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WILLIAMS, KEVIN

PD-1199-17 03/21/2018

“The court of appeals erred in affirming the trial court’s allowing evidence of a drug test without testimony of the chemist who performed the testing.”

Williams was charged with manslaughter and fleeing the scene of an accident. He admitted being intoxicated on methamphetamine and cocaine at the time and provided a blood sample. Two different labs conducted testing. The State called one lab’s witness to testify that marijuana and Soma were detected in Williams’s blood. Results from the other lab (showing the presence of amphetamine, methamphetamine, and cocaine metabolite) were admitted through a certificate of analysis report. Under Tex. Code Crim. Proc. art. 38.41, a defendant can prevent admission of a certificate of analysis and insist on the analyst’s testimony by objecting at least 10 days before trial. Williams did not do so. He argued at trial, however, that because the certificate of analysis did not state that the affiant had personally conducted the testing, it did not substantially comply with Article 38.41, and thus he did not have to object pretrial. The certificate of analysis was admitted at trial, however, and he was convicted of both offenses.

The court of appeals observed that the sample certificate of analysis in Article 38.41, § 5 includes a statement that the affiant “conducted the following tests or procedures” but that there is no express requirement the affiant be the analyst who conducted the testing. It held that the certificate substantially complied with the requirements of Article 38.41 and that Williams failed to preserve his confrontation objection by not objecting timely.

 Williams argues that a certificate of analysis that is not sworn to by the analyst who performed the testing “calls into question the reliability and competency of the drug testing” and should not have the effect of forfeiting his confrontation rights.

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