TIMI YVETTE HERRING, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed April 28, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01699-CR
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TIMI YVETTE HERRING, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 5
Collin County, Texas
Trial Court Cause No. 005-80389-07
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OPINION
Before Justices Moseley, Bridges, and Fillmore
Opinion By Justice Fillmore
        The trial court found appellant Timi Yvette Herring guilty of driving while intoxicated with an open container of alcohol and sentenced Herring to 90 days' confinement in the Collin County jail, probated for twelve months, and assessed a $500 fine. In two issues, Herring asserts the trial court erred by admitting the results of a blood alcohol concentration test conducted on a sample of Herring's blood as well as a certificate of analysis and chain of custody affidavit related to the testing of Herring's blood because (1) the documents violated Herring's right to confront the witnesses against her, and (2) the State failed to establish the qualifications of the person who conducted the blood draw. We affirm the trial court's judgment.
 
Background
 
        Officer Kris Tyler stopped Herring for running a stop sign. He smelled alcohol on Herring's breath and noticed Herring's eyes were bloodshot and watery. According to Tyler, Herring admitted she had been drinking and failed field sobriety tests. Herring consented to a breath intoxilyzer test, but the result showed “interference.” After Herring consented to a blood draw, Tyler transported her to a local hospital and requested a blood draw.
        On July 30, 2007, the State gave notice to Herring's counsel that a certificate of analysis and chain of custody affidavit (the affidavit) for Herring's blood test results had been filed. Herring did not file any objections to the affidavit or the results of the blood test. At trial on September 18, 2008, the State offered the affidavit and a laboratory report indicating the results of the testing performed on the sample of Herring's blood showed a blood alcohol level of 0.12. Among other objections, Herring objected the blood test results violated her right to confront the witnesses against her and that the State failed to lay the proper predicate for admission of the results by failing to establish a registered nurse in good standing conducted the blood draw. The trial court admitted the results of the blood test and found Herring guilty.
Confrontation Clause
 
        In her first issue, Herring asserts the admission of the blood test results and the affidavit violated her right to confrontation under the Sixth Amendment to the United States Constitution.
        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 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 the witness. Crawford v. Washington, 541 U.S. 36, 54 (2004). Affidavits reporting the results of forensic analysis are testimonial statements, and the analysts who performed the tests are witnesses for purposes of the Sixth Amendment. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009); see also Deener v. State, 214 S.W.3d 522, 526 (Tex. App.-Dallas 2006, pet. ref'd) (chain of custody affidavit and certificate of analysis are testimonial for purposes of right to confrontation). Therefore, absent a showing the analyst was unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine the analyst, a defendant is entitled to be confronted with the analyst at trial. Melendez-Diaz, 129 S. Ct. at 2532. However, a state may enact procedural rules in the form of notice-and-demand statutes that “require the prosecution to provide notice to 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.” Id. at 2541.
        Texas's notice-and-demand statute is contained in articles 38.41 and 38.42 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. arts. 38.41, 38.42 (Vernon 2005). Certificates of analysis of physical evidence and chain of custody affidavits are admissible without a witness appearing at trial if they are filed and served on the opposing party more than twenty days before trial begins and the opposing party 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). A defendant waives any objection under the Confrontation Clause to the admissibility of the certificate of analysis or chain of custody affidavit by failing to timely object under the statute. Deener, 214 S.W.3d at 528; see also Melendez-Diaz, 129 S. Ct. at 2542 (“There is no conceivable reason why [the defendant] cannot similarly be compelled to exercise his Confrontation Clause rights before trial.”).
        Here, the State filed the blood test results and the affidavit more than twenty days before trial began. Tex. Code Crim. Proc. Ann. art. 38.41, § 4, art. 38.42, § 4. Herring did not timely object to the affidavit or the blood test results. See id. Accordingly, she waived any objection that the admission of the affidavit or the blood test results addressed by the affidavit violated her confrontation rights. Deener, 214 S.W.3d at 528. We overrule Herring's first issue.
Qualifications of Person Conducting Blood Draw
 
        In her second issue, Herring argues the State failed to lay the proper predicate for the admission of the blood test results and the affidavit because there was no evidence the person who drew Herring's blood was qualified to do so under section 724.017 of the transportation code. See Tex. Transp. Code Ann. § 724.017 (Vernon Supp. 2009) (“Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter.”). However, absent a timely objection to “the use of” the documents, a timely filed certificate of analysis to establish the results of a laboratory analysis of physical evidence and a chain of custody affidavit are admissible without a witness appearing at trial. Tex. Code Crim. Proc. Ann. art. 38.41, §§ 1, 4, art. 38.42, §§ 1, 4. Because Herring failed to timely object to the use of the affidavit and the related blood test results, she waived any objection to the admission of these documents, including any complaint under section 724.017 of the transportation code about the qualifications of the person who conducted the blood draw. See Tex. R. App. P. P. 33.1; Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (almost every right, whether constitutional or statutory, may be waived by failing to object); Deener, 214 S.W.3d at 527.   See Footnote 1  We overrule Herring's second issue.         We affirm the trial court's judgment.
 
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
081699F.U05
 
 
 
 
Footnote 1 We note, however, that Herring's failure to timely object to the affidavit did not preclude her from challenging the accuracy of the blood test results by summoning a witness or introducing admissible evidence relevant to the results of the analysis or the chain of custody of the blood sample. Tex. Code Crim. Proc. Ann. art. 38.41, § 2, art. 38.42, § 2.