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THE TEXAS PROSECUTORFOCUS ON …By Ken SparksCounty & District Attorney in ColumbusToo many cases andnot enough chemists!A prosecutor’s simple question about testimony byaffadavit sparks new legislation that promises to save thestate money and prosecutors time.New Code of CriminalProcedure Article 38.41,allowing the testimony by affidavitof a chemist who analyzes evidenceon behalf of a law enforcement agency,found its way into our statutes because aprosecutor on my staff who used topractice law in Virginia asked a question.Assistant County Attorney JayJohannes and I were preparing for a jurytrial in a major drug delivery case andagonizing over whether we would beable to secure the attendance of thechemist who had to travel more than 90miles to testify. The chemist told us hehad been subpoenaed in eight othercounties on that same date. We experiencethis problem every time we need achemist to testify.We were in a quandary because weare part of a four-county judicial districtand have only eight felony jury trialdates per year. The defense attorney hadbeen dodging earlier trial settings, andwe did not want to reset this case. Jayasked, “Why don’t we just file an affidavit?”He explained that Virginia had alaw allowing the admission of a certificateof analysis to which the chemistattests. I explained, “This ain’t Virginia,”and went on with trial preparations.The chemist managed to juggle hisappearances and testify in our case. Afterthe trial was over (55-year sentence,thank you very much for asking), Jayshowed me the Virginia statute. Ithought it over and assigned the matterto my intern, Dawn Dittmar, a law studentworking in my office for free to getsome experience and an additional lineon her resume. She researched the issueand handed me a three-ring bindercontaining the laws of 19 other stateswith similar statutes. The SouthCarolina statute also authorized the filingof an affidavit to prove chain of custody.I analyzed all the statutes and cobbledtogether the best parts of each oneand drafted what became CCP Articles38.41 and 38.42. I drafted sample affidavitsto be included in the statutes toprevent appeals related solely to the sufficiencyof the affidavits.Other than solving the problem ofchemists needing to be in several countiesat once, I drafted this legislation toalleviate a backlog in the analysis ofdrugs submitted to the DPS and otherlabs. DPS chemists spent 4,018 hoursmaking 798 court appearances in controlled-substancecases in 2002. Whilechemists were in court, drugs were notanalyzed, resulting in a backlog. Thisbacklog keeps prisoners in jail awaitingthe results of lab reports before cases canbe presented to a grand jury. It mademuch more sense for a chemist to analyzecases instead of driving to variouscounties and appearing in court to testifyto the uncontested identity of a controlledsubstance.The chain-of-custody affidavit wasimportant in rural counties like minethat experience a lot of turnover withunderpaid peace officers who go elsewherefor higher pay. Many times theofficer played a minor role in the caseand simply dropped some evidence offat the evidence room. Trying to get theofficer back for five minutes of trial testimonywas a struggle.PAGE 18
JANUARY/FEBRUARY 2004All my reasoning and a draft of thelegislation were sent to various prosecutorsin my area for comments and suggestions.Then TDCAA’s own legislativewhiz, Shannon Edmonds, reviewed mywork and helped me polish it somemore. Shannonobtained sponsors inthe House and Senateand helped shepherdthe bill through thelegislative process.Jay and Iappeared and testifiedbefore the SenateCriminal Justice committee.Prior to ourtestimony we wereessentially told that wecould agree to a substitutebill allowing anobjection by thedefense, or the legislationwould not bevoted out of committee. Thinking thathalf a loaf was better than none, weagreed. It was voted out of the Senatecommittee and sent to the House ofRepresentatives. The DPS provided thecommittee with its estimate that adoptionof the legislation would save theState over $190,000 annually.After the publicity about theHouston Police Department laboratorycreated an unfavorable climate andalmost derailed the bill, it was back ontrack to be adopted when theDemocrats fled to Oklahoma. On theabsolute last day that legislation couldbe considered, Shannon e-mailed meThe chain-ofcustodyaffidavit wasimportant inrural countieslike mine thatexperience alot of turnoverwith underpaidpeace officerswho goelsewhere forhigher pay.with the good news that it had passedthe House. For all his hard work, myreply e-mail simply said, “Shannon, youda man!”I am presently working with theDPS to combine the lab report, certificateof analysis, andchain-of-custody affidavitinto one documentthat could be sent out ineach case just as the labreport is sent now. Uponreceipt, the prosecutorshould file the affidavitwith the clerk of thecourt and send a copy tothe defendant’s attorneywith notice of filing inanticipation of it beingadmitted without objection.Even when theyagree with the laboratoryanalysis and chain of custody,most defense attorneys are reluctantto stipulate when they are courtappointed.This legislation relieves themof the need to make that decision.I hope that widespread use of theseaffidavits will speed up the backlog ofcases awaiting analysis, eliminate resetsbecause chemists are spread too thin,and make our job easier to perform.Editor’s note: The legislation itself containslanguage for the affidavits. Find electroniccopies of them in Microsoft Word formaton our web site, www.tdcaa.com. Look inthe section titled, “Forms, Briefs, Et Al.”Continued from page 17Evidentiarynotice (cont’d)59 See id.60 See id.61 See supra at 8-10.62 Id.63 See id at 282.64 See Rodgers v. State, 111 S.W.3d 236, 248 (Tex.App.—Texarkana 2003, no pet.); Apolinar, 106S.W.3d at 414; Jounson v. State, 84 S.W.3d 726, 729(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d);Roethel v. State, 80 S.W.3d at 281; Brooks v. State,76S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.]2002, no pet.); Patton v. State, 25 S.W.3d 387, 394(Tex. App.—Austin 2000, pet. ref’d); see alsoMcQueen v. State, 984 S.W.2d 712, 716 n.2 (Tex.App. — Texarkana 1998, no pet.).65 See Roethel, 80 S.W.3d at 282.66 See id. at 281-82; see also Apolinar, 106 S.W.3dat 414.67 See Roethel, 80 S.W.3d at 282; see also Apolinar,106 S.W.3d at 414-15.68 See King v. State, 953 S.W.2d 266, 271 (Tex.Crim. App. 1997); see also Rodgers, 111 S.W.3d at248 (analyzing harm from admission of evidence inviolation of §3(g) as to whether the evidence hada substantial and injurious effect on the verdict);Johnson, 84 S.W.3d at 730 (same); Brooks, 76S.W.3d at 426 (same); Waltmon, 76 S.W.3d at 161(same).PAGE 19
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Texas District & County Attorneys Association

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