Deener v. State
In Deener v. State, 214 S.W.3d 522 (Tex. App.--Dallas 2006, pet. ref'd), the Dallas Court of Appeals held that the statutory procedures in Tex. Code Crim. Proc. Articles 38.41 and 38.42 did not violate the defendant's right of confrontation.
In Deener, the State filed and served a certificate of analysis and chain of custody affidavits pursuant to Articles 38.41 and 38.42.
The defendant failed to file written objections to the certificate and affidavits. Id. at 525. At trial, the defendant objected to the admission of the documents on hearsay and right of confrontation grounds. The trial court overruled the defendant's objections and admitted the documents. Id.
On appeal, the defendant asserted that Articles 38.41 and 38.42 violated his confrontation rights. Id. at 526.
The Dallas Court first concluded that the certificate of analysis and chain of custody affidavits at issue were "testimonial" under Crawford. Id.
The court then addressed whether Articles 38.41 and 38.42 violated the Confrontation Clause and Crawford because, as a condition to admissibility, the statutes did not require showings that the witness was unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine the witness. Id.
In Deener, the defendant relied on Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), in asserting that the right of confrontation was a "waivable-only" right and that, therefore, a defendant could not waive the right unless he did so expressly on the record.
The defendant contended that his failure to file written objections to the certificate of analysis and chain of custody affidavits as required by Articles 38.41 and 38.42 did not constitute an express waiver of his right of confrontation. Id. at 527.
However, the Deener court noted that Marin did not involve the Sixth Amendment right of confrontation. Id.
After conducting a thorough analysis of the issue, the court concluded that the right of confrontation is a forfeitable right as opposed to a "waivable-only" right and that, therefore, the right of confrontation must be preserved by a timely and specific objection at trial. Id.
In Deener, the court held that, because the right of confrontation is forfeitable, the defendant had not shown that Articles 38.41 and 38.42 violated his constitutional right of confrontation. Id. at 528. The court also held that the defendant had forfeited his right of confrontation by failing to file a written objection to the use of the certificate of analysis and chain of custody affidavits as required by Articles 38.41 and 38.42. Id.