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- 00 848- CR I N T HE C OURT O F A PPEALS F OR T HE F IRST D ISTRICT O F T EXAS

N OMATHEMBA Y. S ITAWISHA

Appellant

v
.

THE S TATE OF T EXAS Appellee

On Appeal from Cause Number 1870305 County Criminal Court at Law No. 4 Honorable John Clinton, Presiding

B RIEF FOR A

PPELLANT

O RAL A RGUMENT R EQUESTED A LEXANDER B UNIN Chief Public Defender Harris County, Texas
C HERI D UNCAN Assistant Public Defender Texas Bar No. 06210500

E LIZABETH S AKAI Legal Intern 1201 Franklin, 13 th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278 cheri.duncan@pdo.hctx.net Counsel for Appellant ACCEPTED 01-14-00848-CR FIRST COURT OF APPEALS

HOUSTON, TEXAS 7/31/2015 7:51:09 AM CHRISTOPHER PRINE

CLERKii I DENTITY OF P ARTIES AND C OUNSEL

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, 13 th Floor Houston, TX 77002iii T ABLE OF C ONTENTS
I DENTITY OF P ARTIES AND C OUNSEL

................................ ................................ ................... ii
T ABLE OF C ONTENTS

................................ ................................ ................................ ............. iii

I NDEX OF A UTHORITIES

................................ ................................ ................................ ....... iv
S TATEMENT OF THE C ASE

................................ ................................ ................................ ..... 1

I SSUE P RESENTED
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

S TATEMENT OF F ACTS

................................ ................................ ................................ ............ 1
S UMMARY OF THE A RGUMENT

................................ ................................ .............................. 1
A RGUMENT

................................ ................................ ................................ ............................. 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.

................................ ................................ ................................ ........ 9iv

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
C ONCLUSION

................................ ................................ ................................ ........................ 11

P RAYER

................................ ................................ ................................ ................................ .. 12
C ERTIFICATE OF S ERVICE

................................ ................................ ................................ .... 12
C ERTIFICATE OF C OMPLIANCE

................................ ................................ ........................... 13v I NDEX OF A

UTHORITIES

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 [14 th 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. C ONSTIT

. AMEND

. V

................................ ................................ ................................ ....... 6
U.S. C ONSTIT

. AMEND

. VI

................................ ................................ ................................ ..... 6
U.S. C ONSTIT

. AMEND

. XIV

................................ ................................ ................................ .. 6vi

Statutes and Rules
T EX

. P ENAL C ODE § 49.04

................................ ................................ ............................ 1 , 6, 7
T EX

. R. A PP

. P ROC . 44.2

................................ ................................ ................................ ........ 4

Books
R ICHARD A LPERT , DWI I NVESTIGATION & P ROSECUTION (2005)

................................ . 81 S TATEMENT OF THE C ASE 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 se t 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.

I SSUE P RESENTED
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?

S TATEMENT OF F ACTS
Nomathemba Y. Sitawisha was charged with driving while intoxicated with a
blood alcohol c oncentration of more than 0.15 at the time of the analysis, a Class A
misdemeanor under T EX

. P ENAL C ODE § 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 st rike 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 arr ived. Jersey City police officer Jared Taylor testified that when he got to the scene, Ms. Sitawisha was sitting in the red2

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 th at 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 wo uld 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

s tate’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 testif y for the defense at trial . The blood test results were critical because they were the sole evidence supporting the jury’s affirmative3

finding on the special issue that asked whether Appellant’s blood alcohol level was greater than .15. Representing hersel f, Ms. Sitawisha , who is a college student, cross

- examine d
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. Fes sessework Guale (whom the state had not subpoenaed) , so she could question h er 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 t he 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.
S UMMARY OF THE A RGUMENT A defendant in a criminal case has a right to funds for an expert if she
demons trates 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.4

A defendant who chooses to waive the right to co unsel 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 ha ve 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 beyon d a reasonable
doubt. Her conviction should be reversed.

A RGUMENT Ms. Sitawisha was both indigent and pro se. Due p rocess required the trial court to ensure that she understood her right to expert assistance, as well as her right
to assista nce of counsel

. A. Standard of review
This case should be reviewed under constitutional error standard of T EX

. R.
A PP

. P ROC . 44.2(a): t he court must reverse a judgment unless it determines beyond a5

reasonable doubt that the error did not contribute to the convict ion 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 ) (T he effect of denyi ng 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.
T he 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
mak es a threshold showing that the assistance is reasonably necessary for the preparation and presentation of an adequate defense. See i d . at 74 (The Constitution requires the state to provide a psychiatric expert to a defendant who cannot afford

one , when th e 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 t estimony; 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.6

E xpert 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 p rocess requires t he state to prove each element of the offense beyond a
reasonable doubt. U.S. C ONSTIT

. AMEND . V (due process) 1 ; U.S. C ONSTIT

. 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 e ssential element

. See T EXAS P ENAL C ODE § 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 secti on is a Class B misdemeanor, with a mi n imum 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. C ONSTIT

. AMEND

. XIV.7 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, a n enhancement does not change the degree of an
offense. See Calton v. State , 176 S.W.3d 231, 233 (Tex. Crim. App. 2005)

. A b lood alcohol concentration of .15 or greater, however, does increase the degree of the
offense. See T EX

. P ENAL C ODE § 49.04(d), supra. For this reason, “ (i)t is

... an element of a separate offense because it represents a specific type of forbidde n
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 [14 th Dist.] July 7, 2015 , no pet. h. )

. T he allegation that Ms. Sitawis ha’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 represent ed 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
reasona ble 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.8

Blood test evidence is subject to attack on a number of grounds. The test itself
can be attacked on at least t hree fronts: the collection of the specimen, the storage of the specimen before testing, and the test itself. See R ICHARD A LPERT , DWI

I NVESTIGATION & P ROSECUTION 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 hi m (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 result s
. 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

.9

E

. The State had a duty to provid e Ms. Sitawisha wit h funds for an expert witn ess . W ithout Ake funds , she d id 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 wa s 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 proce ss 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, t he Ake error prevented Ms. Sitawisha from developing h er own
blood test evidence to rebut the state’s evidence and to present h er 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

).10

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. S tate , 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. T he judge’s failure to take these simple steps made the trial fundamentally
unfair.11

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 a ssistance, at least in cases in which the
indictment makes it obvious that the evidence is material. T he 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 wi ll be provided at state expense if s he is unable
to afford one. See Miranda v. Arizona , 384 U.S. 436 (1966).
C ONCLUSION The right to self

- representation does not exclude the right to expert assistance. If the state relies on expert testimony to prove an el ement 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 c annot 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.12 P RAYER 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, 13 th floor Houston Texas 77002 (713) 368

- 0016 telephone (713) 437

- 4318 e

- f

ax cheri.duncan@pdo.hctx.net

C ERTIFICATE OF S ERVICE I certify that a copy of this brief was served electronically on the Harris County District Attorney’s Office on July 3 1 , 2015

.

/s/ Cheri Duncan

__________________________________ Cheri Duncan13 C ERTIFICATE OF C OMPLIANCE I certify that this brief complies with Rule 9.2, T EX

. R. A PP

. P ROC . It was prepared on a computer using 14

- point Garamond type. It contains 2,796 words.

/s/ Cheri Duncan

____________________________________ Cheri Duncan