Williams v. State

585 S.W.3d 478

Andrew Lee WILLIAMS, Appellant

v.The STATE of Texas

NO. PD-1199-17

Court of Criminal Appeals of Texas.

Delivered: October 9, 2019

OPINION

Keasler, J., delivered the opinion of the Court, in which Hervey, Richardson, Yeary, Newell, and Slaughter, JJ., joined.

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,¹ 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.

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.²

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."³ That being the case, "appellant was required to file a written objection at least ten days before the beginning of trial."⁴ Since counsel failed to object pre-trial, the court of appeals determined that Williams had failed to preserve his confrontation complaint.⁵

The court of appeals expressly decided that this certificate of analysis "substantially complies with the requirements of [A]rticle 38.41."⁶ The thrust of Williams's argument is that this certificate does not "substantially compl[y]" with Article 38.41,⁷ and the thrust of the State's argument is that it does.⁸ There is therefore no basis for the suggestion that this issue was not adequately briefed by the parties or is not properly before us.⁹ 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.¹⁰

II. LAW

The Sixth Amendment Confrontation Clause provides the accused in a criminal prosecution the right to be confronted with the witnesses against him.¹¹ 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.¹² Forensic laboratory reports created solely for an evidentiary purpose, made in aid of a police investigation, are considered testimonial.¹³ 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.

But the State may, without offending the Confrontation Clause, adopt "procedural rules" governing confrontation-based objections.¹⁴ For example, the Constitution permits a State to enact a "notice-and-demand" statute.¹⁵ "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."¹⁶ 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.¹⁷

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."¹⁸ 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.¹⁹

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."²⁰ 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."²¹

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."²² A form affidavit, worded in the first person, is provided: "My name is .... I am employed by .... My educational background is ...,"²³ 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.

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."²⁴ 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.²⁵ 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...