           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

       H ERVEY, J., filed a concurring opinion in which J OHNSON, J., joined.

                                      OPINION

       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
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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.

Id. 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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