserve error on Confrontation Clause grounds"). *fn2

Here, the certificate of analysis and the chain of custody affidavits were filed well in advance of Deener's second trial. Despite this advance notice that the State intended to rely on these documents at trial, Deener never filed a written objection to their use. Rather, Deener waited until the State offered the affidavits and certificate of analysis at the second trial to object on Crawford grounds. Under articles 38.41 and 38.42, Deener's objection was untimely. We conclude Deener has not shown that articles 38.41 and 38.42 violate his constitutional right to confront the witnesses against him under Crawford. Because Deener did not file a written objection to the use of the affidavits and certificate of analysis at least ten days before trial, his objection at trial was not timely and he forfeited his right of confrontation. We resolve Deener's first issue against him.

...


Conclusion

Because we reject both of Deener's issues, we affirm the trial court's judgment.

Publish -- Tex. R. App. P. 47.2

Opinion Footnotes

*fn1 Overruled in part on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) and by Matchett v. State, 941 S.W.2d 922, 928 (Tex. Crim. App. 1996).

*fn2 We also note the Louisiana Supreme Court has concluded a similar statute does not infringe on a defendant's constitutional right of confrontation under Crawford. See State v. Cunningham, 903 So.2d 1110, 1121 (La. 2005) (statute allowing court to receive certificate of analysis as prima facie proof if filed before trial and opposing party does not subpoena person performing the analysis at least five days before trial "does not infringe upon defendant's constitutional right to confrontation").