             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

        K EASLER, J., filed a concurring opinion, in which K ELLER, P.J., and H ERVEY,
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 Mexico1 is distinguishable from the present case solely because the

testifying    witness,    Monica     Lopez—Jennifer     Pinkard’s    (the   testing   analyst)




       1
           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.2 In Bullcoming, 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. at 2709-10, 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 of the 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. Illinois6 —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, 132 S. Ct. 2221, 2255 (Thomas, J., concurring).
       7
           Id. 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
