Burch, Benjamin Knighten

to the trial court We remand property. consistent with proceedings further opinion. BURCH,

Benjamin Knighten Appellant Texas. STATE PD-0943-12.

No. of Criminal Texas.

June

the Confrontation Clause of the United States was Constitution violated by the admission drug analysis of a when only the (not reviewing analyst testing analyst) testified. We hold that there was such an error and affirm the of the Fifth Court of Appeals to remand this case for a new trial. appellant

The was arrested a Dallas police officer who saw him and a compan- ion drugs with paraphernalia. He was indicted possession for with intent to deliv- substance, er a controlled cocaine.1 At the State offered into evidence a one-page lab The report. relevant find- ings only, stated “The contents of four green ziplock bags used for analysis. was hard, white material contained co- caine. The amount cocaine found was (62%). grams 1.38 The total weight of the material, including adulterants or dilutants was 2.2 grams.” signed by Pinckard, Jennifer analyst, and Monica Lopez, the reviewer. Lopez,

The State called but not Pinck- ard, to testify. Lopez testified that she supervisor was a for Southwestern In- (SWIFS), stitution of Sciences Forensic laboratory that is of the Dal- Baskett, Dallas, TX, Robert T. Ap- County las Office and the police D.A.’s pellant. department. Lopez explained that Pinck- Yeatts, Shelly O’Brien Assistant District ard had all the tests in this Dallas, McMinn, Attorney, Lisa C. State’s case, particular Pinckard no longer but Austin, TX, Attorney, for State. No worked for SWIFS. evidence was of- WOMACK, J., fered why delivered as to Pinckard had left MEYERS, PRICE, the Court in which that, laboratory. Lopez said as the re- JOHNSON, ALCALA, COCHRAN viewer, she was ensure that the lab’s JJ., joined. policies were procedures followed. Al- though agreed she that she granted Petition

We the State’s for Dis- cretionary “basically Review everything to determine whether double-checked See Tex. Health Safety 481.112. § Code & (1) be cross-exam- done,” clarify what that takes stand to she did not There was that she ined or no indication

meant. being performed actually saw tests (2) the defendant is unavailable and appellant ob- them. The participated prior opportunity to cross-examine had a of his Sixth alleging violation jected, him.5 witnesses right Amendment to confront prior The to cross-ex opportunity The him. trial court overruled against necessary and person amine in both a a the un- report, and admitted the objection requirement the admission dispositive evidence, Lopez’s and derlying physical testimonial statements under the Con of testimony that the was cocaine. substance frontation Clause.6 The warned Court of held that Appeals The Fifth Court no shall that “under circumstances” by admitting drug court erred trial deprived “seeing be of the wit defendant Lopez’s testimony and analysis face, subjecting ... him ness face to and finding After evidence cocaine. of The to the ordeal cross-examination.”7 harmless,2 of was not the Court the error real involved in very difficulties and costs a new reversed and remanded for making witnesses at trial cannot available no other admis- trial because State had categorical requirement. The trump identity evidence of sible substance’s does exceptions, not list and Constitution a Petition for weight.3 State filed Court) (reasoned judiciary so Review, Discretionary granted. we which create should not them.8 While the contours of what exact II by testimonial continue to be defined the Confrontation Clause Under courts, such are formal statements States the Sixth Amendment of the United words, testimony. similar to trial In other Constitution, made to the states applicable are those testimonial statements “that Amendment,4 “in the Fourteenth through under were made circumstances which the accused shall prosecutions, all criminal objective reasonably lead an witness would ... enjoy right to be confronted would to believe the statement be against In the witnesses him.” Crawford at available for use a later trial.”9 Washington, the inter Supreme v. principles applied mean evi These have been this to that “testimonial” preted reports. unless the forensic Court has dence is inadmissible at trial explicitly analyst’s who made the testimonial state held that an certifica- with a prepared ment either: tion connection criminal Id., 57, (internal 44.2(a). quotes at 124 See P. S.Ct. 1354 Tex.R.App. omitted). 05-10-01389-CR, State, v. No. 2012 3. Burch 2226456, 54, Tex.App. 2012 LEXIS 4814 124 also Giles WL at S.Ct. 1354. See v. 18, 2012). 353, 375, 2678, California, (Tex.App.-Dallas,June 554 U.S. 128 S.Ct. ("It (2008) 171 L.Ed.2d 488 is not the role of Texas, 400, 403, extrapolate 85 courts to from the words 4. See Pointer 380 U.S. it, 1065, (1965). Amendment values behind 13 L.Ed.2d 923 Sixth to the S.Ct. guarantees enforce then to 54, (in views) 36, 1354, they extent serve 158 the courts' those 5. 541 U.S. values.”) underlying L.Ed.2d 177 Crawford, 124 S.Ct. 1354. S.Ct. 1354. U.S. at investigation prosecution (specifically, discretion, tion or the testifying reviewer cocaine) report identifying substance as could verify that the results were prop- is testimonial erly generated. Further, and cannot be admitted with- the court ex- satisfying out requirements of the plained that the defendant had a right to Confrontation Clause.10 reports question why These are the testing analyst was on formal and created for the purpose unpaid sole leave.15 establishing proving a highly relevant prosecution.11 However,

fact to a criminal Ill exactly the issue of required who is This case is Bull- controlled testify in connection with such a has coming. There is no indication that the fully not been resolved. appellant had a pre-trial opportunity to Bullcoming v. New Mexico cross-examine prose- analyst was a the who tested the for aggravated cution DWI in cocaine. Although which the Lopez, the testifying n witness, State did not call the supervisor who tested was a who “reviewed” sample defendant’s blood the original process, for alcohol. we say, cannot on this Instead, record, original because the analyst was that she personal had knowledge leave, unpaid on called another the tests were done correctly or that analyst familiar with the laboratory’s test- tester did not fabricate the results. ing procedures.12 Supreme She could say only Court that the original analyst that, held report report because the wrote a claiming the testi- to have conformed monial statement of per- who with the required safeguards. Conse tests, formed the it could quently, not be offered cross-examining her did not satis into evidence through fy testimony appellant’s of a constitutional rights.16 different, “surrogate” say witness.13 While we cannot anything would have come from a cross-examination of the decision, reaching In this the Supreme original analyst, the law does not “tolerate explicitly rejected Court the lower court’s dispensing with simply confrontation be reasoning that the analyst only inter- cause the court believes that questioning preting machine-generated data and that one witness about another’s testimonial the testimonial statements were therefore provides statements enough a fair opportu Rather, those of the machine. the original nity for cross-examination.”17 analyst needed to be cross-examined so that the defendant could explore par- “the argues The State that this case is distin- ticular testing process test and guishable he em- from Bullcoming Lopez because ployed ... any lapses or actually [and] lies on the signed that was admit- certifying analyst’s part.”14 Even if the ted into evidence. This is irrelevant. question results in involved no interpréta- having testimony Without of the ana- Massachusetts, 557 U.S. 15. Ibid. 10. Melendez-Diaz 305, 311, 2527, 129 S.Ct. 174 L.Ed.2d 314 (2009). Melendez-Diaz, 320, 16. 557 U.S. at 129 S.Ct. ("Like expert generally, 2527 witnesses an id., 310, 11. See at 129 S.Ct. 2527. analyst’s proper training deficiency lack of — -, be disclosed in cross-exami- U.S. nation."). L.Ed.2d 610 at 2710. Bullcoming, at S.Ct. tests, handed down Appeals the Fifth actually Court lyst who execution, Consequently, who their case. least one observed decision types way explore has no defendant have the did not Court of missteps the Confronta- corruption benefit of the most recent designed protect tion Clause was de- precedent. splintered Williams was a not, instance, It would for solve against. outcome, and not cision an in which laboratory if had of its problem a all This an vote. opinion, majority received Rather, report. analysts sign every to discern. impact made its full hard being person- needs to have called However, plurality’s rationales none of facts in knowledge al of the issue—the affect in this the result case. tests and their execution.18 specific Williams, In taken from samples semen parts of Jus- emphasizes also to an rape vagina victim’s were sent Bullcoming Sotomayor’s tice concurrence testing. laboratory DNA for highlighted in which she limitations from the profile The lab created a DNA majority’s Specifically, Jus- opinion. profile police. semen sent that back to Sotomayor Bullcoming tice clarified that At tes- expert prosecution person was “not a case in which testi- samples profile tified that the created from reviewer, or fying supervisor, is a someone vagina in the victim’s matched the defen- limited, personal, a else with albeit connec- generated by police the profile dant’s DNA the at The tion to scientific test issue.”19 that laboratory. argued The defendant argues portion that of Justice State testify the could not that the DNA Sotomayor’s opinion expert indicates a case that the profile as this have been dif- created from within might such decided was semen However, by the ferently Supreme Court. only report gen- victim because she read only justice’s opinion, this is one which independent erated He fur- by the lab.22 have law if it weight does not the of even ther that his Amendment objected Sixth chang- indicate the Court’s Supreme rights were violated when he was unable ing especially given course. This is true analyst cross-examine the who created that the State that such an out- concedes into profile, though it not offered even was directly majori- is in with come conflict evidence.23 unequivocal that “the ac- ty’s statement judgment Justice Alito delivered the right is confronted cused’s to be with opinion garnered an that court and certification, who analyst made the unless plurality, four In the view of the votes.24 and the unavailable petitioner’s rights not violated were pretrial, accused had an opportunity, (that because the out-of-court statement particular cross-examine that scientist.”20 came within profile DNA from semen IV victim) not prove was offered to Instead, it truth the matter The down asserted. Court handed merely explain same that was alluded to in order to day Williams Illinois21 the Id., Id., at 2715. 22. at 2229-30. 18. Id., at 2722. Id., at 2231. at 2710. - U.S. -, L.Ed.2d independent of the witness’s con- asserts that we

the basis should follow its (that reasoning it is the because “narrowest” peti- matched the profile clusions ground for the reached.28 Jus- DNA).25 Alternatively, as a sec- tioner’s tice Thomas disagreed Justice Alito decision, for the ond and basis argued report that the was offered report Alito that the was not Justice stated the truth of the matter it asserted. None- created testimonial because it was before theless, Justice Thomas reasoned that specific Consequent- was a suspect. there there was no Sixth Amendment violation inherently was ly, inculpatory it report because the was not formal or sol- against petitioner.26 for use created emn enough to be testimonial.29 helps Neither of these rationales While it that the report is true in this this case. statement at oath, affirmation, ease does not contain here was into evidence for issue offered certificate as desired Justice Thom- report The SWIFS was submitted truth. as, we find this distinction irrelevant. The only as the evidence of amount and sidestep State cannot' the Sixth Amend- makeup possessed by of the substance merely by choosing ment less formal lan- the cocaine. Without such evi appellant, guage. The report asserted that the sub- dence, appellant it is doubtful cocaine, stance signed by was have been at all. could convicted Justice (presum- who the tests equally inappli Alito’s second rationale is ably certify veracity report’s of the case, to this is unlike cable which Williams contents), and was signed again by then generated the lab reviewer. because after rational conclusion that this is a appellant and with formal statement created was arrested preparation for trial and is testimonial in purpose proving guilt. sole nature. We are not convinced Justice Alito’s stressed that absence of an oath the word is “certify” was not a from departure Williams other enough change of a distinction to the anal- because, Bullcoming such cases as in ysis from Bullcoming. that of Even Jus- Williams, report the actual was not of- Thomas, tice despite emphasis on the into in fered evidence while the other cases ceremonial, stated that “the Confrontation Again, it in line with was.27 more Bull- attempts Clause reaches bad-faith evade coming, report the at issue here was of- the process.”30 formalized That pre- and evidence. fered admitted into Conse- cisely our case. The State can not avoid a quently, merely it was not mentioned as an straightforward Bullcoming application of underlying expert’s opinion: basis of the by adding signature the a reviewer with report the itself was evidence. primary personal knowledge omitting no and more Although no other members of the persuad- formalized We are not language. joined ed. opinion, Justice Thomas’s the Id., position at 2228. of the Court viewed as that be in taken those Members who concurred Ibid. ”). judgments grounds.' the on the narrowest unnecessary, Because it is we do not address at 2233. whether or not the State’s contention is cor- rect. States, 188, Marks v. 28. See United U.S. (1977) 97 S.Ct. 51 L.Ed.2d 260 Williams, at 2255-56. ("When fragmented a Court decides a case single explaining no and rationale result enjoys justices, holding the assent of five 'the y case, sis,” “re- in this the witness did but analyst’s analysis.2 In testing view” the correct The lower court was laboratory analyst a tes- Bullcoming, state closely the facts Bullcom- case mirrors testing performed by an- tified about attempted to submit testi- The State ing. Despite in other the same lab. appellant pos- evidence that monial being laboratory’s testing with the familiar giving appellant cocaine without sessed witness procedures, participat- neither cross-examine the ana- opportunity ed nor observed test on Bullcom- and who tested the cocaine made lyst ing’s sample, report and lab was blood Although affirmation of its contents. a business As re- admitted as record.3 reviewing did call State sult, Bull- Court concluded have personal not that witness did coming’s rights violat- confrontation were being knowledge of the testimonial facts ed. she not an Consequently, submitted. surrogate for cross- appropriate highlights testimony Lopez’s State Ap- affirm the Court of

examination. We support Lopez’s its claim connec- decision to reverse remand to peals’ drug testing greater tion with the court proceedings. the trial for further Bullcoming. testifying than the witness in testing, Lo- performed After Pinkard KEASLER, J., a concurring filed pez reviewed the to ensure that KELLER, P.J., joined. in which policies procedures fol- lab’s were HERVEY, J., concurring opinion filed a “dou- lowed. She further stated that she J., JOHNSON, joined. everything in which ble checked that was done” and signed report as the “reviewer.” The KELLER, P.J., concurred. brief, signer, in its asserts “As KEASLER, J., a concurring filed [Lopez] certified the results and correct- P.J., KELLER, opinion, which the report.”4 ness the content of While HERVEY, J., joined. Lopez’s testimony may ideally be de- below, For the two reasons described scriptive exactly about what double-check- judgment. entails, the Court’s join ing analyst’s work the fact another some review that she level of First, misinterprets majority factual between illustrates the differences argument by characterizing State’s present Bullcoming. case and Bullcoming v. New claims Mexico1 that acknowledges Lopez State did distinguishable present from the ease sole- stand over Pinkard’s and observe shoulder witness, testifying ly because Monica the test. performing her But as (the Lopez testing Pinkard’s an- —Jennifer asserts, Bullcoming necessarily does not alyst) supervisor signed drug analy- — require appears this. It to leave room only a small of report. piece sis This was within the contours of the Confrontation argument. The main the State’s thrust of testify a “reviewer” in the Clause for to argument that in Bullcoming the State’s is testing analyst’s majority stead.5 The testifying “neither observed testing analyst’s] analy- gives argument reviewed the State’s short shrift. [the nor U.S. -, - L.Ed.2d 4. State’s Brief on the Merits at 21. Bullcoming, 5. See 131 S.Ct. at 2715-16. (citing Brief the Merits at 15 id. 2. State’s on J., (Sotomayor, See id. at 2722 concur- also 2712). ring). 2709-10, Bullcoming, 131 S.Ct. at Second, majority’s response to the fabricate the analyst’s results” re- port argument that admitted re- claimed have only State’s to with conformed formality solemnity required lack of ren- port’s safeguards. Maj. Op. at 637- gratuitous, opinion it non-testimonial is a 38. The dered ad further states: attack on State. Rebuffing hominem Without having testimony of argument, majority quotes the State’s analyst actually performed who concurring opinion Thomas’s tests, Justice or at least one who observed authority Williams Illinois6—the execution, their the defendant has no upon advancing argu- relied way explore types to of corruption ment that the lab was non-testimo- and missteps the Confrontation Clause which “the nial—in he stated Confronta- designed protect against. to attempts tion Clause reaches bad-faith to Id. I Although Appellant’s believe that The ma- process.”7 evade formalized right confrontation was violated in this is jority precisely continues: “That our case, the majority unfairly suggests that The State avoid a straight- case. can not an untrustworthy unavailable is an application Bullcoming by of add- forward analyst. I It disagree. important is for signature reviewer ing the of a with no criminal defendant to be able to cross- omitting more personal knowledge and for- examine an analyst sponsors who a report plain language.”8 reading malized A that inculpates the defendant and to have passages that suggests these the opportunity question to an believes that the State has somehow influ- about is why longer he or she no employed the lab’s in a bad-faith procedures enced laboratory, at the there but be other attempt to skirt the Clause’s Confrontation important evidentiary to considerations is requirements. given No basis for this take into And the suggestion account. wholly accusation. unsup- serious This that scientists in the forensic-science com- such, place and as has no in an ported, munity untrustworthy merely are because I opinion certainly from this Court. will they are to testify, unavailable when there my name containing not affix to an support is no evidence to that position, such statement. undermines in a profession confidence that governed by rigorous protocols and cer- HERVEY, J., concurring opinion filed a procedures. tification JOHNSON, J., joined. in which Also, suggest I would a broader read- join I Court’s allow, ing of Bullcoming might —one separately concern express write about example, analyst, in- a second perceive what to be unfair criticism of dependent analysis, opinion, or judgment, community the forensic-science and a limi- testify laboratory testing results testimony tation on the use of forensic depending on the circumstances of too is far narrow. analysis “analyst” the definition majority “reviewer.” can suggests Appellant’s produce If the State “an- right against developed to confront the witnesses him other” who have original analyst separate violated when the her own conclusion on based (i.e., Appellant’s supplied through testing to the data partic- not called stand at insis- “testing” really performed through because there absence of evi- ular tence is an showing analysts machinery develop opinions dence the “tester did not Illinois, 8.Ante, op. Williams v. S.Ct. J., (Thomas, concurring). 7. Id. data), why no reason I see

from that opportunity should be denied If have an testify. you data that would specific based on

analysis analyst, how much the same for each

be required by the observation is

personal testify? he can

second before in the these concur questions,

With judgment.

Court’s LOVING, Appellant

Austin Texas. STATE

No. PD-1334-12. of Criminal Texas.

June Law, Austin, Attorney at Payan,

Ariel TX, Appellant.

Case Details

Case Name: Burch, Benjamin Knighten

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 26, 2013

Citation: 401 S.W.3d 634

Docket Number: PD-0943-12

Court Abbreviation: Tex. Crim. App.