              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                       NO. PD-1199-17



                          ANDREW LEE WILLIAMS, Appellant

                                               v.

                                  THE STATE OF TEXAS



           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FOURTEENTH COURT OF APPEALS
                           BRAZORIA COUNTY

      K EASLER, J., delivered the opinion of the Court, in which H ERVEY, R ICHARDSON,
Y EARY, N EWELL, and S LAUGHTER, JJ., joined. K ELLER, P.J., filed a concurring opinion.
W ALKER, J., filed a dissenting opinion. K EEL, J., concurred.

                                        OPINION

       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


       1
           See generally T EX. C ODE C RIM. P ROC. art. 38.41 (“Certificate of Analysis”).
                                                                              WILLIAMS—2

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


       2
           T EX. P ENAL C ODE § 19.04; T EX. T RANSP. C ODE § 550.021(c)(1)(A).
                                                                              WILLIAMS—3

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
                                                                                  WILLIAMS—4

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


       3
          Williams v. State, 531 S.W.3d 902, 917 (Tex. App.—Houston [14th Dist.] 2017)
(citations omitted).
       4
           Id. at 918 (referring to T EX. C ODE C RIM. P ROC. art. 38.41, § 4).
       5
           Id.
                                                                              WILLIAMS—5

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




       6
            Id. at 917 (citing T EX. C ODE C RIM. P ROC. art. 38.41, § 5).
       7
           See Appellant’s Brief on Discretionary Review at 6 (“Appellant argues that a
certificate that does not contain the sworn affidavit of the chemist who personally conducted
the testing does not substantially comply with Section 5 of Article 38.41”).
       8
          See State’s Brief on Discretionary Review at 2 (“At issue is whether the certificate
admitted into evidence as State’s Exhibit 138 substantially complies with the requirements
of article 38.41.”).
       9
            See Concurring Opinion at 1–2.
       10
        Cf. Oliva v. State, 548 S.W.3d 518, 520 (“We, of course, are not bound by any
agreement or concessions by the parties on an issue of law.”).
       11
             U.S. C ONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”); see also Pointer v. Texas, 380
U.S. 400, 406 (1965) (holding that the Sixth Amendment right of confrontation is “enforced
against the States under the Fourteenth Amendment”) (citations omitted).
                                                                                 WILLIAMS—6

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




       12
            See Crawford v. Washington, 541 U.S. 36, 52–54 (2004).
       13
        Bullcoming v. New Mexico, 564 U.S. 647, 664 (2011) (quoting Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 311 (2009)).
       14
            Melendez-Diaz, 557 U.S. at 327 (citing Wainwright v. Sykes, 433 U.S. 72, 86–87
(1977)).
       15
            Id. at 326–27.
       16
            Id. at 326.
                                                                               WILLIAMS—7

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



       17
            Id.
       18
            T EX. C ODE C RIM. P ROC. art. 38.41, § 1.
       19
            Id. § 3.
       20
            Id. § 4.
                                                                                WILLIAMS—8

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




       21
            Id.
       22
            Id. § 5.
       23
            Id.
       24
            T EX. C ODE C RIM. P ROC. art. 38.41, § 4 (some capitalization altered).
       25
            Id.
                                                                                 WILLIAMS—9

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 constitutional, confrontation-based objection?

       The parties seem to agree that if the State timely files a substantially compliant

certificate of analysis and the defendant fails to object, the certificate is admissible at trial

“without the necessity of the analyst personally appearing in court.” 26 In that scenario, any

confrontation objection at trial would necessarily fall on deaf ears. By virtue of the timely

filed, substantially compliant certificate of analysis, the defendant would have been put on

notice that, if he wanted to assert his right of confrontation, he needed to assert it within a

particular time frame. And, if he fails to do so, the certificate will be admitted over any

subsequent confrontation objection.

       But what if the State files a certificate that neither fully nor even “substantially”

complies with Article 38.41? What if, for example, the State timely files a certificate that

includes only the results of the analysis without any accompanying affidavit or sworn

statement—and then declares its intent to offer the certificate without calling the analyst as

a sponsoring witness? Is it still the case that, if the defendant fails to timely object to the use

of that certificate, it remains admissible over his subsequent confrontation objection?

       Williams argues that Section 4’s timely-objection requirement is triggered only if the

proffered certificate meets the minimum threshold standard of “substantial compliance” with


       26
            See T EX. C ODE C RIM. P ROC. art. 38.41, §§ 1, 4, 5.
                                                                               WILLIAMS—10

Article 38.41.27 And, according to Williams, the State’s certificate in this case did not

substantially comply with the article because it did not contain a sworn statement from the

analyst who tested his blood. Under Williams’s reading of the statute and his assessment of

the State’s certificate in this case, he was under no obligation to object to the certificate pre-

trial. He therefore asserts that his confrontation objection was properly made when the State

offered the certificate into evidence at trial.

       Because we decide that the certificate in this case does substantially comply with

Article 38.41 (at least in the particular, narrow regard Williams has complained about on

appeal), we need not decide this preservation issue. In receipt of a substantially compliant

certificate of analysis more than twenty days before trial, Williams was required to object to

the use of the certificate in a timely manner or risk losing his ability to assert his right of

confrontation at trial. We leave for another day an examination of the procedural-default

consequences of a defendant’s failure to timely object to a certificate of analysis that does

not substantially comply with Article 38.41.

       B. What is “substantial” compliance?

       While Section 3 of Article 38.41 describes the information that a certificate of analysis

“must contain,”28 the plain purpose of Section 5 is to describe the various forms that a



       27
           See also State’s Brief on Discretionary Review at 22 (arguing that Dr. Adams’s
affidavit “substantially complies with 38.41 . . . and thereby triggered a time frame” in which
Williams was obligated to object).
       28
            T EX. C ODE C RIM. P ROC. art. 38.41, § 3.
                                                                                WILLIAMS—11

certificate can permissibly take. If the offering party uses the prescribed form (what Section

5 refers to as “the following form”), worded in the first person, it can rest assured that the

certificate will be deemed “sufficient” for purposes of Article 38.41.29 But that is not the

only form that a certificate of analysis may take. Section 5 is worded in the disjunctive; a

certificate is sufficient if it uses the prescribed form “or if it otherwise substantially complies

with” Article 38.41.30

       The word “otherwise,” as it appears in Section 5, is a clear indication that Section 5

is a permissive provision about form, not a mandatory provision about substance. That is,

Section 5 does not dictate what kinds of information the certificate “must contain.” 31 It

describes how the certificate may, at the proponent’s discretion, be worded. In common

usage, “otherwise” means “in a different way or manner.”32 What Section 5 says, then, is that

the offering party may structure the certificate of analysis in any “way or manner” it wishes,

so long as the certificate “substantially” complies with Article 38.41.

       That brings us to the critical question in this case: What does it mean for a certificate

of analysis to “substantially” comply with Article 38.41? To answer this question, we look


       29
            Id. § 5.
       30
            Id.
       31
            See id. § 3.
       32
           Otherwise, W EBSTER’S N EW C OLLEGIATE D ICTIONARY (1st ed. 1980); see also
Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim. App. 2012) (citing T EX. G OV’T C ODE §
311.011) (“[U]ndefined words and phrases [in a statute] shall be construed according to the
rules of grammar and common usage.”) (internal quotation marks omitted).
                                                                            WILLIAMS—12

to our construction of another statute containing the phrase “substantial compliance.”

       Article 26.13(a) of the Code of Criminal Procedure says that, before accepting a plea

of guilty or nolo contendere, the trial judge “shall admonish the defendant” upon six

separately enumerated items.33 However, subsection (c) provides that, in admonishing the

defendant, “substantial compliance by the court is sufficient.”34 There was a time in our

jurisprudence when we held that, if one of the statutorily enumerated admonishments was

not given “but the admonishment was immaterial to the plea,” the trial judge’s

admonishments would still, as a whole, be considered substantially compliant with Article

26.13(a).35

       But in Cain v. State, we “rejected the . . . approach of finding substantial compliance

where there was in fact no compliance with a particular admonishment.”36 We described as

“legal fiction” the idea that “an admonishment was in substantial compliance even though

it was never given.”37 And we quoted approvingly from a concurring opinion in an earlier,

related case, Morales v. State: “It is the sense of [Article 26.13(c)] that defendants need not




       33
            See T EX. C ODE C RIM. P ROC. art. 26.13(a).
       34
            Id. art. 26.13(c).
       35
            E.g., Whitten v. State, 587 S.W.2d 156, 158 (Tex. Crim. App. 1979) (citations
omitted).
       36
          See Cain v. State, 947 S.W.2d 262, 263 (Tex. Crim. App. 1997) (citing Morales v.
State, 872 S.W.2d 753, 754–55 (Tex. Crim. App. 1994)).
       37
            Id. at 264.
                                                                             WILLIAMS—13

be admonished in any particular form of words, but only that the information be

communicated to them in some effective way.”38               That concurrence also construed

“substantial compliance” as “the opposite of ‘formal compliance,’ not a synonym for ‘virtual,

partial, or near compliance.’” 39

       That is precisely how we understand the phrase “substantially complies” in Article

38.41, Section 5. A certificate of analysis under Article 38.41 does not need to be phrased

“in any particular form of words.”40 But it must, at a bare minimum, “substantially”

comply—that is, comply with all of the substantive requirements of—Article 38.41. As we

have already observed, the mandatory, substantive requirements of an Article 38.41

certificate are laid out in Section 3.41 That is because Section 3 is the only provision of the

statute that speaks to what a certificate of analysis “must contain.” 42

       Section 3 requires the certificate to include information that might arguably be

considered personal to the laboratory analyst—her name, educational background, duties of

employment, and so forth. But there is no express requirement in Section 3 that any of that


       38
            Id. at 263 n.3 (quoting Morales, 872 S.W.2d at 756 (Meyers, J., concurring)).
       39
            See Morales, 872 S.W.2d at 756 (Meyers, J., concurring).
       40
            See id. (Meyers, J., concurring).
       41
          See Franklin v. State, No. PD-0787-18, 2019 WL 2814861, at *2 (Tex. Crim. App.
July 3, 2019) (“A statute must be read as a whole in determining the meaning of particular
provisions, and it is presumed that the entire statute is intended to be effective.”) (footnotes
and citations omitted).
       42
            See T EX. C ODE C RIM. P ROC. art. 38.41, § 3.
                                                                               WILLIAMS—14

information come from the analyst herself. Section 3 says that the information must be

“certified under oath,” but it does not require that oath to be given by any particular

individual. It seems to us that any person or group of persons with knowledge of the analyst,

laboratory, and forensic testing procedures and results could truthfully swear to any or all of

the information that Section 3 requires.43

       Does it matter if the affiant is someone who could not, over a Sixth Amendment

confrontation objection, serve as a sponsoring witness for the laboratory results at trial? The

answer is no. No matter who the affiant is, the defendant can always assert his right of

confrontation, as long as he is diligent about it. If, after the State provides the defendant with

a substantially compliant certificate of analysis, the defendant still wishes to confront his

accuser in court, Article 38.41 allows him every opportunity to do so. All he has to do is

assert his right of confrontation “no[] later than the 10th day before the trial begins” 44 and

it will be afforded to him; this is true even if the certificate of analysis tracks the statute

word-for-word.45      But if the defendant does not promptly object to a timely filed and

substantially compliant certificate, his confrontation objection will be forfeited. This does

not diminish the defendant’s right of confrontation in the slightest.46


       43
         Contra Dissenting Opinion at 4 (arguing that “nobody other than the testing analyst
could provide a description of the tests used or the reliability thereof”).
       44
            T EX. C ODE C RIM. P ROC. art. 38.41, § 4.
       45
            See Melendez-Diaz, 557 U.S. at 310–11.
       46
            See id. at 326–27.
                                                                             WILLIAMS—15

       C. The certificate in this case survives Williams’s challenge.

       Williams’s specific contention is that the certificate of analysis in this case does not

substantially comply with Article 38.41 because it fails to establish that the affiant, Dr.

Adams, was the analyst who tested his blood. As we have just demonstrated, there is no

requirement in the statute, express or otherwise, that the affiant be the analyst who tested the

physical evidence. That is essentially a matter of form, discretionary with the offering party,

not a matter of substance. The only way a certificate of analysis will fail to substantially

comply with Article 38.41 is if it omits information that Section 3 says a certificate “must

contain.” 47

       The dissenting opinion misunderstands our holding. We do not hold that it is

permissible for an affidavit to describe facts about “any person capable of analyzing” and

omit facts pertinent to “the analyst” herself.48        We do not hold that “anyone else’s

background and abilities” may be listed in lieu of the analyst’s background, training, and

experience.49 We do not hold that the affidavit can list the duties of a non-analyst in lieu of

the analyst’s duties and still “substantially” comply with Article 38.41.50 We acknowledge




       47
            See T EX. C ODE C RIM. P ROC. art. 38.41, § 3.
       48
            Dissenting Opinion at 2.
       49
            Id. at 3.
       50
            See id.
                                                                              WILLIAMS—16

that when Section 3 says “the analyst,” it means “the analyst.”51 Our holding is simply that,

for Section 5, substantial-compliance purposes, the affiant need not be the same person as

the analyst. It is still the case that, whoever the affiant is, she must provide information that

is responsive to Section 3—including information pertinent to “the analyst.”

       To be sure, the State’s certificate in this case is missing at least one item of

information that Section 3 plainly requires: “a description of the analyst’s educational

background, training, and experience.”52 Although the certificate provides Dr. Adams’s

educational background, training and experience, it does not establish that Dr. Adams was

“the analyst” in this case, i.e., the person who “conducted” the relevant “tests or procedures”

on the physical evidence.53 Similarly, although the certificate lists the names of the various

individuals performing tests upon Williams’s blood sample, it does not describe the

educational and professional qualifications of those individuals. That is information that, per

Section 3, a certificate of analysis “must contain.” 54

       Had Williams apprised the trial judge that the State’s certificate was missing

information that Section 3 says a certificate “must contain,” he might well have succeeded

in his argument that this certificate does not substantially comply with Article 38.41. The



       51
            Id. at 2 (emphasis in original).
       52
            T EX. C ODE C RIM. P ROC. art. 38.41, § 3.
       53
            See id. § 5.
       54
            Id. § 3.
                                                                             WILLIAMS—17

problem is that Williams never once complained that the certificate of analysis in this case

lacked one or more of the mandatory Section 3 requirements. We cannot fault the trial judge

for overruling Williams’s confrontation objection when, in response to the State’s counter-

argument that it had timely filed a certificate of analysis, Williams’s only counter-counter-

argument was that the certificate was noncompliant because the affiant was someone other

than the analyst. For the reasons explained in this opinion, that response was meritless, and

the trial judge rightly rejected it. Neither can we fault the court of appeals for affirming the

trial judge when, once again, Williams’s only argument on appeal was in the same vein—that

the statute requires that the affiant be the analyst. For the very same reasons, that argument

lacks merit, and the court of appeals rightly rejected it. Whatever other deficiencies the

certificate of analysis in this case suffers from, it does not fail to “substantially compl[y]”

with Article 38.41 for the reason that Williams has proposed.

                                      IV. CONCLUSION

       We reiterate that Article 38.41 does not in any way diminish a criminal defendant’s

core Sixth Amendment right “to confront those who bear testimony against him.” 55 The

defendant can always defeat an Article 38.41 proffer—by asserting his Sixth-Amendment

right of confrontation, in writing, “not later than the 10th day before the trial begins.” 56 If

he acts within this time frame, there is no need for him to explain to the trial judge how or

       55
         See Melendez-Diaz, 557 U.S. at 309 (quoting Crawford, 541 U.S. at 51) (internal
quotation marks omitted).
       56
            See T EX. C ODE C RIM. P ROC. art. 38.41, § 4.
                                                                              WILLIAMS—18

why he thinks the certificate fails to comply with Article 38.41;57 his constitutional right of

confrontation simply trumps the statute. But if he tries to act outside this time frame, all bets

are off.58

       We affirm the court of appeals’ judgment.




Delivered: October 9, 2019

Publish




       57
             See id. § 5.
       58
             See supra Part III-A.
