Cole v. State

OPINION ON STATE’S MOTION FOR REHEARING

PER CURIAM.

In our original opinion (see page 799), we addressed the “the sole issue of whether the court of appeals erred in holding that the trial court correctly admitted hearsay evidence concerning the results of chemical *807 tests performed by an absent Department of Public Safety chemist pursuant to Rule 803(6) of the Texas Rules of Criminal Evidence”. 1 Based largely upon the Second Circuit’s holding in United States v. Oates, 560 F.2d 45 (2nd Cir.1977), we held that the exclusionary provision contained in Texas Rule of Criminal Evidence 803(8)(B) 2 , the public records exception to the hearsay rule, precluded admission of the laboratory reports under Rule 803(6). 3 The State filed a Motion for Rehearing 4 , primarily asking that we reconsider our holding in light of widespread judicial and academic criticism leveled at the Oates decision. In this opinion, we will clarify portions of our original opinion in response to issues raised in the State’s Motion for Rehearing.

I.

Admissibility of the Reports Under Rule 803(8)(B)

Before addressing the applicability of Rule 803(6), we initially concluded in our original opinion that the subject reports did not “satisfy the requirements of TRCE 803(8), since the reports were ‘matters observed’ by ‘other law enforcement personnel"'. (See page 805). In its Motion for Rehearing, the State contends that DPS chemists are not “law enforcement personnel” within the meaning of Rule 803(8)(B). The State further asserts that the analysis and testing procedures conducted by chemists in a DPS laboratory are of an “unambiguous factual nature” and the reports are therefore not the type of documents intended to fall within the exclusionary provision of Rule 803(8)(B). 5 After careful *808 examination of the State’s grounds for rehearing in this regard, we conclude the issue was correctly decided in our original opinion. However, in light of the State’s Motion for Rehearing, further clarification is called for on this issue. 6

The State points to decisions of federal courts and other state courts which hold that certain types of documents are admissible because they are determined to be “routine, objective reports prepared by officials with no inherent motivation to distort the results.” 7 While we acknowledge the existence of considerable authority holding that chemical analyses and certain laboratory tests and reports are routine and objective in nature and therefore admissible, we are not convinced of the same here. Additionally, the opinions of many courts that hold laboratory reports to be generally objective and routine in nature are often inadequate in their consideration of the adversarial and investigatory context out of which many such scientific reports arise. See, e.g., Manocchio v. Moran, 919 F.2d 770 (1st Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1695 , 114 L.Ed.2d 89 (1991) (in finding autopsy reports not excluded by Rule 803(8)(B), opinion devoid of factual discussion as to adversarial context in which report was prepared); State v. Damon, 214 Conn. 146 , 570 A.2d 700 (1990), cert. denied, — U.S. -, 111 S.Ct. 65 , 112 L.Ed.2d 40 (in finding autopsy report admissible, no discussion of adversarial environment in which report prepared); Howard v. United States, 473 A.2d 835 (D.C.App.1984) (in finding report of DEA chemist admissible, no factual discussion of potential adversarial influences).

The State’s assertion that the analyses here were “objective, routine, scientific determinations of an unambiguous factual nature” implies that the conducting chemist-toxicologist merely fed data into a computer and mechanically read a printout of definitive results, absent any element of human error or individual interpretation. Examination of the testimony of Jim Thomas, the supervising chemist who testified at appellant’s trial, reveals that at least the hair analysis conducted here was remarkably subjective in nature as well as remarkably imprecise and subject to individual interpretation. 8 The following excerpts of *809 Thomas’ testimony are illustrative on this point.

When asked to describe what a forensic chemist does, Thomas testified that a forensic chemist analyzes data by making comparisons:

A forensic chemist will take evidence that is admitted to our laboratory concerning a criminal investigation, this could be evidence such as trace evidence, like blood, or hair and fibers, glass, paint; we will take those samples, and usually it is a comparison with a known sample. We mil take one sample and compare it to the known sample.

(emphasis added).

******

Q. Let me ask you this, Mr. Thomas, in effect, what you did was put both these hairs under microscopes and look at them, didn’t you?

A. We have a comparison microscope to where you can put one sample on one side and one on the other and you view them simultaneously side by side.

Q. So the purpose of the test is to eyeball and see if, in your opinion, they look alike?

A. The purpose of the test is to look at the characteristics of each hair side by side, and see if they are comparable, that’s right.

Language used by Thomas in describing the process involved in conducting a hair analysis reveals the imprecise nature of that process:

The hair comparison is more of a comparison of characteristics, and you are just seeing if there are any exclusions to this having been the individual, or whether it is still within the realm of possibility, that hair being from an individual.

As far as hair samples are concerned, there are variations of the characteristics within one individual’s head of hair. Sometimes those variations themselves are specific enough where you can make a more positive conclusion, but since there are so many variations within one individual and between individuals, you are — with hairs, you are just taking one sample and comparing it to another sample, seeing how the characteristics compare microscopically, and seeing if it is within the realm of possibility that this hair could have been contributed by this individual, or whether the characteristics are such that you can exclude the individual.

(emphasis added). We cannot conclude that the reports here were “objective, routine, scientific determinations of an unambiguous factual nature.”

The subjective nature of the testing process is not the lone factor for consideration in determining the admissibility of a report under Rule 803(8)(B)’s exclusionary provision. Substantial attention should be given to the adversarial context in which the relevant tests were conducted. 9 See U.S. v. Puente, 826 F.2d 1415, 1418 (5th Cir.1987) (relevant inquiry is whether information was recorded as part of routine procedure in non-adversarial setting); Orozco, 590 F.2d at 793-94 (records of a routine, nonadversarial nature admissible where maker has no motive to fabricate). A DPS laboratory is a uniquely litigious *810 and prosecution-oriented environment. The subject reports appear on the letter.head of the “Department of Public Safety, Crime Laboratory Division”, bearing the seal of the State of Texas to the right of the letterhead and a law enforcement insignia to the left. The “Prosecuting Attorney” was carbon copied on the reports and the reports close with the statement that “We are returning this evidence to the Lubbock Police Department property room”, in an apparent effort to document the chain of custody. When asked to describe what a “forensic chemist” does, Thomas stated that “a forensic chemist will take evidence that is admitted to our laboratory concerning a criminal investigation...”. (emphasis added). We conclude that we were wholly correct in holding in our original opinion that:

The items upon which the tests were performed were collected as part of investigating a crime, and the reports prepared by the DPS chemist were unquestionably a product of evaluating the results of that investigation. Furthermore, and perhaps most importantly, the reports were not prepared for purposes independent of specific litigation, nor were they ministerial, objective observations of an unambiguous factual nature. Therefore, we find that the letter reports in the instant case fail to satisfy the requirements of TRCE 803(8)(B), since they constitute “matters observed” by “other law enforcement personnel,” and are therefore inadmissible.

II.

Admissibility of the Reports Under Rule 803(6)

The second issue addressed in our original opinion was “whether hearsay evidence which does not qualify as an exception under TRCE 803(8) may nevertheless qualify under TRCE 803(6) as a business records exception”. Cole, slip op. at 10. We held that “it would be inconsistent with the intended effect of [Rule 803(8)(B) to] allow such evidence to be admitted under TRCE 803(6) as a business record.” We conclude this issue was correctly decided in our original opinion, but write to clarify our original opinion and address issues raised in the State’s Motion for Rehearing.

The State argues that a portion of the Oates opinion relied upon by this Court in our original opinion has since been retracted, points to considerable authority rejecting Oates’ (and therefore our original opinion’s) construction of Rules 803(6) and 803(8)(B), and asserts that our holding does not take into account all of the relevant legislative history. 10

In its lengthy opinion in Oates , the Second Circuit concluded that Congress intended that reports failing to qualify as admissible under 803(8)(B) are also inadmissible under 803(6) “or any of the other exceptions to the hearsay rule.” Oates, 560 F.2d at 77 (emphasis added). This portion of the Oates opinion has been widely criticized for its over-reaching implications. Recognizing its own error, the Second Circuit stated in a later opinion that “it is obvious that not all of the hearsay exceptions provided by Rules 803 and 804 were at issue in Oates” and therefore “the Oates language [is] dictum to the extent that it encompassed Rule 803(10)”. United States v. Yakobov, 712 F.2d 20, 26 (2nd Cir.1983). Although we favorably quoted some of the overly broad portions of the Oates opinion in our original opinion, we did not intend that our original opinion be construed to speak to admissibility of law enforcement *811 documents under hearsay exceptions apart from Rules 803(8) and 803(6). However, we conclude that our holding with respect to those Rules is correct. We have reexamined the relevant legislative history and remain convinced that it supports our holding on original submission that documents inadmissible under 803(8)(B) may not be admitted under 803(6). 11 However, we emphasize that our holding only pertains to the use of Rule 803(6) as a “back door” to evidence inadmissible under Rule 803(8)(B). 12

The State claims that our conclusions based upon the legislative history are “plainly contradicted by clear language in that history to the contrary.” In support of its assertion, the State points to the following statement, made during discussions of Rule 803(5) and appearing in Senate and House Reports by the Committee on the Judiciary:

a memorandum or report, although barred by this Rule, would nonetheless be admissible if it came within another hearsay exception ... This principle is deemed applicable to all hearsay rules.

This statement reiterates the general rule that evidence which is inadmissible under one hearsay exception may often be admissible under another exception. We are not persuaded that a general statement made during discussions on Rule 803(5), should be construed to override congressional intent evidenced by specific statements made during discussions which addressed Rule 803(8)(B), the very rule at issue here. While we acknowledge the existence of that general rule, many, if not most, general rules are vulnerable to numerous exceptions thereto and we cannot ignore clear legislative intent to recognize such an exception.

The State also claims that statements made during congressional discussions on Rule 803(8) indicate that the Rule’s exclusionary provision was only intended to “prevent the admission of offense reports in place of the testimony of the officer concerning his observations at the scene of the crime or arrest.” We disagree with so narrow an interpretation of this provision. Rather than exclude only “offense reports” pertaining to observations at the scene of the crime or arrest, the plain language of Rule 803(8)(B) is broad in scope, excluding reports that set forth matters observed by law enforcement personnel. Moreover, although several statements in the legislative history refer to “offense reports” and the “policeman on the beat,” the Rule’s broad language, read in light of the legislative history as a whole, leads to the conclusion that Congress’ broader concern was with the potentially prejudicial influence of an adversarial setting and with a defendant’s confrontation rights. Representative Hun-gate expressed this more general concern when presenting the Conference Report to the House for final consideration:

Police reports, especially in criminal cases, tend to be one-sided and self-serv *812 ing. They are frequently prepared for the use of prosecutors, who use such reports in deciding whether to prosecute,

(emphasis added) (speaking on Senate’s proposal that would have allowed such reports to be admitted if the officer was unavailable for certain specified reasons). Often in cases involving physical evidence, a prosecutor’s decision to prosecute depends upon the results of a laboratory report. Here, the State’s decision to prosecute appellant very likely turned upon the results of the subject reports. Accordingly, we think our original opinion correctly decided that the laboratory reports were the type of reports intended by Congress to be excluded from evidence in the absence of the conducting chemist. 13

Finally, the State argues that the facts in Oates concerning the reports and the nature of the testifying chemist are critically distinguishable from the instant case and also that the Second Circuit’s opinion in Reardon v. Manson, 806 F.2d 39 (2nd Cir.1986), ce rt. denied, 481 U.S. 1020 , 107 S.Ct. 1903 , 95 L.Ed.2d 509 (1987) is more factually controlling than Oates . The State points out that in Oates the chemist who testified did not know the chemist who conducted the tests and prepared the reports, nor had the testifying chemist ever seen the conducting chemist perform any chemical tests. The State also points to discrepancies in the reports in Oates which the testifying chemist was unable to explain. 14 The State argues that all of these factors, which were not present in the instant case, played an important role in the Oates court’s decision to hold the documents inadmissible:

Oates addressed the admissibility of documentary evidence, specifically, reports of a United States Customs Service chemist. The appellant in Oates contended that the reports should have been excluded as hearsay and, alternatively, that admission of the reports was violative of the appellant’s confrontation rights under the Sixth Amendment to the United States Constitution. Oates, 560 F.2d at 63 . The court decided to base its decision upon statutory grounds rather than constitutional grounds, id. at 75 , holding that the reports were hearsay and were not admissible as exceptions under Rules 803(8)(B) or 803(6). Id. at 65-84 . In reaching this conclusion, the court acknowledged the existence of those factors, described above, that rendered the reports questionable, but ex *813 pressly chose to assume that the reports were trustworthy and discounted any questionable factors in reaching its decision that the reports were inadmissible under 803(8) and therefore were also inadmissible under 803(6). Id. at 75 . Accordingly, we reject the State’s contention that the troubling characteristics concerning the report and the testifying chemist in Oates render our reliance on that case misplaced. 15

The State further argues in its Motion for Rehearing that the Second Circuit’s opinion in Reardon v. Manson, 806 F.2d 39 (2nd Cir.1986), cert. denied, 481 U.S. 1020 , 107 S.Ct. 1903 , 95 L.Ed.2d 509 (1987), implied that Oates would have been decided differently if the reports at issue had been admitted through the testimony of the laboratory supervisor. The State contends, therefore, that because the reports in the instant case were offered through the testimony of the supervising chemist, they were properly admitted at trial. We disagree with the State’s assessment of Reardon and its alleged applicability to Oates or to the issue of documentary evidence in this case. Reardon addressed the admissibility of testimonial evidence, a chemist’s drug-identification testimony, while Oates and our original opinion addressed admissibility of documentary evidence, a chemist’s reports. The court in Reardon distinguished its facts from those in Oates :

In the first place, Oates was not decided on constitutional grounds but on an interpretation of the Federal Rules of Evidence which are not at issue herein. In the second place, Oates did not, as here, concern the admission of an expert’s opinion, but dealt instead with a chemist’s report and worksheet which the prosecution attempted to authenticate through a witness who had no connection with either the documents or the person who prepared them.

(citations omitted). Reardon, 806 F.2d at 42 . Given that Reardon did not involve the admissibility of documents or the applicability of the Rules of Evidence, Reardon has no authoritative value for purposes of Oates or for purposes of determining the admissibility of the reports in the instant case. 16

We find the State’s Motion for Rehearing without merit. The judgment of the court of appeals is reversed and this cause is remanded to that court for a harm analysis consistent with our original opinion and with this opinion, pursuant to TEX. R.APP.P. 81(b)(2).

BENAVIDES, J., not participating.

. At trial appellant objected to the admission of both the chemist’s reports and the testimony of the supervising chemist concerning findings contained in the reports on the grounds of hearsay. The trial court admitted the reports and the supervising chemist’s testimony over appellant’s objections.

. Specifically, we held, following Oates , that the exclusionary provision of 803(8)(B), together with the language of 803(8)(C), indicated a clear legislative intent for absolute inadmissibility of law enforcement and evaluative reports against defendants in a criminal case. Texas Rules of Criminal Evidence 803(8)(B) and (C) provide, in relevant part:

Rule 803. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth ... (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other law enforcement personnel, or (C) against the state, factual findings resulting from an investigation made pursuant to authority granted by law; unless the sources of information or other circumstances indicate a lack of trustworthiness.

(emphasis added).

. Texas Rule of Criminal Evidence 803(6) provides as follows:

Rule 803. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near

the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. "Business” as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

. Separate Motions for Rehearing were filed on behalf of the State by both the Criminal District Attorney of Lubbock County and the State Prosecuting Attorney. Both motions were granted. References in this opinion to the “Motion for Rehearing” refer to both motions collectively and references in this opinion to the "State” refer to the State, as represented by both the District Attorney and by the State Prosecuting Attorney.

. The Second Circuit’s opinion in Oates has been construed by some courts as holding that Rule 803(8)(B) excludes the admission of all law enforcement reports, not just certain types of reports. Some of the criticism directed at Oates has been based upon this construction of its holding. Quezada, 754 F.2d at 1193; United States v. Hemandez-Rojas, 617 F.2d 533, 535 (9th Cir.1980); see also JACK B. WEINSTEIN & MARGARET A. BERGER, 4 WEINSTEIN’S EVIDENCE, UNITED STATES RULES § 803(8)[04] (1991). We did not intend that our original opinion, nor do we intend that this opinion, be construed to hold that all law enforcement reports are inadmissible under Rule 803(8)(B).

. The State also argues that if the subject reports are not admissible under Rule 803(8)(B) and (C), then they are admissible under Rule 803(8)(A). We disagree. Texas Rule of Criminal Evidence 803(8)(A) provides that the hearsay rule will not exclude “[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies setting forth (A) the activities of the office or agency”. This rule has been construed to “allow admission of official records and reports prepared by an agency or government office for purposes independent of specific litigation." United States v. Stone, 604 F.2d 922, 925 (5th Cir.1979) (emphasis added). Clearly, the reports at issue were not made "for purposes independent of specific litigation".

. Of the 16 cases cited by the State in support of this contention, seven do not address reports containing scientific analysis, but pertain to the admissibility of such documents as a United States Marshall’s return of service, United States v. Trabajadores, 576 F.2d 388 (1st Cir.1978), an INS warrant of deportation, United States v. Quezada, 754 F.2d 1190 (5th Cir.1985), a pen packet, United States v. Vidaure, 861 F.2d 1337 (5th Cir.1988), cert. denied, 489 U.S. 1088 , 109 S.Ct. 1551 , 103 L.Ed.2d 854 (1989), a record of building code violations which was determined by the court not to have been prepared by "law enforcement personnel”, United States v. Hansen, 583 F.2d 325 (7th Cir.1978), cert. denied, 439 U.S. 912 , 99 S.Ct. 283 , 58 L.Ed.2d 259 , an INS immigration application, United States v. Dominguez, 835 F.2d 694 (7th Cir.1987), a computer record of cars reported stolen, United States v. Enterline, 894 F.2d 287 (8th Cir.1990) and a note on a fingerprint card as to where the print was lifted, United States v. Gilbert, 774 F.2d 962 (9th Cir.1985). Although the other cases cited by the State do address the admissibility of reports containing scientific test results and analysis and conclude that these documents are admissible, only two of the cases cited specifically address admissibility under Federal Rule of Evidence 803(8)(B) or a comparable state rule. State v. Best, 146 Ariz. 1 , 703 P.2d 548 (Ct.App.1985); State v. Huggins, 659 P.2d 613 (Alaska App.1982).

.The subject reports reflect the results of tests run to determine the presence of blood, seminal fluid, spermatozoa, and foreign hair and to determine blood type. Only the hair analysis process was described at trial. There was no testimony concerning the laboratory process used to determine the presence of blood, seminal fluid, spermatozoa or to determine blood type. We note that although other tests were run by the laboratory and were described by Thomas at trial, those tests were not specifically referred to in the reports.

. Attention to the adversarial context in which a document is generated is mindful of the "Palmer Doctrine”, which maintains that reports prepared in contemplation of litigation are inherently unreliable due to the maker’s bias and motivation to make misrepresentations and are therefore inadmissible. Palmer v. Hoffman, 318 U.S. 109 , 63 S.Ct. 477 , 87 L.Ed. 645 (1943). Police and governmental investigatory reports have been excluded on the basis of the Palmer Doctrine. See, e.g., Porter v. State, 578 S.W.2d 742, 746-47 (Tex.Cr.App.1979), cert. denied, 456 U.S. 965 , 102 S.Ct. 2046 , 72 L.Ed.2d 491 (1982) (letters and reports maintained by federal parole officer regarding defendant were not admissible as prepared in part with view toward revoking parole); Battee v. State, 543 S.W.2d 91, 92 (Tex.Cr.App.1976) (op. on reh’g) (evidence envelope which summarized the state’s case against defendant was inadmissible under Palmer doctrine); see also United States v. Bohrer, 807 F.2d 159 (10th Cir.1986); United States v. Smith, 521 F.2d 957, 965-76 (D.C.1975); United States v. Ware, 247 F.2d 698, 700 (7th Cir.1957); Hartzog v. United States, 217 F.2d 706, 709-10 (4th Cir.1954); see also Vincent Alexander, The Hearsay Exception for Public Records in Federal Criminal Trials, 47 ALB.L.REV. 699, 711-12 (Spring 1983).

. The State also argues that this Court’s decision in Crane v. State, 786 S.W.2d 338 (Tex.Cr.App.1990), decided two months after our original opinion, is "in apparent conflict with” our original opinion. In Crane , we held that a cassette tape of a radio conversation between a police officer and a dispatcher and a transcript of the tape were admissible under Rule 803(6), as business records. Id. at 351-52 . However, Crane is distinguishable from our holding on original submission because the tapes would not be excluded by Rule 803(8)(B) as they did not merely set forth the officer’s subjective report of "matters observed" about a particular event, but amounted to a contemporaneous recording of an event itself. Moreover, we also held in Crane that the recording was not offered for the truth of the matter asserted, but to show the circumstances surrounding the offense, to establish that the officer was acting in lawful discharge of his duty and as res gestae statements. Id. at 352 .

. We note that this is consistent with the current position of the Fifth Circuit. In United States v. Cain, the Fifth Circuit expressly followed Oates and held that an escape report from a federal correctional institution was inadmissible under Rule 803(8) and that “section (6) does not open a back door for evidence excluded by section (8)". United States v. Cain, 615 F.2d 380, 382 (5th Cir.1980). Later, in Quezada , the Fifth Circuit allowed the admission of an INS warrant of deportation under Rule 803(8)(B). Quezada, 754 F.2d at 1193-94 . In disapproving of the narrowness of the Oates decision, the Fifth Circuit noted that it had previously cited Oates with approval in Cain , but that it had only cited Oates for the proposition that a document which is inadmissible under 803(8)(B) may not he admissible because it satisfies 803(6). Thus, although the Fifth Circuit has disapproved of Oates’ overly broad implications, it nonetheless continues to follow Oates to the extent that Oates addressed the relationship between Rules 803(8)(B) and 803(6).

. We stress that we did not in our original opinion, nor do we here, hold that evidence inadmissible under 803(8)(B) may not be admitted under any other hearsay exception. The State apparently misinterprets our holding in our original opinion to this extent, as evidenced by the State’s contention that our holding “carried to its logical conclusion, leads to bizarre and far reaching results.” The State argues that under our construction of Rule 803(8)(B), even a defendant’s written confession would be inadmissible. This assertion indicates that the State interprets our holding on original submission far more broadly than it was intended.

. In his dissenting opinion, Presiding Judge McCormick cites three pre-rules cases for the proposition that laboratory reports of the type at issue in the instant case were admissible under former article 3737e. A review of the three cases cited, however, reveals that the admissibility of documentary evidence was not at issue. In all three cases, the court addressed the admissibility of testimony based upon laboratory reports, not the admissibility of the reports. Brooks v. State, 642 S.W.2d 791 (Tex.Cr.App.1982) (toxicologist could testify about test results obtained by a subordinate); Hodge v. State, 631 S.W.2d 754 (Tex.Cr.App.1982) (chemist may testify based upon laboratory reports, citing Kent); Kent v. State, 374 S.W.2d 671 (Tex.Cr.App.1963) (holding chemist “may testify from records of the laboratory as to the results thereof’). The dissenting opinion also refers to cases cited within the Kent opinion. A review of the cases cited by the court in Kent reveals that all of those cases involved admissibility of testimony rather than admissibility of reports. However, we note that two of those decisions indicated in dicta that the reports would be admissible under former article 3737e as business records. Leonard v. State, 278 S.W.2d 313 (Tex.Cr.App.1955); Jackson v. State, 262 S.W.2d 499 (Tex.Cr.App.1953). We do not in this opinion assert that such reports were not admissible under the former Business Records Act. Prior to the promulgation of the Texas Rules of Criminal Evidence, there was no exclusion of police and law enforcement reports of any kind. See Trussel v. State, 585 S.W.2d 736, 739 (Tex.Cr.App.1979) (deputy’s offense report was admissible as a business record under 3737e). Rule 803(8) now imposes such an exclusion. Rule 803(8)’s exclusionary provision does not "abridge, enlarge or modify the substantive right of a litigant.” Rather, Rule 803(8) impacts a procedural right, that is, the ability of a party to introduce certain kinds of documentary evidence.

. In Oates , the official typewritten report introduced at trial contained the conducting chemist’s signature. However, a copy of that report given to the defense beforehand, did not contain a signature. Also, a notation pertaining to the chain of custody appeared on both the official report and on the chemist’s worksheet. However, the notation on the official report had been crossed out, but was still legible. The testifying chemist was not able to account for these discrepancies.

. Although the court discussed the troublesome factors again when briefly addressing appellant’s confrontation clause claim, it stressed that “we do not decide whether appellant’s right to confrontation has been violated here.” Oates, 560 F.2d at 80 .

. The State Prosecuting Attorney in its Motion for Rehearing urges us to consider the admissibility of the testimony of the supervising chemist under Texas Rules of Criminal Evidence 703 and 705. Because this argument was not raised in the Court of Appeals nor on original Petition for Discretionary Review, we decline to address this issue. Compare Boyle v. State, 820 S.W.2d 122, 141 (Tex.Cr.App.1989) (op. on motion for reh’g).