ACCEPTED
03-12-00474-CR
5330530
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/18/2015 5:14:32 PM
JEFFREY D. KYLE
NO. 03-12-00474-CR CLERK
FILED IN
IN THE COURT OF APPEALS FOR THE3rd COURT OF APPEALS
AUSTIN, TEXAS
THIRD DISTRICT OF TEXAS 5/18/2015 5:14:32 PM
JEFFREY D. KYLE
Clerk
AUSTIN, TEXAS
CHRISTINA LYONS,
Appellant
V.
STATE OF TEXAS,
Appellee
Appealed From The
22nd Judicial District Court
Of Hays County, Texas
APPELLANT’S MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:
CHRISTINA LYONS, the Appellant in Cause Number CR-11-0101 in the
22nd District Court of Hays County, Texas, pursuant to Rule 49 of the Texas Rules
of Appellate Procedure, submits this Motion for Rehearing moving this Honorable
Court to reconsider its Opinion of February 26, 2015 affirming the judgment and
sentence of conviction.
1
GROUND FOR REVIEW NUMBER ONE
THE COURT OF APPEALS ERRED BY RULING
THAT THE TRIAL JUDGE’S DENIAL OF
ADDITIONAL TIME FOR A DEFENSE EXPERT TO
BE ABLE TO ASSIST IN THE PREPARATION OF
AND PRESENTATION OF THE DEFENSE IS
SUBJECT TO AN ABUSE OF DISCRETION
STANDARD.
ARGUMENT AND AUTHORITIES
In the case at bar, this Court held that a trial judge’s denial of additional time
in order for a defense expert to be able to assist in the preparation and presentation
of the defense was subject to an abuse of discretion standard. Lyons v. State, No. 03-
12-00474-CR at 6-9, 20 (Tex. App. - Austin, February 26, 2015). The Court of
Criminal Appeals has held, however, that a trial judge’s denial to the defense of
access to expert assistance to assist in the preparation and presentation of a defense
was structural error and not subject to a harmless error analysis. Rey v. State, 897
S.W.2d 333 (Tex. Crim. App. 1995). Where a capital defendant has an interest in the
accuracy of the proceedings, the State maintains an interest in the accuracy of the
result of the trial, and a defense expert is required to assist in the defensive theory of
the case and present the jury with alternative theories, a trial judge’s denial of access
to such a defense expert is structural error and not subject to a harm analysis. Id.
In Rey v. State, the defendant was charged with capital murder. Id. The State
alleged that the defendant caused the death of the complainant in the course of
2
committing burglary of a house during which time the complainant received injuries
to the head. Id. The defense claimed that the complainant died of a heart attack, not
injuries to the head, and the defense informed the trial judge prior to trial and again
during trial that an expert pathologist was needed to assist the defense in this regard.
Id. The trial judge denied the defense access to such an expert. Id. The Court of
Criminal Appeals held that access to such an expert pathologist was a “‘basic tool’
essential to developing and presenting his defensive theory.” Id. The Court held that
the denial of access to such a “basic tool” was structural error not subject to a harm
analysis. Id.
Rey v. State cited Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d
53 (1985) for the proposition that a defendant must be provided with “the basic tools
to present his defense within our adversarial system.” Id. The Rey court recognized
that Ake “placed the greatest emphasis on the third factor, discussing the importance
of [defense expert] testimony in conveying to the factfinder an understanding of the
defendant’s [defensive issues] . . .” Id. The Rey court also recognized that Ake was
concerned that “the risk of an inaccurate verdict was high where the defendant was
not assisted by a [defense expert] to ‘help determine whether the [] defense is viable,
to present testimony, and to assist in preparing the cross-examination of a State’s
[expert] witnesses.” Id. Where a scientific issue is likely to be a significant factor, “a
3
defense may be devastated by the absence of a [defense expert’s] examination and
testimony; with such assistance, the defendant might have a reasonable chance of
success.” Id.
The Rey court stated that, “The adversarial model rests on the assumption that
each party to a dispute, motivated by self-interest, will develop his position to the
greatest extent possible . . . thus providing the factfinder an optimal vantage from
which to gauge all relevant facts and make an informed decision on the merits.” Id.,
citing DeFreece v. State, 848 S.W.2d 150 (Tex. Crim. App.), cert. denied, 510 U.S.
905, 114 S.Ct. 284, 126 L.Ed.2d 234 (1993). The court further explained:
In an adversarial system due process requires at least a
reasonably level playing field at trial . . . It also means the
appointment of a [defense expert] to provide technical
assistance to the accused, to help evaluate the strength of
his defense, to offer his own expert diagnosis at trial if it is
favorable to that defense, and to identify the weaknesses in
the State’s case, if any, by testifying himself and/or
preparing counsel to cross-examine opposing experts.
Id.
Rey v. State determined that this type of error is structural and cannot be
evaluated for harm:
This analysis leads us to ask whether the error in the instant
case was structural error or trial error. We conclude the
error is structural. We would first point out, as we have
previously noted, that the Supreme Court in Ake reversed
4
and remanded for a new trial without conducting a harm
analysis. See DeFreece, 848 S.W.2d at 160. It is clear from
a reading of Ake that the error at issue is structural in
nature. The Court’s analysis in Ake began with a revisiting
of the “elementary principle” that every criminal defendant,
indigent or otherwise, must have “a fair opportunity to
present his defense.” Ake, 470 U.S. at 76. The Court spoke
in terms of the “basic tools of an adequate defense” and the
“raw materials integral to the building of an effective
defense” in concluding that in certain defined
circumstances, discussed at length earlier in this opinion,
a defense expert is such an element . . . We can conceive of
few errors that are more structural in nature than one which
eliminates a basic tool of an adequate defense and in doing
so dramatically affects the accuracy of the jury’s
determination . . .
Id. (Emphasis added).
In the case at bar, counsel was appointed on January 17, 2012 to represent the
Appellant in this capital murder case. Lyons v. State, supra, at 8. Trial was scheduled
for June 2012. Id. Counsel timely requested discovery but was not initially provided
with the crucial medical records or radiological films of the complainant. (R - v.2 -
5-6).1 Three weeks prior to trial, counsel received these discovery items totaling
approximately 1000 pages and obtained a neuro-radiologist expert to review these
records. Id. On May 23, 2012, the defense expert informed counsel that a pathologist
would be needed to explain to the jury that the injuries to the complainant could have
1
The clerk’s record will be referred to as “T and page number.” The court reporter’s
record will be referred to as “R and volume and page number.”
5
been caused by a fall to the ceramic floor or by the Appellant’s other child. Id.
Counsel located a pathologist, but that expert informed counsel that the expert could
not be prepared for trial in the time remaining before trial was scheduled to begin. Id.
at 8. Counsel filed with the trial judge an ex parte motion for continuance which
outlined the pathologist’s (Dr. Willey’s) concerns:
Dr. Willey would be willing to testify in this case, but
cannot do so in the time frame currently provided. Dr.
Willey has made a preliminary review of the evidence in
this case, and although he cannot make a final
determination, and indeed is requesting more information
than what Counsel currently has in his possession, Dr.
Willey has informed the defense that these types of injuries
could have been caused by a short fall onto a hard surface,
like the ceramic floors of Defendant’s home (located by the
back door). In addition, the injuries could have been caused
by another child who was present in the home, and has
admitted to injuring the victim in this case. Dr. Willey’s
initial analysis is consistent with the defensive theory.
Lyons v. State, supra at 7.
The trial judge refused to provide to the defense additional time for this defense
pathology expert to be able to assist in the preparation and presentation of the
defense. The State called the following expert witnesses: a pediatric radiologist, a
department head of pediatric neurosurgery, a program director for pediatrics
residency training, and a medical examiner pathologist. Lyons v. State, supra at 16-
17. No defense expert testified in support of the defense theory that the injuries could
have been caused by a fall on a hard surface or could have been caused by another
6
child in the house. Id. at 5. Additionally, no defense expert pathologist assisted
counsel in the cross-examination of the State’s experts.
The defense expert pathologist would have been able to explain to the jury that
the complainant suffered from weak bone density and fragility of the skull bones in
particular. See Appellant’s Brief at 55. The defense expert pathologist would have
been able to then explain to the jury that the complainant was susceptible to the
injuries sustained by the complainant by means of a short fall or by the actions of a
four-year-old person. Id. This was the key to the Appellant’s defense. Id. The defense
expert would have been able to assist the defense in cross-examination of the State’s
expert witnesses who all disagreed that a four-year-old could have caused the injuries
to the complainant. Id. Previous counsel withdrew from the case after being denied
the assistance of court-appointed experts. Id. at 6. It appears that the trial judge in the
case at bar circumvented the decision whether or not to appoint the defense expert
pathologist by merely denying the continuance request. This, in effect, was the denial
of expert assistance. The defense expert pathologist was not appointed to assist
counsel during this capital murder trial.
The Appellant was not provided with the basic tools to present her defense
within our adversarial system. It was crucial in the Appellant’s trial that a defense
expert pathologist convey to the jury an understanding of the defense regarding the
7
bone condition of the complainant and the fact that a four-year-old could have caused
the injuries sustained by the complainant. Given the lack of assistance by a defense
expert pathologist, the risk of an inaccurate verdict is high since the Appellant was
not assisted by a defense expert pathologist to present testimony and to assist in
preparing the cross-examination of the State’s four expert witnesses. The Appellant’s
defense was devastated by the absence of the defense expert’s examination and
testimony and assistance to defense counsel for the cross-examination of the State’s
four expert witnesses.
The adversarial model was not followed in the Appellant’s case since the
Appellant, without the assistance of a defense expert pathologist, was unable to
develop her defense to the greatest extent possible. This resulted in the jury not
receiving an optimal vantage from which to gauge all relevant facts and make an
informed decision on the merits. The Appellant’s right to due process was violated
since the Appellant was denied at least a reasonably level playing field at trial given
the State’s four expert witnesses as opposed to no defense expert pathologist.
Additionally, the Appellant was deprived of the technical assistance of a defense
expert pathologist to help evaluate the strength of her defense, to offer his own expert
diagnosis at trial favorable to that defense, and to identify the weaknesses in the
State’s case by testifying himself and preparing counsel to cross-examine opposing
8
experts. The Appellant’s access to such an expert pathologist was a basic tool
essential to developing and presenting her defensive theory just as in Rey v. State.
This denial of access to such a basic tool was structural error not subject to a harm
analysis. This Court, however, improperly applied an abuse of discretion standard.
Based upon the above, this Honorable Court should withdraw its opinion of
February 26, 2015, hold that the denial of additional time for a defense expert in
pathology to be able to assist in the preparation and presentation of the defense was
structural error, sustain the Appellant’s points of error, and remand this cause to the
trial court for a new trial.
PRAYER
WHEREFORE, for the reasons stated above and for the reasons stated in the
Brief for the Appellant, this Court should grant the Appellant’s Motion for Rehearing
and upon rehearing, reverse the judgment of the trial judge and remand this cause for
a new trial.
9
Respectfully submitted,
GROSS & ESPARZA, P.L.L.C.
/s/ Michael C. Gross
Michael C. Gross
State Bar No. 08534480
106 South St. Mary’s Street, Suite 260
San Antonio, Texas 78205
(210) 354-1919
(210) 354-1920 Fax
Attorney for the Appellant,
CHRISTINA LYONS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was emailed to
Angie D. Roberts-Huckaby, Assistant District Attorney, angie.roberts@co.hays.tx.us
on the 18th day of May 2015.
/s/ Michael C. Gross
CERTIFICATE OF COMPLIANCE
1. The brief complies with the type-volume limitation imposed by Rule 9.4(i) of
the Texas Rules of Appellate Procedure because the brief contains 2,127 words
excluding the signature, proof of service, certification, certificate of compliance, and
appendix.
2. The brief complies with the typeface and the type style requirements of Rule
9.4(e) of the Texas Rules of Appellate Procedure because this brief has been prepared
in a proportionally spaced typeface using WordPerfect 6.1 in 14 point font and Times
New Roman type style.
/s/ Michael C. Gross
10