in the Estate of Maud Aubria Hill

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00025-CV ______________________________ IN THE ESTATE OF MAUD AUBRIA HILL, DECEASED On Appeal from the 402nd Judicial District Court Wood County, Texas Trial Court No. 2004-071 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION This Court has been notified that a party in an appeal pending before this Court, Kirk Lewis, individually, has filed a petition for bankruptcy. We have previously stayed further action in the case and suspended the appeal. See Tex. R. App. P. 8.2. Accordingly, for administrative purposes, this case is abated and will be treated as closed. Any party may reinstate by promptly filing a motion with an attached certified copy of the order showing that the automatic bankruptcy stay has been lifted or terminated and specifying what further action, if any, is required from this Court. In the event of reinstatement, any period that began to run and had not expired at the time of suspension will begin anew when the proceeding is reinstated. Any document filed while the proceeding is suspended will be deemed filed on the same day, but after, the Court reinstates the appeal. See Tex. R. App. P. 8.2, 8.3. Donald R. Ross Justice Date Submitted: October 26, 2005 Date Decided: October 27, 2005 /EM>, 838 S.W.2d 248 (Tex. Crim. App. 1992), in which the Texas Court of Criminal Appeals addressed the due-process considerations involved in providing access to expert assistance. (5) At the hearing on the motion (conducted on the day trial was scheduled to begin), Hyder further explained that he requested an expert for assistance in understanding the report already obtained from the DPS laboratory and for independent testing as well. The trial court denied Hyder's motion. (6) Hyder urged his request a second time in a motion to reconsider which advanced the same position and information as his original motion; the trial court refused to reconsider and again denied the request. Since Hyder sought appointment of an expert in terms of both statutory entitlement and by reference to constitutional considerations, we will address each basis in turn. A. Statutory Basis for Appointment The appointment of experts in a noncapital case is governed in part by Article 26.05: "A counsel in a noncapital case . . . shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts." Tex. Code Crim. Proc. Ann. art. 26.05(d). The appointment of an expert witness under Article 26.05 rests within the sound discretion of the trial court. De Freece v. State, 848 S.W.2d 150, 154 n.3 (Tex. Crim. App. 1993); Stoker v. State, 788 S.W.2d 1, 16 (Tex. Crim. App. 1989); Moore v. State, 836 S.W.2d 255, 260 (Tex. App.--Texarkana 1992, pet. ref'd). In determining whether the trial court abused its discretion by denying appointment of an expert, the Texas Court of Criminal Appeals has considered whether the defendant presented evidence supporting the motion for appointment, whether defense counsel ascertained the expert's availability to testify, and whether defense counsel presented evidence as to the costs involved in procuring the expert's services. See Stoker, 788 S.W.2d at 17. Also significant in Stoker was the timing of the motion. Although defense counsel in Stoker indicated that he had not anticipated the introduction of extraneous offenses for which he sought appointment of a psychology expert, the Stoker court pointed out that counsel "was aware of the existence of these extraneous offenses since they were pending by indictment in the same court" as the case at issue then. Id. The court went on to consider the fact that despite this awareness, defense counsel did not file the motion for appointment until after voir dire: As we stated in Hammett, "[n]ot only was the late hour in which appellant filed his motion calculated to be disruptive of the trial, the very nature of his motion compounded the problem. To have granted appellant's motion as it was presented and at the time it was filed would have constituted a real threat to the court's control of the trial. The granting of appellant's motion under the circumstances here presented would have allowed appellant to manipulate his asserted rights in such a manner as to obstruct the orderly administration of justice." Id. (quoting Hammett v. State, 578 S.W.2d 699, 707 (Tex. Crim. App. 1979)). Hyder's motion to appoint provides no affidavit or evidence to explain why or how an expert would assist in his defense. He generally asserted his right to independent examination of the evidence and stated that the cost of the named expert's assistance was reasonable and necessary to his defense. So, like the motion in Stoker, Hyder's motion failed to demonstrate a specific need for appointment of a DNA expert. Also in keeping with the Stoker guidelines, we consider the timing of the motion to appoint. Here, Hyder filed his motion only three days before trial. We look to the record to determine possible dates at which Hyder's defense counsel would have learned that the State would present DNA evidence. We first note that the trial court appointed defense counsel on March 31, 2006. That same day, the State tendered several documents to defense counsel. Included in this discovery disclosure were offense reports clearly indicating that the jacket had been submitted for DNA testing. Detective David Cheatham of the Longview Police Department noted in his report that hairs were discovered on the jacket located on the road near the second robbery and visually identified as the jacket worn during the Family Dollar store robbery. Detective Cheatham noted that Detective Kirk Haddix forwarded the jacket to the DPS laboratory. Detective Haddix's report specifically stated that the jacket was submitted for DNA testing to the DPS laboratory in Garland on December 20, 2005. On July 26, 2006, the State faxed defense counsel a copy of the search warrant to retrieve a sample of Hyder's blood for confirmation of the earlier CODIS match indicating Hyder as the contributor of the DNA profile from the jacket. Included as an attachment was the DPS laboratory report dated May 4, 2006, and detailing the CODIS match. In addition, on July 26, the State faxed a notice to defense counsel which added three DNA experts and the nurse who drew Hyder's blood pursuant to the search warrant to the witness list. The State updated defense counsel on August 2, alerting counsel that testing on Hyder's blood sample had begun and noting that testing should be complete the week before trial. On August 14, the State sent defense counsel the final DNA report which confirmed the results obtained from the CODIS search. Defense counsel measures the time in which he had to file the motion as measured from this last (August 14) date. We cannot agree that the day defense counsel learned the results of the DNA comparison is the relevant date to imply when examining the timing of the motion. While defense counsel did not know the results of the final DNA comparison earlier than August 14, he was aware well before the filing of the motion to appoint an expert that DNA testing has been ordered, that the State intended to present DNA evidence, and that there had already been a match through CODIS between the DNA profile taken from the jacket and Hyder's stored DNA profile. Because the late hour at which the motion to appoint an expert was filed and due to the absence of any evidence produced by Hyder in support of that motion, we conclude that the trial court did not abuse its discretion when it refused to appoint a DNA expert pursuant to Article 26.05. B. Constitutional Basis for Appointment The United States Supreme Court explained that due process requires access to the raw materials integral to the building of an effective defense and that under certain circumstances, those raw materials include an appointed expert. See Ake v. Oklahoma, 470 U.S. 68, 77 (1985). The Ake decision set forth three considerations relevant to determining whether an indigent defendant is constitutionally entitled to the requested appointed expert: the defendant's interest, the State's interest, and "the probable value of the . . . procedural safeguards that are sought, and the risk of the erroneous deprivation of the affected interest if those safeguards are not provided." Id. at 77; (7) Jackson v. State, 992 S.W.2d 469, 472-73 (Tex. Crim. App. 1999). It is the third consideration that is the focus of most cases addressing the appointment of an expert in the due-process context. See Rey, 897 S.W.2d at 337-38. (8) The Ake Court explained that the risk of erroneous deprivation is too high when it is clear that the issue on which the expert is sought is likely to be a significant factor at trial. Ake, 470 U.S. at 83. Therefore, an indigent defendant has the right to have an expert appointed upon a preliminary showing that the matters that the expert will address will likely be significant factors at trial. See Rey, 897 S.W.3d at 339 (citing Ake, 470 U.S. at 74). Relying on Ake, the Texas Court of Criminal Appeals has held that the appointment of an expert is required when a defendant makes "a preliminary showing of a significant issue of fact on which the State would present expert testimony, and which the knowledge of a lay jury would not be expected to encompass." Jackson, 992 S.W.2d at 474. The burden is on the defendant to make a sufficient threshold showing of this particularized need for the expert's assistance. See Griffith, 983 S.W.2d at 286-87; Rey, 897 S.W.2d at 339. In order to carry this burden, a defendant must offer more "than undeveloped assertions that the requested assistance would be beneficial." Williams v. State, 958 S.W.2d 186, 192 (Tex. Crim. App. 1997); Rey, 897 S.W.2d at 339 (citing Caldwell v. Mississippi, 472 U.S. 320, 323-24, n.1 (1985)); Smith v. State, 131 S.W.3d 928, 930 (Tex. App.--Eastland 2004, pet. ref'd). A defendant must also show more than the mere conclusions of defense counsel. Norton v. State, 930 S.W.2d 101, 111 (Tex. App.--Amarillo 1996, pet. ref'd). The defendant must show both that there exists a reasonable probability that an expert would be of assistance and that denial of expert assistance would result in a fundamentally unfair trial. Davis v. State, 905 S.W.2d 655, 659 (Tex. App.--Texarkana 1995, pet. ref'd) (citing Moore v. Kemp, 809 F.2d 702, 712 (11th Cir. 1987)). As the Rey opinion pointed out, the cases holding that a defendant failed to make a sufficient preliminary showing of the need for an expert are typically cases in which a defendant failed to support his motion with affidavits or other evidence supporting his defensive theory, (9) explaining why the expert's assistance would be useful in establishing that theory, or showing that there was reason to question the State's expert and proof. Rey, 897 S.W.2d at 341. A defendant meets this threshold burden by making his defensive theory clear to the trial court and supporting it with factual allegations or evidence that expert testimony would support his defensive theory. See id. We analyze whether a defendant made a sufficient threshold showing by examining the facts and arguments before the trial court at the time of the defendant's motion. Id. at 342 n.9. Here, Hyder did not provide any evidence to support his defensive theory or any evidence explaining the usefulness of expert assistance on the matter. He did not submit any affidavits or evidence to support the motion and also made no such showing at the hearing on the motion. As the trial progressed, we see that the issue of identity was central to Hyder's defense. And, although the State had evidence that victims identified Hyder in a photographic line-up and their in-court testimony identified Hyder as the individual who committed the robberies, the State did make the DNA matches a significant portion of its case. During cross-examination of the State's DNA experts, Hyder's defensive theory became a bit more clear. Through his mother's testimony, Hyder asserted that his car had been broken into and several items, possibly including his jacket, had been stolen. It appears that Hyder wanted to utilize expert assistance to support his theory that someone else wore his jacket during the commission of the robberies. Further, in his brief to this Court, Hyder more specifically explains how an expert may have been beneficial to his defensive theory: the "requested expert would have assisted [defense counsel] in cross examination of the State's expert about the presence of other genetic profiles on the jacket." However, no such showing was made by Hyder at the hearing on the motion for appointment of a DNA expert. We, therefore, cannot say that the trial court erred by determining that Hyder failed to make a sufficient preliminary showing of the need for a DNA expert's assistance such that the trial court would have been required to appoint one under Ake. We reiterate that we are constrained to examine whether Hyder made a sufficient threshold showing by looking at the facts and evidence presented to the trial court at the time of the motion. See Rey, 897 S.W.2d at 342 n.9. Based on those facts, the trial court did not err in denying Hyder's motion to appoint an expert. III. CONCLUSION Hyder has failed to demonstrate that the trial court abused its discretion by denying his motion to appoint a DNA expert pursuant to Article 26.05 of the Texas Code of Criminal Procedure and has failed to show that he was denied due process by the trial court's denial of his motion to appoint a DNA expert. We overrule Hyder's point of error. Accordingly, we affirm the trial court's judgment. Bailey C. Moseley Justice Date Submitted: July 17, 2007 Date Decided: August 7, 2007 Do Not Publish 1. In one trial, Hyder was convicted of two offenses of aggravated robbery. Although the appeals from the convictions were briefed as one and present the same point of error, this appeal involves only the robbery of the Family Dollar store; the robbery of the insurance agency shortly thereafter is addressed in companion case Hyder v. State, cause number 06-06-000183-CR. 2. Prior to receiving the tip as to the identity of the suspect, investigators had assembled a photographic line-up of possible suspects. Hyder was not included in this initial line-up and witnesses did not identify a suspect from the photographs included. 3. DPS DNA laboratory supervisor, Lorna Beasley, explained that the "major component" is the main DNA profile and it is stronger in terms of intensity and amount of DNA present. This major component "was consistent with the single-source profile that we . . . recovered from the blood specimen from Tyshun Hyder." She added that there was not sufficient information contained in the minor component to extract an identifiable profile for comparison. 4. More specifically, Beasley testified that the probability of selecting an unrelated person at random who could be a contributor of the major component of the DNA profile from the jacket is one in 861.3 quadrillion in the African-American population, to which group Hyder belongs. Early in the investigation, Hyder mentioned that he does have a twin brother, but conceded that his twin brother could not have committed these robberies since he was in prison at the time of the offense. 5. McBride also addressed the denial of a motion to appoint a chemist in terms of the right to inspect evidence and application of Article 39.14 of the Texas Code of Criminal Procedure. 838 S.W.2d at 250; see Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon Supp. 2006). 6. The State contends this case is controlled by the reasoning in Wolfe v. State, 120 S.W.3d 368 (Tex. Crim. App. 2003). In Wolfe, the Texas Court of Criminal Appeals dismissed the appeal for want of jurisdiction because Article 64.05 of the Texas Code of Criminal Procedure governing appeals in post-conviction proceedings to test DNA did not specifically provide an appeal for the trial court's denial of the appointment of an independent DNA expert. 120 S.W.3d at 372; see Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon 2006). The instant appeal, however, is not one related to Chapter 64. Trial courts do not have jurisdiction to order post-conviction DNA testing outside the provisions of Chapter 64. See State v. Patrick, 86 S.W.3d 592, 594-95 (Tex. Crim. App. 2002); Booker v. State, 155 S.W.3d 259, 264 (Tex. App.--Dallas 2004, no pet.). Prior to trial, the appointment of an independent expert for DNA testing is governed by Article 26.05. A denial of a pretrial motion for a DNA expert, therefore, is an interlocutory order incident to the trial and may be reviewed in connection with an appeal from the final judgment of conviction. It is this distinction which distinguishes Wolfe from the instant case. We conclude that we have jurisdiction over this appeal and can review the trial court's denial of the pretrial motion for appointment of an expert. 7. "While the Ake case dealt with the appointment of a psychiatrist, it is now without question that Ake requires the appointment of an expert regardless of his field of expertise." Griffith v. State, 983 S.W.2d 282, 286 (Tex. Crim. App. 1998) (citing Rey v. State, 897 S.W.2d 333, 338 (Tex. Crim. App. 1995)). As the Texas Court of Criminal Appeals stated: There is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given. Rey, 897 S.W.2d at 338. 8. Rey has been questioned in terms of its position on structural error. See Briseno v. Cockrell, 274 F.3d 204, 211 (5th Cir. 2001). 9. It is because a defendant must reveal some details of his defense in order to be entitled to appointment of an expert under Ake that the Texas Court of Criminal Appeals has concluded that a defendant is entitled to an ex parte hearing on a motion to appoint an expert. See Williams, 958 S.W.2d at 191.