ACCEPTED
01-14-00848-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/31/2015 7:51:09 AM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00848-CR
IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
7/31/2015 7:51:09 AM
NOMATHEMBA Y. SITAWISHA CHRISTOPHER A. PRINE
Appellant Clerk
v.
THE STATE OF TEXAS
Appellee
On Appeal from Cause Number 1870305
County Criminal Court at Law No. 4
Honorable John Clinton, Presiding
BRIEF FOR APPELLANT
ORAL ARGUMENT REQUESTED ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
CHERI DUNCAN
Assistant Public Defender
Texas Bar No. 06210500
ELIZABETH SAKAI
Legal Intern
1201 Franklin, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
cheri.duncan@pdo.hctx.net
Counsel for Appellant
i
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Nomathemba Y. Sitawisha
TRIAL PROSECUTOR: Casey Little
Assistant District Attorney
Harris County, Texas
1201 Franklin
Houston, Texas 77002
DEFENSE COUNSEL AT TRIAL: None
PRESIDING JUDGE: The Hon. John Clinton
Harris County Criminal
Court at Law No. 4
1201 Franklin
Houston, Texas 77002
COUNSEL ON APPEAL FOR APPELLANT: Cheri Duncan
Assistant Public Defender
Harris County, TX
1201 Franklin, 13th Floor
Houston, TX 77002
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii
TABLE OF CONTENTS .............................................................................................................iii
INDEX OF AUTHORITIES ....................................................................................................... iv
STATEMENT OF THE CASE ..................................................................................................... 1
ISSUE PRESENTED
Did the trial court commit constitutional error when it failed to advise
Appellant, who was on trial for driving while intoxicated with a blood
alcohol level of more than .15, that she had a right to request funds for
an expert? ..................................................................................................................... 1
STATEMENT OF FACTS............................................................................................................ 1
SUMMARY OF THE ARGUMENT .............................................................................................. 1
ARGUMENT ............................................................................................................................. 4
A. Standard of review ...................................................................................................... 4
B. The right to a reasonably necessary expert is as fundamental to a fair trial as the
right to counsel. ........................................................................................................... 5
C. Ms. Sitawisha’s blood alcohol concentration level was an element of the offense
for which she was tried, not merely an enhancement. Therefore, it was a
material issue................................................................................................................ 6
D. The lack of an expert deprived Ms. Sitawisha of the means to establish a
reasonable doubt about her level of intoxication. ................................................... 7
E. The State had a duty to provide Ms. Sitawisha with funds for an expert
witness. Without Ake funds, she did not have the basic tools for an
adequate defense. ........................................................................................................ 9
iii
F. Because an expert’s assistance was an essential tool of defense in Ms.
Sitawisha’s case, the trial court should have admonished her about her Ake
rights during the Faretta hearing. ............................................................................. 10
CONCLUSION ........................................................................................................................ 11
PRAYER .................................................................................................................................. 12
CERTIFICATE OF SERVICE .................................................................................................... 12
CERTIFICATE OF COMPLIANCE ........................................................................................... 13
iv
INDEX OF AUTHORITIES
Cases
Ake v. Oklahoma, 470 U.S. 68 (1985) ............................................................................ 2,5-10
Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005) ..................................................... 7
Connecticut v. Wang, 92 A.3d 2220 (Conn. 2014) .................................................................. 9
Faretta v. California, 422 U.S. 806 (1975) ..................................................................... 2, 8, 10
Johnson v. State, 760 S.W.2d 277 (Tex. Crim. App. 1988) ................................................. 10
Miranda v. Arizona, 384 U.S. 436 (1966) ............................................................................. 11
Navarro v. State, __ S.W.3d __, 2015 WL 4103565 (Tex. App. – Houston [14th Dist.],
July 7, 2015, no pet. h.) .................................................................................................... 7
Patterson v. Illinois, 487 U.S. 285 (1988) ............................................................................... 10
Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002)
Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995) ......................................................... 5
Tuggle v. Netherland, 516 U.S. 10 (1995)(per curiam) ........................................................... 9
United States v. Agurs, 427 U.S. 97 (1976) ............................................................................. 7
Constitution
U.S. CONSTIT. AMEND. V ....................................................................................................... 6
U.S. CONSTIT. AMEND. VI ..................................................................................................... 6
U.S. CONSTIT. AMEND. XIV .................................................................................................. 6
v
Statutes and Rules
TEX. PENAL CODE § 49.04 ............................................................................................ 1, 6, 7
TEX. R. APP. PROC. 44.2 ........................................................................................................ 4
Books
RICHARD ALPERT, DWI INVESTIGATION & PROSECUTION (2005) ................................. 8
vi
STATEMENT OF THE CASE
On October 1, 2014, a Harris County jury found Nomathemba Y. Sitawisha
guilty of driving while intoxicated with a blood alcohol concentration level of more
than .015. The jury set punishment at 105 days in jail and a $2,500 fine. Judgment was
entered on the same day (CR at 64). Also on October 1, 2014, Ms. Sitawisha filed a
notice of appeal (CR at 67). No motion for new trial was filed.
ISSUE PRESENTED
Did the trial court commit constitutional error when it failed to
advise Appellant, who was on trial for driving while intoxicated
with a blood alcohol level of more than .15, that she had a right to
request funds for an expert?
STATEMENT OF FACTS
Nomathemba Y. Sitawisha was charged with driving while intoxicated with a
blood alcohol concentration of more than 0.15 at the time of the analysis, a Class A
misdemeanor under TEX. PENAL CODE § 49.04(d) (CR at 7 ).
Ms. Sitawisha had been arrested after a couple driving along a freeway access
road saw a red sports car jump a curb and nearly strike their vehicle (4 RR at 14). At
trial, the wife testified that the driver of that vehicle appeared to be under the
influence of something (4 RR at 19). The red car crashed into a light pole, and the
couple called 911 and stayed with it until police arrived. Jersey City police officer Jared
Taylor testified that when he got to the scene, Ms. Sitawisha was sitting in the red
1
car’s driver’s seat and he could smell alcohol on her (4 RR at 39). He believed she had
lost her mental and physical faculties (4 RR at 41).
When she was unable to hire counsel at a fee she could afford, Ms. Sitawisha
chose to proceed pro se. The trial court conducted a Faretta hearing to ascertain
whether she was knowingly and voluntarily waiving her right to an attorney. The judge
specifically informed her during the hearing that she was entitled to have appointed
counsel if she could not afford to hire her own lawyer. He then confirmed that she
understood that right and intended to waive it (2 RR at 4). Ms. Sitawisha also executed
a written waiver of her right to counsel that included the admonishments (CR at 46).
At trial, Harris County Sheriff’s Deputy Michael Allbritten testified that when
Ms. Sitawisha would not consent to a breath or blood test, he obtained a warrant for a
blood sample (5 RR at 75). Amanda Leicht, who drew the blood, also testified, and
the blood draw kit was admitted into evidence without objection as State’s Exhibit 10
(5 RR at 119). A crime lab toxicologist, Andre Salazar, testified that his analysis of the
blood showed an alcohol content of .21. The toxicology lab report was admitted into
evidence without objection as State’s Exhibit 12 (5 RR at 171).
Although the alleged blood alcohol concentration level was an element of the
state’s case, the judge did not inform Ms. Sitawisha of her right under Ake to request
funds for an expert to evaluate the results of her blood test, to advise her about how
to challenge the test, and/or to testify for the defense at trial. The blood test results
were critical because they were the sole evidence supporting the jury’s affirmative
2
finding on the special issue that asked whether Appellant’s blood alcohol level was
greater than .15.
Representing herself, Ms. Sitawisha, who is a college student, cross-examined
each of the witnesses and tried to create an issue about her intoxication level through
her questioning. She also asked the court to call the toxicology lab’s analytical
operations manager, Dr. Fessessework Guale (whom the state had not subpoenaed),
so she could question her about the blood test. In response to her request, the judge
said, “If you wanted to bring your own expert in, you could’ve done that. Sit down.”
(5 RR at 208). This was the only time the court admonished Ms. Sitawisha about her
right to an expert, and even then, the judge did not include an admonishment about
her Ake right to funds to retain one.
The state brought Dr. Guale to court the next day. Though Ms. Sitawisha
made an effort to challenge the test results through Dr. Guale, she did not have the
expertise – either in the techniques of cross-examination or in blood alcohol analysis
– to raise an issue about the test (6 RR at 6). She was no match for the state’s
witnesses.
SUMMARY OF THE ARGUMENT
A defendant in a criminal case has a right to funds for an expert if she
demonstrates that the expert is reasonably necessary. The Supreme Court considers
this right, which is grounded in due process notions of fundamental fairness, to be a
structural right, like the right to counsel.
3
A defendant who chooses to waive the right to counsel does not automatically
waive her right to an expert. Because this is a structural issue, a trial judge should: 1)
admonish a pro se defendant about the dangers and pitfalls of proceeding without an
expert (at least in cases in which it is clear from the pleadings that one is reasonably
necessary); 2) advise the pro se defendant of her Ake right to funds; and 3) determine
whether she is knowingly waiving the right, as Faretta requires for waivers of counsel.
Ms. Sitawisha’s blood alcohol concentration level was an element of the offense
with which the state charged her. Therefore, it was reasonably necessary for the state
to provide her with an expert to assist her in countering the state’s experts and
evidence on that element. Because she could not have known about her right to funds
for an expert, she could not have knowingly and voluntarily waived it.
The trial judge’s failure to give Ms. Sitawisha the opportunity to hire an expert
made her trial fundamentally unfair. The error was not harmless beyond a reasonable
doubt. Her conviction should be reversed.
ARGUMENT
Ms. Sitawisha was both indigent and pro se. Due process required the trial
court to ensure that she understood her right to expert assistance, as well as her right
to assistance of counsel.
A. Standard of review
This case should be reviewed under constitutional error standard of TEX. R.
APP. PROC. 44.2(a): the court must reverse a judgment unless it determines beyond a
4
reasonable doubt that the error did not contribute to the conviction or punishment.
See Rey v. State, 897 S.W.2d 333, 345 (Tex. Crim. App. 1995) (Failure to provide a
pathologist for an indigent defendant was structural error). See, also, Potier v. State, 68
S.W.3d 657, 664-65 (Tex. Crim. App. 2002) (The effect of denying a defendant his
theory of the case is of constitutional dimension).
B. The right to a reasonably necessary expert is as fundamental to a fair
trial as the right to counsel.
The Due Process Clause of the Fourteenth Amendment requires the state to
make sure that an indigent defendant has “access to the raw materials integral to the
building of an effective defense.” Ake v. Oklahoma, 470 U.S. 68, 76 (1985). Access
includes the right to public funds to pay for an expert’s assistance, once the defendant
makes a threshold showing that the assistance is reasonably necessary for the
preparation and presentation of an adequate defense. See id. at 74 (The Constitution
requires the state to provide a psychiatric expert to a defendant who cannot afford
one, when the evidence is reasonably necessary).
The Court in Ake recognized the importance of being able to respond to a
state expert’s testimony with one’s own expert. In such cases, due process requires: 1)
access to an expert’s examination and testing; 2) expert testimony; and 3) expert
assistance during the sentencing phase. Id. at 83. Ms. Sitawisha received none of these.
Further, the trial court did not inquire whether she intended to waive her right to
expert assistance as she had waived her right to counsel.
5
Expert assistance was, in fact, reasonably necessary for Ms. Sitawisha to defend
against the state’s allegation that her blood alcohol level exceeded .15 at the time of
the incident (CR at 7). Without her own expert, she had no way to respond to the
state’s expert testimony about the testing of her blood. This made her trial
fundamentally unfair, according to Ake.
C. Ms. Sitawisha’s blood alcohol concentration level was an element of the
offense for which she was tried, not merely an enhancement. Therefore,
it was a material issue.
Due process requires the state to prove each element of the offense beyond a
reasonable doubt. U.S. CONSTIT. AMEND. V (due process)1; U.S. CONSTIT. AMEND. VI
(right to compulsory process, right to confront witnesses). See, also, Swearingen v. State,
101 S.W.3d 89, 95 (Tex. Crim. App. 2003).
In the Texas Penal Code, driving with an alcohol concentration level of .15 or
greater is a separate offense from ordinary driving while intoxicated, and the alcohol
concentration level is an essential element. See TEXAS PENAL CODE § 49.04:
(a) A person commits an offense if the person is intoxicated while operating
a motor vehicle in a public place.
(b) Except as provided by Subsections (c) and (d) and Section 49.09, an
offense under this section is a Class B misdemeanor, with a minimum
term of confinement of 72 hours.
…
(d) If it is shown on the trial of an offense under this section that an analysis
of a specimen of the person’s blood, breath, or urine showed an alcohol
1
As applied to the states by U.S. CONSTIT. AMEND. XIV.
6
concentration level of 0.15 or more at the time the analysis was
performed, the offense is a Class A misdemeanor.
In contrast to an element, an enhancement does not change the degree of an
offense. See Calton v. State, 176 S.W.3d 231, 233 (Tex. Crim. App. 2005). A blood
alcohol concentration of .15 or greater, however, does increase the degree of the
offense. See TEX. PENAL CODE § 49.04(d), supra. For this reason, “(i)t is … an
element of a separate offense because it represents a specific type of forbidden
conduct – operating a motor vehicle while having an especially high concentration of
alcohol in the body.” Navarro v. State, __ S.W.3d __, 2015 WL 4103565 at *6 (Tex.
App. – Houston [14th Dist.] July 7, 2015, no pet. h.).
The allegation that Ms. Sitawisha’s blood alcohol concentration exceeded .15
increased the offense level of the driving while intoxicated charge, according to
Section 49.04(d). Therefore, the allegation represented an element of a separate
offense. This makes it was a material issue within the meaning of Ake, and due
process required the court to provide her with expert assistance or give her the
opportunity to waive such assistance.
D. The lack of an expert deprived Ms. Sitawisha of the means to establish a
reasonable doubt about her level of intoxication.
Evidence also is material, within the meaning of Ake, if its omission would
create “a reasonable doubt that did not otherwise exist....” United States v. Agurs, 427
U.S. 97, 112 (1976). As a pro se defendant, Ms. Sitawisha could not raise a reasonable
doubt about the blood test without expert assistance.
7
Blood test evidence is subject to attack on a number of grounds. The test itself
can be attacked on at least three fronts: the collection of the specimen, the storage of
the specimen before testing, and the test itself. See RICHARD ALPERT, DWI
INVESTIGATION & PROSECUTION 56 (2005). Even the most experienced defense
lawyers often need to retain serology, toxicology or similar experts in blood test cases.
Experts can provide independent testing, advice before and during trial, assistance
with preparing for cross-examining the state’s experts, and their own testimony to
rebut the state’s experts. If this assistance is necessary even for a seasoned trial lawyer,
it surely is even more so for a layperson representing herself.
The State called Andre Salazar to testify about the blood test analysis he
performed, and the result (5 RR at 145). Ms. Sitawisha cross-examined him (5 RR at
172), but she had no expert to help her understand the science and to prepare an
effective cross-examination. She also had no expert to testify and perhaps create a
reasonable doubt about the test or the results.
In Ms. Sitawisha’s case, the blood testing process and its results were significant
fact issues. An admonishment and colloquy about this fundamental right easily could
have been included during the Faretta hearing. However, the trial judge did not include
it (2 RR at 6). Therefore, Ms. Sitawisha had no opportunity to make a knowing and
intelligent waiver of her right to an expert or to demonstrate her need for funds under
Ake.
8
E. The State had a duty to provide Ms. Sitawisha with funds for an expert
witness. Without Ake funds, she did not have the basic tools for an
adequate defense.
Although it appears to be a question of first impression in Texas, the
Connecticut Supreme Court has decided that a pro se defendant is entitled to funds to
hire an expert to the same extent as a defendant represented by counsel. In Connecticut
v. Wang, the primary issue was whether an indigent defendant who has waived the
right to counsel is constitutionally entitled to reasonably necessary expert or
investigative services at public expense. Connecticut v. Wang, 92 A.3d 220, 236 (2014).
The court held: “An indigent defendant's right to access the tools of an adequate
defense should not depend on whether he is self-represented or represented by
appointed counsel. …The due process principle of fundamental fairness requires that
a state afford an indigent self-represented defendant a fair opportunity to present his
defense by assuring him access to the basic tools of an adequate defense.” Wang, 92
A.3d at 237.
In this case, the Ake error prevented Ms. Sitawisha from developing her own
blood test evidence to rebut the state’s evidence and to present her defense. As a
result, the state’s evidence went unchallenged, which may have unfairly increased its
persuasiveness in the eyes of the jury. See Tuggle v. Netherland, 516 U.S. 10, 13
(1995)(per curiam)(reversing for failure to fund psychiatric expert in capital case as
required by Ake).
9
F. Because an expert’s assistance was an essential tool of defense in Ms.
Sitawisha’s case, the trial court should have admonished her about her
Ake rights during the Faretta hearing.
A defendant should be made aware “of the dangers and disadvantages of self-
representation, so that the record will establish that ‘he knows what he is doing and
his choice is made with eyes open.’ ” Faretta v. California, 422 U.S. 806, 835 (1975)
(citations omitted, emphasis added). Construing Faretta, the Texas Court of Criminal
Appeals has said that a defendant’s “eyes should be open to the fact that, while self-
representation is undoubtedly his right, he is about to embark on a risky course.”
Johnson v. State, 760 S.W.2d 277, 278-9 (Tex. Crim. App. 1988) (citations omitted).
At trial, counsel is required to help even the most gifted layman adhere to the
rules of procedure and evidence, comprehend the subtleties of voir dire, examine and
cross-examine witnesses effectively, object to improper prosecution questions, and
much more. See Patterson v. Illinois, 487 U.S. 285, 299 (1988). Further, expert assistance
is necessary for even the most gifted attorneys, in cases involving scientific or other
expert evidence. Such assistance is even more important for a defendant who
proceeds to trial without counsel.
As a pro se defendant, Ms. Sitawisha should have been admonished about her
Ake rights, and asked if she wanted to waive those rights as she waived her right to
counsel. The judge’s failure to take these simple steps made the trial fundamentally
unfair.
10
Just as due process requires a trial court to “rigorously” convey the pitfalls of
proceeding to trial without counsel (see Patterson, supra), so must it require warnings of
the pitfalls of proceeding without expert assistance, at least in cases in which the
indictment makes it obvious that the evidence is material. The trial court also should
be required to advise a defendant of her right to request funds for an expert, just as
she must be advised that an attorney will be provided at state expense if she is unable
to afford one. See Miranda v. Arizona, 384 U.S. 436 (1966).
CONCLUSION
The right to self-representation does not exclude the right to expert assistance.
If the state relies on expert testimony to prove an element of the crime, as it did here,
then the defendant is entitled to her own expert for preparation and trial, upon a
showing of reasonable necessity. Under Ake, the state has a constitutional duty to
provide funds for an expert in such cases. Because this is a question of structural
error, and because a pro se defendant cannot knowingly waive the right to funds for
an expert if she is unaware of that right, the trial court should admonish the defendant
and determine if her waiver of an expert, like her waiver of counsel, is knowing and
voluntary. The trial court’s failure to admonish Ms. Sitawisha and make funds for an
expert available to her violated her right to due process and made her trial
fundamentally unfair.
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PRAYER
For these reasons, Ms. Sitawisha respectfully requests the Court to reverse her
conviction and remand this case back to the trial court.
Respectfully submitted,
Alexander Bunin
Chief Public Defender
Harris County Texas
/s/ Cheri Duncan
______________________________
Cheri Duncan
Assistant Public Defender
Texas Bar No. 06210500
Elizabeth Sakai
Legal Intern
1201 Franklin, 13th floor
Houston Texas 77002
(713) 368-0016 telephone
(713) 437-4318 e-fax
cheri.duncan@pdo.hctx.net
CERTIFICATE OF SERVICE
I certify that a copy of this brief was served electronically on the Harris County
District Attorney’s Office on July 31, 2015.
/s/ Cheri Duncan
__________________________________
Cheri Duncan
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CERTIFICATE OF COMPLIANCE
I certify that this brief complies with Rule 9.2, TEX. R. APP. PROC. It was prepared on
a computer using 14-point Garamond type. It contains 2,796 words.
/s/ Cheri Duncan
____________________________________
Cheri Duncan
13