ECEIVED COU RT OF APPEALS
'JUN 2 8 2013 LISA MATZ CLERK, 5th DISTRI CT
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-0943-12
BENJAMIN KNIGHTEN BURCH, Appellant
v. THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS DALLAS COUNTY
Womack, J, delivered the opinion of the Court in which Meyers, Price, Johnson, Cochran, and Alcala, JJ, joined. Keasler, J , filed a concurring opinion in which Keller, PJ, and Hervey, J, joined. Hervey, J, filed a concurring opinion in which Johnson, J, joined.
We granted the State's Petition for Discretionary Review to determine whether the
Confrontation Clause of the United States Constitution was violated by the admission of a drug
analysis when only the reviewing analyst (not the testing analyst) testified. We hold that there
was such ail error and affirm the judgment of the Fifth Court of Appeals to remand this case for a
new trial. 2
I
The appellant was arrested by a Dallas police officer who saw him and a companion with
drugs and paraphernalia. He was indicted for possession with intent to deliver a controlled
substance, cocaine. 1
At trial, the State offered into evidence a one-page lab report. The relevant findings stated
only, "The contents of four green ziplock bags was used for analysis. The hard, white material
contained cocaine. The amount of cocaine found was 1.38 grams (62%). The total weight ofthe
material, including adulterants or dilutants was 2.2 grams." The report was signed by Jennifer
Pinckard, the analyst, and Monica Lopez, the reviewer.
The State called Lopez, but not Pinckard, to testify. Lopez testified that she was a
supervisor for the Southwestern Institution of Forensic Sciences (SWIFS), a laboratory that is
independent ofthe Dallas County D.A.'s Office and the police department. Lopez explained that
Pinckard had performed all the tests in this particular case, but Pinckard no longer worked for
SWIFS. No evidence was offered as to why Pinckard had left the laboratory. Lopez said that, as
the reviewer, she was to ensure that the lab's policies and procedures were followed. Although
she agreed with the State that she "basically double-checked everything that was done," she did I
not clarify what that meant. There was no indication that she actually saw the tests being
performed or participated in them. The appellant objected, alleging a violation of his Sixth
Amendment right to confront witnesses against him. The trial court overruled his objection and
admitted the report, the underlying physical evidence, and Lopez's testimony that the substance
was cocame.
1 See TEX. HEALTH & SAFETY CODE§ 481.112. 3
The Fifth Court of Appeals held that the trial court erred by admitting the drug analysis
and Lopez's testimony that the evidence was cocaine. After finding that the error was not
harmless, 2 the Court of Appeals reversed and remanded for a new trial because the State had no
other admissible evidence of the substance's identity and weight. 3 The State filed a Petition for
Discretionary Review, which we granted.
II
Under the Confrontation Clause of the Sixth Amendment of the United States
Constitution, made applicable to the states through the Fourteenth Amendment, 4 "in all criminal
prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against
him." In Crawford v. Washington, the Supreme Court interpreted this to mean that "testimonial"
evidence is inadmissible at trial unless the witness who made the testimonial statement either:
( 1) takes the stand to be cross-examined or
(2) is unavailable and the defendant had a prior opportunity to cross-examine
him. 5
The prior opportunity to cross-examine in person is both a necessary and a dispositive
requirement for the admission of testimonial statements under the Confrontation Clause. 6 The
Court warned that "under no circumstances" shall the defendant be deprived of "seeing the
2 See TEX. R. APP. P. 44.2(a).
3 Burch v. State, No. 05-10-01389-CR, 2012 Tex. App. LEXIS 4814 (Tex. App.- Dallas, June 18, 2012).
4 See Pointer v. Texas, 380 U.S. 400,403 (1965).
5 541 U.S. 36, 54 (2004).
6 Id, at 55 . witness face to face, and ... subjecting him to the ordeal of cross-examination."7 The very real
difficulties and costs involved in making witnesses available at trial cannot trump this categorical
requirement. The Constitution does not list exceptions, and so (reasoned the Court) the judiciary
should riot create them.8
While the exact contours of what is testimonial continue to be defined by the courts, such
statements are formal and similar to trial testimony. In other words, testimonial statements are
those "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. " 9
These principles have been applied to forensic reports. The Supreme Court has explicitly
held that an analyst' s certification prepared in connection with a criminal investigation or
prosecution (specifically, a report identifying a substance as cocaine) is testimonial and cannot be
admitted without satisfying the requirements of the Confrontation Clause. 10 These reports are
formal and created for the sole purpose of establishing or proving a highly relevant fact to a
criminal prosecution.11 However, the issue of exactly who is required to testify in connection
with such a report has not been fully resolved.
Bullcoming v. New Mexico was a prosecution for aggravated DWI in which the State did
not call the analyst who tested the defendant's blood sample for alcohol. Instead, because the
7 !d., at 57 (internal quotes omitted).
8 !d., at 54. See also Giles v. California, 554 U.S. 353, 375 (2008) ("It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts' views) those underlying values.")
9 Crawford, 541 U.S., at 52.
10 Melendez-Diaz v. Massachusetts, 557 U.S . 305, 311 (2009).
11 See id. , at 310. 5
original analyst was on unpaid leave, the State called another analyst familiar with the
laboratory's testing procedures. 12 The Supreme Court held that, because the report was the
testimonial statement of the analyst who performed the tests, it could not be offered into evidence
through the testimony of a different, "surrogate" witness. 13
In reaching this decision, the Supreme Court explicitly rejected the lower court's
reasoning that the analyst was only interpreting machine-generated data and that the testimonial
statements were therefore those of the machine. Rather, the original analyst needed to be cross-
examined so that the defendant could explore "the particular test and testing process he employed
... [and] any lapses or lies on the certifying analyst's part." 14 Even if the results in question
involved no interpretation or discretion, the testifying reviewer could not verify that the results
were properly generated. Further, the court explained that the defendant had a right to question
why the testing analyst was on unpaid leave. 15
III
This case is controlled by Bullcoming. There is no indication that the appellant had a pre-
trial opportunity to cross-examine the analyst who tested the cocaine. 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 or that the tester did
not fabricate the results. She could say only that the original analyst wrote a report claiming to
12 131 S. Ct. 2705, 2709, 180 L. Ed. 2d 610 (2011).
13 /d., at 2710.
14 !d., at 2716.
15 Ibid. 6
have conformed with the required safeguards. Consequently, cross-examining her did not satisfy
the appellant's constitutional rights. 16 While we cannot say that anything would have come from
a cross-examination of the original analyst, the law does not "tolerate dispensing with
confrontation simply because the court believes that questioning one witness about another's
testimonial statements provides a fair enough opportunity for cross-examination." 17
The State argues that this case is distinguishable from Bullcoming because Lopez actually
signed the report that was admitted into evidence. This is irrelevant. 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. It would not, for instance, solve the
problem if a laboratory had all of its analysts sign every report. Rather, the witness being called
needs to have personal knowledge of the facts in issue- the specific tests and their execution. 18
The State also emphasizes parts of Justice Sotomayor's Bullcoming concurrence in which
she highlighted the limitations of the majority's opinion. Specifically, Justice Sotomayor clarified
that Bullcoming was "not a case in which the person testifying is a supervisor, reviewer, or
someone else with a personal, albeit limited, connection to the scientific test at issue." 19 The State
argues that this portion of Justice Sotomayor's opinion indicates that a case such as this might
have been decided differently by the Supreme Court. However, this is only one justice's opinion,
16 Melendez-Diaz, 557 U.S., at 320 ("Like expert witnesses generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination.").
17 Bullcoming, 131 S. Ct., at2716.
18 Id, at 2715.
19 Id, at 2722. 7
which does not have the weight of law even if it may indicate the Supreme Court's changing
course. This .is especially true given that the State concedes that such an outcome is directly in
conflict with the majority's unequivocal statement that "the accused's right is to be confronted
with the analyst who made the certification, unless that analyst is unavailable at trial, and the
accused had an opportunity, pretrial, to cross-examine that particular scientist." 20
IV
The Supreme Court handed down Williams v. Illinoii 1 the same day that the Fifth Court
of Appeals handed down its decision in this case. Consequently, the Court of Appeals did not
have the benefit of the most recent Supreme Court precedent. Williams was a splintered decision
in which only an outcome, and not an opinion, received a majority vote. This made its full impact
hard to discern. However, none of the plurality's rationales affect the result in this case.
In Williams, semen samples taken from a rape victim's vagina were sent to an
independent laboratory for DNA testing. The lab created a DNA profile from the semen and sent
that profile back to police. At trial, an expert for the prosecution testified that the profile created
from samples in the victim's vagina matched the defendant's DNA profile generated by the
police laboratory. The defendant argued that the expert could not testify that the DNA profile was
created from semen within the victim because she only read a report generated by the
independent lab. 22 He further objected that his Sixth Amendment rights were violated when he
was unable to cross-examine the analyst who created the profile, even though it was not offered
20 Jd, at 2710.
21 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012).
22 Id, at 2229-30. 8
into evidence. 23
Justice Ali to delivered the judgment of the court and an opinion that garnered four
votes. 24 In the view of the plurality, the petitioner's rights were not violated because the out-of-
court statement (that the DNA profile came from semen within the victim) was not offered to
prove the truth of the matter asserted. Instead, it was merely alluded to in order to explain the
basis of the witness's independent conclusions (that the profile matched the petitioner's DNA). 25
Alternatively, as a second and independent basis for the decision, Justice Alito stated that the
report was not testimonial because it was created before there was a specific suspect.
Consequently, it was not inherently inculpatory or created for use against the petitioner. 26
Neither of these rationales helps the State in this case. The statement at issue here was
offered into evidence forits truth. The SWIFS report was submitted as the only evidence of the
amount and makeup of the substance possessed by the appellant, the cocaine. Without such
evidence, it is doubtful that the appellant could have been convicted at all. Justice Alito's second
rationale is equally inapplicable to this case, which is unlike Williams because the lab report was
generated after the appellant was arrested and with the sole purpose of proving his guilt.
Justice Alito's opinion stressed that Williams was not a departure from other cases such
as Bullcoming because, in Williams, the actual report was not offered into evidence while in the
23 Id, at 2231. 24 Id, at 2227. 25 !d., at 2228. 26 Ibid 9
other cases it was. 27 Again, more in line with Bullcoming, the report at issue here was offered and
admitted into evidence. Consequently, it was not merely mentioned as an underlying basis of the
expert's opinion: the report itself was primary evidence.
Although no other members of the Court joined Justice Thomas's opinion, the State
asserts that we should follow its reasoning because it is the "narrowest"ground for the judgment
reached. 28 Justice Thomas disagreed with Justice Alito and argued that the report was offered for
the truth of the matter it asserted. Nonetheless, Justice Thomas reasoned that there was no Sixth
Amendment violation because the report was not fori:nal or solemn enough to be testimonial. 29
While it is true that the report in this case does not contain an oath, affirmation, or
certificate as desired by Justice Thomas, we find this distinction irrelevant. The State cannot
sidestep the Sixth Amendment merely by choosing less formal language. The report asserted that
the substance was cocaine, was signed by the analyst who performed the tests (presumably to
certify the veracity of the report's contents), and then was signed again by a reviewer. The only
rational conclusion is that this is a formal statement created in preparation for trial and is
testimonial in nature. We are not convinced that the absence of an oath or the word "certify" is
enough of a distinction to change the analysis from that of Bullcoming. Even Justice Thomas,
despite his emphasis on the ceremonial, stated that "the Confrontation Clause reaches bad-faith
27 /d., at 2233.
28 See Marks v. United States, 430 U.S. 188, 193 ( 1977) ("When a fragmented Court decides a case and no single rationale explaining the result enjoys the aSsent of five justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds."'). Because it is unnecessary, we do not address whether or not the State's contention is correct.
29 Williams, 132 S. Ct., at 2255-56. 10
attempts to evade the formalized process. " 30 That is precisely our case. The State can not avoid a
straightforward application of Bullcoming by adding the signature of a reviewer with no personal
knowledge and omitting more formalized language. We are not persuaded.
v The lower court was correct that this case closely mirrors the facts of Bullcoming. The
State attempted to submit testimonial evidence that the appellant possessed cocaine without
giving the appellant the opportunity to cross-examine the analyst who tested the cocaine and
made the affirmation of its contents. Although the State did call the reviewing analyst at trial,
that witness did not have personal knowledge of the testimonial facts being submitted.
Consequently, she was not an appropriate surrogate witness for cross-examination. We affirm the
Court of Appeals' decision to reverse and remand to the trial court for further proceedings.
Delivered: June 26, 2013.
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30 !d. , at 2261. IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0943-12
v.
THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS DALLAS COUNTY .
KEASLER, J., filed a concurring opinion, in which KELLER, P.J., and HERVEY, J., joined.
OPINION
For the two reasons described below, I join only the Court's judgment.
First, the majority misinterprets the State's argument by characterizing its claims that
Bullcoming v. New Mexico 1 is distinguishable from the present case solely because the
testifying witness, Monica Lopez-Jennifer Pinkard's (the testing analyst)
I 131 S. Ct. 2705 (2011). BURCH-2
supervisor-signed the drug analysis report. This was only a small piece of the State's
argument. The main thrust of the State's argument is that in Bullcoming the testifying
witness "neither observed nor reviewed [the testing analyst's] analysis," but in this case, the
witness did "review" the testing analyst's analysis? InBullcoming, a state laboratory analyst
testified about the testing performed by another analyst in the same lab. Despite being
familiar with the laboratory's testing procedures, the witness neither participated in nor
observed the test on Bullcoming's blood sample, and the lab report was admitted as a
business record. 3 As a result, the Supreme Court concluded Bullcoming's confrontation
rights were violated.
The State highlights Lopez's testimony to support its claim that Lopez's connection
with the drug testing was greater than the testifying witness in Bullcoming. After Pinkard
performed the testing, Lopez reviewed the report to ensure that the lab's policies and
procedures were followed. She further stated that she "double checked everything that was
done" and signed the report as the "reviewer." The State asserts in its brief, "As a signer,
[Lopez] certified the results and correctness of the content of the report."4 While Lopez's
testimony may not be ideally descriptive about what exactly double-checking another
analyst's work entails, the fact that she performed some level of review illustrates the factual
2 State's Brief on the Merits at 15 (citing id. at 2712). 3 Bullcoming, 131 S. Ct. at2709-10, 2712. 4 State's Brief on the Merits at 21. BURCH-3
differences between the present case and Bullcoming. The State acknowledges that Lopez
did not stand over Pinkard's shoulder and observe her performing the test. But as the State
asserts, Bullcoming does not necessarily require this. It appears to leave room within the
contours ofthe Confrontation Clause for a "reviewer" to testify in the testing analyst's stead. 5
The majority gives the State's argument short shrift.
Second, the majority's response to the State's argument that the admitted report's lack
of formality or solemnity rendered it non-testimonial is a gratuitous, ad hominem attack on
the State. Rebuffing the State's argument, the majority quotes Justice Thomas's concurring
opinion in Williams v. Illinois 6-the authority the State relied upon in advancing its argument
that the lab report was non-testimonial-in which he stated "the Confrontation Clause
reaches bad-faith attempts to evade the formalized process." 7 The majority continues: "That
is precisely our case. The State can not avoid a straightforward application of Bullcoming
by adding the signature of a reviewer with no personal knowledge and omitting more
formalized language. " 8 A plain reading of these passages suggests that the Court believes
that the State has somehow influenced the lab's procedures in a bad-faith attempt to skirt the
Confrontation Clause's requirements. No basis is given for this serious accusation. This is
5 See Bullcoming, 131 S. Ct. at 2709, 2715-16. See also id. at 2722 (Sotomayor, J., concurring). 6 Williams v. Illinois, 132S. Ct. 2221, 2255 (Thomas, J., co~curring). 7 Jd. at 2261. 8 Ante, op. at 9-10. BURCH---4
wholly unsupported, and as such, has no place in an opinion from this Court. I certainly will
not affix my name to an opinion containing such a statement.
DATE DELIVERED: June 26, 2013
PUBLISH IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0943-12
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS DALLAS COUNTY
HERVEY, J., filed a concurring opinion in which JOHNSON, J., joined.
I join only the Court's judgment and write separately to express concern about
what I perceive to be unfair criticism of the forensic-science community and a limitation
on the use of forensic testimony that is far too narrow.
The majority suggests that Appellant's right to confront the witnesses against him
was violated when the original analyst was not called to the stand at Appellant's
insistence because there is an absence of evidence showing that the "tester did not Burch-2
fabricate the results" and the analyst's report claimed only to have conformed with the
required safeguards. Maj. Op. at 6. The opinion further states:
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.
ld. Although I believe that Appellant's confrontation right was violated in this case, the
majority unfairly suggests that an unavailable analyst is an untrustworthy analyst. I
disagree. It is important for a criminal defendant to be able to cross-examine an analyst
who sponsors a report that inculpates the defendant and to have the opportunity to
question an analyst about why he or she is no longer employed at the laboratory, but there
may be other important evidentiary considerations to take into account. And the
suggestion that scientists in the forensic-science community are untrustworthy merely
because they are unavailable to testifY, when there is no evidence to support that position,
undermines confidence in a profession that is governed by rigorous protocols and
certification procedures.
Also, I would suggest a broader reading of Bullcoming-one that might allow, for
example, a second analyst, with an independent analysis, opinion, or judgment, to testifY
to results of laboratory testing depending on the circumstances of the analysis and the
definition of "analyst" or "reviewer." If the State can produce "another" who may have
developed his or her own separate conclusion based on data supplied through testing (i.e.,
particular "testing" is really performed through machinery and analysts develop opinions Burch-3
from that data), I see no reason why that witness should be denied an opportunity to
testify. If you have an independent analysis based on specific data that would be the same
for each analyst, how much personal observation is required by the second analyst before
he can testify?
With these questions, I concur in the Court' s judgment.
Hervey, J.
Filed: June 26, 2013
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