Deener v. State

• Decision Date: 04 December 2006
• Docket Number: No. 05-05-00703-CR.,05-05-00703-CR.
• Citation: 214 S.W.3d 522
• Parties: Curtis DEENER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

214 S.W.3d 522

Curtis DEENER, Appellant, v. The STATE of Texas, Appellee.

No. 05-05-00703-CR.

Court of Appeals of Texas, Dallas.

December 4, 2006.

Rehearing Overruled February 14, 2007.

Robert Charles Bunger, Dallas, for Appellant.

Christian T. Souza, Assistant Criminal District Attorney, Kaufman, for State.

Before Justices MORRIS, MOSELEY, and RICHTER.

OPINION

Opinion by Justice MOSELEY.

The Texas Code of Criminal Procedure generally provides that certificates of analysis of physical evidence and chain of custody affidavits are admissible without the declarant appearing in court if the documents are filed and served on the opponent more than twenty days before trial begins and the opponent does not file a written objection by the tenth day before trial begins. TEX.CODE CRIM. PROC. ANN. arts. 38.41 (certificate of analysis of physical evidence); 38.42 (chain of custody affidavit) (Vernon 2005). The relevant statutes were enacted shortly before the United States Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In this case, we address whether this statutory procedure violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. Because we conclude it does not, and because we also reject appellant Curtis Deener's other issue on appeal, we affirm.

BACKGROUND

Kaufman police officer Jeremy Mack stopped Deener for a faulty brake light and arrested him on an outstanding warrant for parole violations. During book-in at the police station, Mack asked Deener to empty his pockets for an inventory search. Deener removed a pack of cigarettes from his pocket and placed it on the table. Mack testified he looked inside the pack and found an off-white rock-like substance he believed to be crack cocaine. Deener was charged with illegal possession of a controlled substance (cocaine) in an amount less than one gram.

Pursuant to articles 38.41 and 38.42 of the code of criminal procedure, the State timely filed and served notices of chain of custody affidavits and of a certificate of analysis relating to the alleged contraband. The chain of custody affidavits traced the custody of the cigarette pack and its contents from when it was retrieved by the police to when it was delivered to the Texas Department of Public Safety (DPS) Garland Crime Lab. The certificate of analysis, signed by an employee of the DPS Crime Lab in Garland, contained the information required by article 38.41, section 3. TEX.CODE CRIM. PROC. ANN. art. 38.41, § 3. It stated that the substance weighed 0.07 grams and contained cocaine. Deener did not file a written objection to the affidavits or the certificate of analysis. See id. arts. 38.41, § 4; 38.42, § 4 (certificate or affidavit not admissible if opponent files written objection not later than tenth day before trial begins).

Deener's first trial began February 28, 2005. During this trial the chain of custody affidavits and certificate of analysis were admitted without objection. The jury, however, was unable to reach a verdict, and the trial court declared a mistrial.

At the second trial two weeks later, Mack was again the only witness for the State. However, when the State again offered the chain of custody affidavits and the certificate of analysis, Deener objected to the documents as hearsay and as violations of his Sixth Amendment right of confrontation, as those rights were described in Crawford. The trial court overruled the objections and admitted the documents. Mack read the results of the certificate of analysis to the jury and stated the results corroborated his belief that the substance was cocaine.

Deener testified the substance at issue was not his and must have been planted by police. He stated that after he placed the cigarette pack on the table, Mack twice left the room. The second time Mack returned, he was holding something in his hand and said it was cocaine he found in the cigarette pack. Deener told Mack that was not true because the cigarette pack had been on the table the entire time.

The jury convicted Deener at the second trial. Deener pled true to two enhancement paragraphs. The jury found the enhancement paragraphs true and assessed Deener's punishment at fourteen years' imprisonment.

DISCUSSION

A. Confrontation Clause

The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. This procedural guarantee is applicable in both federal and state prosecutions, Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and bars the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine him. Crawford, 541 U.S. at 59, 124 S.Ct. 1354.

In his first issue, Deener argues that Crawford, which was decided some six months after the legislature enacted articles 38.41 and 38.42, makes clear that procedures set forth in those statutes violate the Confrontation Clause set forth in the Sixth Amendment to the United States Constitution. Deener does not argue the State failed to comply with the statutory procedures. Moreover, we note Deener does not argue that he, in fact, timely objected to the State's use of the documents in the time and manner prescribed by the statutes or that articles 38.41 and 38.42 place an unreasonable burden on his ability to exercise his rights under the Confrontation Clause.

Deener argues that admitting the documents pursuant to articles 38.41 and 38.42 violated the Sixth Amendment and Crawford because the statutes do not require the showings mandated by Crawford and the Sixth Amendment — unavailability of the witnesses and that the defendant had a prior opportunity to cross-examine them. Further, Deener argues that the State failed to make these showings at trial. The State does not dispute these points; the statutes clearly do not require the showings mandated by Crawford and the Sixth Amendment, and the State did not show the witnesses were unavailable and that Deener had a prior opportunity to cross-examine them. Instead, the State makes two arguments.

First, the State asserts the Sixth Amendment (and thus Crawford) does not apply because the chain of custody affidavits and the certificate of analysis are not "testimonial" in nature. The State argues that Crawford allows lower courts to define "testimonial" according to circumstances that could not be anticipated by the Court in Crawford, and that articles 38.41 and 38.42 effectuate the right to confront witnesses because the statutory scheme provides "a means to force the State to prove the pertinent issues by live testimony or not at all."

We recognize Crawford declined to provide a comprehensive definition of "testimonial." However, it noted three formulations of "core" testimonial evidence: (1) "ex parte in-court testimony or its functional equivalent," such as affidavits, custodial examinations, prior testimony not subject to cross-examination, or "similar pretrial statements that declarants would reasonably expect to be used prosecutorially"; (2) "extrajudicial statements" of the same nature "contained in formalized testimonial materials"; and (3) "statements 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." Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354; see Wall v. State, 184 S.W.3d 730, 736 (Tex.Crim.App.2006). We conclude the affidavits and certificate at issue fall squarely within all three of these categories and are thus "testimonial" within the meaning of the analysis set forth in Crawford.

The State's second argument is that, even if the chain of custody affidavits and certificate of analysis are testimonial in nature, Deener forfeited his right of confrontation regarding them when he failed to file a written objection to their use not later than the tenth day before his trial began. See TEX.CODE CRIM. PROC. ANN. arts. 38.41, § 4; 38.42, § 4. The record shows the affidavits and certificate were filed more than twenty days before the first trial began and were still on file when the second trial began. Further, it is undisputed that Deener never — before the first or the second trial — filed written objections to the use of the documents as required by the statutes.

Deener's position is that articles 38.41 and 38.42, enacted prior to the Crawford decision, cannot "trump the Constitution of the United States." He asserts that under the classification used in Marin v. State, 851 S.W.2d 275 (Tex.Crim.App.1993),¹ confrontation rights are "waivable-only" rights; thus he argues a defendant cannot waive his right to confront witnesses unless he does so expressly on the record. He contends his failure to object to the affidavits and certificate before trial — pursuant to the statutes — was not an express waiver of his right of confrontation.

It is axiomatic that a statute cannot contravene the United States Constitution. However, we disagree that Deener's rights under the Confrontation Clause are "waivable only," and thus not subject to the requirement that he object in order to protect them.

Marin did not involve the right of confrontation; but it was a watershed decision in the law of preservation of error. Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim.App.2002). It recognized three types of rights in our system and different means of preserving those rights. Marin, 851 S.W.2d at 279. "Systemic (or absolute) requirements," such as jurisdiction of the person and subject matter, are laws the system must implement even if the parties wish otherwise. Mendez v. State, 138 S.W.3d 334, 340-41 (Tex.Crim.App. 2004). Waivable-only rights are those rights that must be recognized unless affirmatively waived on the record. Id. They include the...