Williams, Andrew Lee

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1199-17
ANDREW LEE WILLIAMS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
BRAZORIA COUNTY
K ELLER, P.J., filed a concurring opinion.
The Court correctly identifies the issue in this case as whether, in a certificate of analysis
under Article 38.41,1 “someone other than the analyst who conducted the testing can serve as the
affiant.” The Court correctly answers this question “yes.” I do not join the Court’s opinion because
it addresses issues that are not before us, are not briefed by the parties, and are not necessary to the
resolution of the case.
First, the Court does not need to consider the meaning of “substantial compliance.” Because
1
TEX . CODE CRIM . PROC. art. 38.41.
WILLIAMS CONCURRENCE — 2
the only defect alleged by Appellant is not a defect at all, what “substantial compliance” means has
no bearing on the outcome of this case. The parties address only § 5 of the statute and not § 3. The
Court’s holding that “substantial compliance” requires satisfying all seven requirements set out in
§ 3 is not an issue addressed by the parties.
Second, the Court says that the certificate of analysis in this case is missing at least one item
of information required by § 3. Again, Appellant has never claimed that the State failed to comply
with § 3.
Third, even if Appellant had complained in this Court about § 3, the Court concludes that
Appellant forfeited that claim because he failed to raise it at trial. If he has forfeited a § 3 claim, we
do not need to address the merits of a § 3 claim.
And finally, it is not clear to me that the Court’s holding on the meaning of “substantial
compliance” is correct. I cannot think of an instance when, under the Court’s holding, “substantial”
compliance would not also be full compliance. And, of course, we have no guidance from the parties
on what “substantial compliance” means with respect to § 3.
I agree with the Court’s holding that Article 38.41 does not require the affiant to be the
analyst. I would not go further than that holding to comment on matters that are not before us. Such
statements are dicta.2 I concur in the Court’s judgment.
Filed: October 9, 2019
Publish
2
See State v. Ross, 573 S.W.3d 817, 827 & n.59 (Tex. Crim. App. 2019).