                                                                                  ACCEPTED
                                                                              01-14-00848-CR
                                                                   FIRST COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                         9/30/2015 9:06:21 AM
                                                                        CHRISTOPHER PRINE
                  No. 01-14-00848-CR                                                   CLERK

                              In the
                       Court of Appeals
                             For the                        FILED IN
                     First District of Texas         1st COURT OF APPEALS
                                                         HOUSTON, TEXAS
                           At Houston
                                                     9/30/2015 9:06:21 AM
                   ♦                       CHRISTOPHER A. PRINE
                          No. 1870305                        Clerk
           In the County Criminal Court at Law No. 4
                    Of Harris County, Texas
                   ♦
          NOMATHEMBA Y. SITAWISHA
                           Appellant
                              V.
               THE STATE OF TEXAS
                      Appellee
                  ♦
           STATE’S APPELLATE BRIEF
                  ♦

                                            DEVON ANDERSON
                                            District Attorney
                                            Harris County, Texas

                                            ERIC KUGLER
                                            Assistant District Attorney
                                            Harris County, Texas
                                            TBC No. 796910
                                            kugler_eric@dao.hctx.net

                                            CASEY LITTLE
                                            Assistant District Attorney
                                            Harris County, Texas

                                            1201 Franklin, Suite 600
                                            Houston, Texas 77002
                                            Tel: (713) 755-5826
                                            FAX: (713) 755-5809

                                            Counsel for Appellee

ORAL ARGUMENT REQUESTED ONLY IF GRANTED TO APPELLANT
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral

argument is granted to the appellant.


                    IDENTIFICATION OF THE PARTIES

Counsel for the State:

      Devon Anderson  District Attorney of Harris County

      Eric Kugler  Assistant District Attorney on appeal

      Casey Little  Assistant District Attorney at trial

Appellant or criminal defendant:

      Nomathemba Y. Sitawisha

Counsel for Appellant:

      Cheri Duncan  Assistant Public Defender on appeal

      Nomathemba Y. Sitawisha  Pro se at trial

Trial Judge:

      Hon. John Clinton  Presiding Judge




                                          i
                                       TABLE OF CONTENTS
                                                                                                           Page

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 1

REPLY TO APPELLANT’S SOLE POINT OF ERROR ......................................... 2
   A. The appellant knowingly and intelligently chose to represent herself with a
   full understanding of her right to counsel after receiving judicial admonishments
   on the dangers and disadvantages of self-representation. ......................................3
   B. Because the evidence of guilt was strong and the testifying toxicologist was
   subject to cross-examination, the appellant was not harmed by the lack of any
   admonishments on her alleged right to a taxpayer-funded toxicologist. .............10
CONCLUSION ........................................................................................................12

CERTIFICATE OF SERVICE AND COMPLIANCE ........................................... 13




                                                         ii
                                      INDEX OF AUTHORITIES


CASES

Ake v. Oklahoma,
  470 U.S. 68 (1985) .............................................................................................6, 8
Brady v. Maryland,
  373 U.S. 83 (1963) .................................................................................................9
Britt v. North Carolina,
  404 U.S. 226 (1971) ...............................................................................................6
Cain v. State,
  947 S.W.2d 262 (Tex. Crim. App. 1997) .............................................................10
Caldwell v. Mississippi,
  472 U.S. 320 (1985) ...............................................................................................7
Chadwick v. State,
  309 S.W.3d 558 (Tex. Crim. App. 2010) ...............................................................4
Dusky v. United States,
 362 U.S. 402 (1960) ...............................................................................................4
Faretta v. California,
  422 U.S. 806 (1975) ...............................................................................................3
Godinez v. Moran,
 509 U.S. 389 (1993) ...............................................................................................3
Indiana v. Edwards,
  554 U.S. 164 (2008) ...............................................................................................4
Johnson v. State,
  967 S.W.2d 410 (Tex. Crim. App. 1998) .............................................................10
Kane v. Garcia-Espitia,
  546 U.S. 9 (2006) ...................................................................................................7
King v. State,
  953 S.W.2d 266 (Tex. Crim. App. 1997) .............................................................10
Little v. Armontrout,
  835 F.2d 1240 (8th Cir. 1987) ................................................................................6



                                                          iii
Missouri v. Armentrout,
 8 S.W.3d 99 (Mo. 1999) ................................................................................ 5, 6, 9
Moore v. State,
 999 S.W.2d 385 (Tex. Crim. App. 1999) ...............................................................3
Morales v. State,
 32 S.W.3d 862 (Tex. Crim. App. 2000) ...............................................................11
Motilla v. State,
 78 S.W.3d 352 (Tex. Crim. App. 2002) ...............................................................11
Simmons v. United States,
  390 U.S. 377 (1968) ...............................................................................................6
United States v. Agurs,
 427 U.S. 97 (1976) .................................................................................................9
United States v. Bagley,
 473 U.S. 667 (1985) ...............................................................................................9
United States v. Wilson,
 690 F.2d 1267 (9th Cir. 1982) ................................................................................7
Uresti v. State,
  98 S.W.3d 321 (Tex. App.—
  Houston [1st Dist.] 2003, no pet.) ..........................................................................4
Williams v. Martin,
 618 F.2d 1021 (4th Cir. 1980) ................................................................................8


CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. VI ..............................................................................................3
U.S. CONST. amend. XIV ...........................................................................................3


STATUTES

TEX. CODE CRIM. PROC. art. 1.051 (West 2010) ........................................................3
TEX. PENAL CODE § 49.01 (West 2010).....................................................................8




                                                         iv
RULES

TEX. R. APP. P. 39....................................................................................................... i
TEX. R. APP. P. 44.2(b) .............................................................................................10




                                                            v
TO THE HONORABLE COURT OF APPEALS:


                            STATEMENT OF THE CASE

      The appellant was charged with DWI committed on December 29, 2012 (CR

– 7). She pled “not guilty” to the charge, and the case was tried to a jury (CR –

64). The jury found her guilty and assessed punishment at 105 days in jail on

October 1, 2014 (CR – 64). The appellant filed notice of appeal that same day, but

the trial court has not yet certified her right to appeal (CR – 67, 71).




                             STATEMENT OF FACTS

      During the night of December 29, 2012, Natasha Wilson and her husband

were on their way home when they saw a red sports car driven by the appellant

coming at full speed toward them (RR. IV – 13-14, 24, 29, 41-42). Wilson’s

husband reversed their vehicle to avoid a collision (RR. IV – 16). The appellant’s

sports car jumped the curb and crashed into a pole (RR. IV – 16-17, 36) (RR. V –

17). The appellant then nearly hit the Wilson’s vehicle a second time when she

tried to back out of the crash scene and leave the area (RR. IV – 17). Natasha

called 911 (RR. IV – 17).

      Jared Taylor with the Jersey Village Police Department was in the middle of

a traffic stop with another vehicle when someone pulled up to him and said, “Hey,
there was some lady back here who jumped the curve and hit a pole; and she

almost hit us….She’s parked back here.” (RR. IV – 35-36). Taylor drove over to

the appellant’s location with his emergency lights activated (RR. IV – 36). He saw

that the appellant’s vehicle had a damaged front windshield and some flat tires that

were consistent with running over a curb and hitting a pole (RR. IV – 38-39) (RR.

V – 12-13, 17). The appellant was still sitting in the driver’s seat, and the vehicle

was still running (RR. IV – 39) (RR. V – 12, 15).

      The appellant was lethargic, with half-opened eyes (RR. IV – 39). She was

belligerent, yelling, using profanity, and unsteady on her feet (RR. IV – 40) (RR. V

– 13-15). She also reeked of alcohol (RR. IV – 40) (RR. V – 13). She refused to

cooperate or perform any field sobriety tests, so the officers obtained a search

warrant for and a sample of her blood (RR. V – 67-80). She was arrested around

2:45 a.m.; the blood was drawn at 5:03 a.m., and it showed an alcohol level of

0.21, which was more than twice the legal limit (RR. V – 108-109, 171-172) (St.

Ex. 12).




            REPLY TO APPELLANT’S SOLE POINT OF ERROR

      In her sole point of error, the appellant complains that the trial court erred by

failing to advise her that she had the right to request funds for an expert witness.

(App’nt Brf. 3). This claim lacks merit because the appellant has failed to show


                                          2
that the Constitution requires state funding for a toxicologist in a routine DWI trial,

that the Constitution requires such funding where a defendant chooses to represent

herself, or that a trial court errs in failing to admonish a pro se litigant of the right

to receive such funding. Furthermore, the appellant was not harmed by the lack of

any such admonishments because the evidence of guilt was strong and the

testifying toxicologist was subject to cross-examination.



      A.     The appellant knowingly and intelligently chose to
             represent herself with a full understanding of her right to
             counsel after receiving judicial admonishments on the
             dangers and disadvantages of self-representation.
      The Sixth and Fourteenth Amendments to the United States Constitution

guarantee that a person brought to trial in any state or federal court may dispense

with counsel and make her own defense. Faretta v. California, 422 U.S. 806, 818–

20 (1975); Moore v. State, 999 S.W.2d 385, 386 (Tex. Crim. App. 1999); see also

U.S. CONST. amends. VI, XIV. Such a decision, to be constitutionally effective,

must be made: (1) competently, (2) knowingly and intelligently, and (3)

voluntarily. Godinez v. Moran, 509 U.S. 389, 400–01 (1993); Faretta, 422 U.S. at

834–36; see also TEX. CODE CRIM. PROC. art. 1.051 (West 2010). The decision to

waive counsel and proceed pro se is made “knowingly and intelligently” if it is

made with a full understanding of the right to counsel, which is being abandoned,

as well as the dangers and disadvantages of self-representation. Moore, 999


                                           3
S.W.2d at 409 n.5 (citing Faretta, 422 U.S. at 834–36). The decision is made

“voluntarily” if it is uncoerced. Id. (citing Godinez, 509 U.S. at 401 n.12).

      The standard of competency to waive counsel is the same as that required to

stand trial or to plead guilty: whether the defendant has sufficient present ability to

consult with her lawyer with a reasonable degree of rational understanding and has

a rational as well as factual understanding of the proceedings against her. See

Godinez, 509 U.S. at 395 (citing Dusky v. United States, 362 U.S. 402, 402

(1960)).   In addition, judges are permitted to “take realistic account of the

particular defendant’s mental capacities by asking whether a defendant who seeks

to conduct his own defense at trial is mentally competent to do so.” Indiana v.

Edwards, 554 U.S. 164, 177–78 (2008).

      Whether a party is competent to proceed pro se is a mixed question of law

and fact turning on an evaluation of credibility and demeanor; thus, this Court must

review the trial court’s ruling on the issue for an abuse of discretion. See Chadwick

v. State, 309 S.W.3d 558, 561 (Tex. Crim. App. 2010). This Court must also

afford almost total deference to the trial court’s rulings when the resolution of the

issue turns on an evaluation of credibility and demeanor, and view the evidence in

the light most favorable to those rulings. Id. And this Court must imply any

findings of fact supported by the evidence and necessary to support the ruling

when the trial court fails to make explicit findings. Id..



                                           4
      In the present case, the trial court conducted a Faretta hearing prior to

allowing the appellant to represent herself (RR. II – 4-6).            The appellant

acknowledged that she had a high school education with some additional college

classes and that she understood the dangers of being self-represented (RR. II – 4).

She also stated that she knew she was charged with a class A DWI that had a

penalty range “from probation to a dollar fine up to a year in jail and a 4,000-dollar

fine.” (RR. II – 4-5). She affirmed that she had to follow the rules of evidence and

procedure, that she would not be given special consideration, that she would not

obstruct the orderly procedure of the case, and that she had no right to standby

counsel (RR. II – 5). The appellant also signed written Faretta warnings, which

acknowledged her right to free legal counsel and repeated the oral warnings (CR –

46-47). Thus, the appellant was properly admonished, and the trial court did not

abuse its discretion in allowing the appellant to represent herself.

      The appellant claims that the trial court should also have admonished the

appellant that she had the right to the appointment of an expert witness on the issue

of intoxication. (App’nt Brf. 9-11). In Missouri v. Armentrout, 8 S.W.3d 99, 105

(Mo. 1999), the Missouri Supreme Court addressed a similar argument. It first

recognized that Faretta guarantees the accused in a criminal prosecution the right

to self-representation in lieu of the right to assistance of counsel. Id. It also noted

that the Sixth Amendment right to counsel encompasses “the basic tools for an



                                           5
adequate defense,” that must “be provided to those defendants who cannot afford

to pay for them.” Id. (citing Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). And it

stated that the State may not require a defendant to relinquish one of two

procedural rights in order to obtain the protection of the other. Armentrout, 8

S.W.3d at 105 (citing Simmons v. United States, 390 U.S. 377, 394 (1968)). But it

then concluded:

            In this case, it is clear that the appellant had the right to
      represent himself under Faretta. But it is not at all clear that Ake
      requires state funding for a toxicologist in a routine DWI trial, or that
      Ake, which involved a defendant represented by counsel, requires any
      funding whatsoever where a defendant chooses to represent himself.

Armentrout, 8 S.W.3d at 105; see also Little v. Armontrout, 835 F.2d 1240, 1243

(8th Cir. 1987) (“While the state need not provide the indigent with all the tools the

wealthy may buy, it must provide the defendant with the ‘basic tools of an

adequate defense.’”) (citing Britt v. North Carolina, 404 U.S. 226, 227 (1971)).

      Whether something is a basic tool of an adequate defense that the State must

provide to an indigent defendant depends on the circumstances. In Ake, the

Supreme Court specifically decided that the Constitution requires a state to provide

an indigent defendant with the assistance of a psychiatrist on the issue of the

defendant’s sanity at the time of the offense “when [the] defendant has made a

preliminary showing that his sanity at the time of the offense is likely to be a

significant factor at trial.” Ake, 470 U.S. at 74. Importantly, the Court noted that



                                          6
“the indigent defendant [does not] ha[ve] a constitutional right...to receive funds to

hire his own” psychiatrist, and left “to the State the decision on how to implement

this right.” Id., 470 U.S. at 83.

       In Caldwell v. Mississippi, 472 U.S. 320 (1985), the Supreme Court

suggested that Ake should not be read expansively:

              Petitioner also raises a challenge to his conviction, arguing that
       there was constitutional infirmity in the trial court’s refusal to appoint
       various experts and investigators to assist him.... [P]etitioner also
       requested appointment of a criminal investigator, a fingerprint expert,
       and a ballistics expert, and those requests were denied. The State
       Supreme Court affirmed the denials because the requests were
       accompanied by no showing as to their reasonableness..... Given that
       petitioner offered little more than undeveloped assertions that the
       requested assistance would be beneficial, we find no deprivation of
       due process in the trial judge’s decision. Cf. Ake [] (discussing
       showing that would entitle defendant to psychiatric assistance as
       matter of federal constitutional law). We therefore have no need to
       determine as a matter of federal constitutional law what if any
       showing would have entitled a defendant to assistance of the type here
       sought.

Id., 472 U.S. at 323 n.1.

       In United States v. Wilson, 690 F.2d 1267, 1271 (9th Cir. 1982), the Ninth

Circuit found that the right to self-representation did not include “further rights to

materials, facilities, or investigative or educational resources that might aid self-

representation.” And the Supreme Court adopted this view in Kane v. Garcia-

Espitia, 546 U.S. 9 (2006), stating, “Faretta says nothing about any specific legal

aid that the State owes a pro se criminal defendant…The…court below therefore



                                           7
erred in holding, based on Faretta, that a violation of a law library access right is a

basis for federal habeas relief.” Id., 546 U.S. at 10. Thus, without a clearly stated

intent from the Supreme Court to extend Faretta, this Court should not expand the

requirement of State-provided toxicologists in every DWI trial.

      The appellant attempts to limit the provision of taxpayer-funded

toxicologists to only DWI trials where the State has alleged a blood-alcohol level

of 0.15 or higher. (App’nt Brf. 6). But there is no principled reason for doing so.

Whether the 0.15 level is a substantive element of the offense is irrelevant on this

issue because intoxication is nevertheless defined in part as “having an alcohol

concentration of 0.08 or more.” TEX. PENAL CODE § 49.01 (West 2010). Thus, the

appellant’s rule would require “state funding for a toxicologist in a routine DWI

trial,” when such a requirement is not at all clear. Armentrout, 8 S.W.3d at 105.

Indeed, the circumstances under which the Constitution requires provision of such

experts remain few. See Ake, 470 U.S. 68 (requiring a psychiatrist to assist in

preparation and presentation of defense once defendant demonstrates that sanity is

likely to be significant issue at trial; however that right does not guarantee the

psychiatrist of defendant’s choice); Williams v. Martin, 618 F.2d 1021 (4th Cir.

1980) (holding pathologist required where a substantial question regarding the

cause of death required expert testimony). The appellant had failed to cite any

cases that have extended Ake to toxicologists in routine DWI cases.



                                          8
      The appellant cites United States v. Agurs, 427 U.S. 97 (1976), for the

proposition that evidence is “material, within the meaning of Ake, if its omission

would create ‘a reasonable doubt that did not otherwise exist’.” (App’nt Brf. 7).

But Agurs did not address Ake at all; Agurs dealt with the production of evidence

by the State to the defendant under Brady v. Maryland, 373 U.S. 83 (1963).

Furthermore, the holding in Agurs has since been modified by United States v.

Bagley, 473 U.S. 667 (1985). Under Bagley, evidence is material if its suppression

“undermines confidence in the outcome of the trial.” Id., 473 U.S. at 678. Thus,

Agurs has nothing relevant to say about the appellant’s argument.

      The appellant has failed to show that Ake requires state funding for a

toxicologist in a routine DWI trial, or that Ake, which involved a defendant

represented by counsel, requires any funding whatsoever where a defendant

chooses to represent himself. See Armentrout, 8 S.W.3d at 105. She has also failed

to show that, even if such funding were required, a trial court errs in failing to

admonish a pro se litigant of the right to receive such funding. Therefore, the

appellant’s sole point of error lacks merit and should be overruled. The conviction

should be affirmed.




                                        9
      B.      Because the evidence of guilt was strong and the testifying
              toxicologist was subject to cross-examination, the appellant
              was not harmed by the lack of any admonishments on her
              alleged right to a taxpayer-funded toxicologist.
      The Court of Criminal Appeals has stated that, “except for certain federal

constitutional errors labeled by the Supreme Court as ‘structural,’ no error, whether

it relates to jurisdiction, voluntariness of a plea, or any other mandatory

requirement, is categorically immune to a harmless error analysis.” Cain v. State,

947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Therefore, this Court must apply

Rule 44.2(b) of the Texas Rules of Appellate Procedure and determine whether the

lack of additional admonishment has affected the appellant’s substantial rights.

TEX. R. APP. P. 44.2(b) .

      Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any

non-constitutional “error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b). A substantial right

is affected when an error has a substantial, injurious effect or influence in

determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.

App. 1997). If, on the record as a whole, it appears the error “did not influence the

jury, or had but a slight effect,” this Court must consider the error harmless and

allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998).




                                         10
      The weight of the evidence of the defendant’s guilt is a relevant factor in

conducting a harm analysis under Rule 44.2(b). Motilla v. State, 78 S.W.3d 352,

360 (Tex. Crim. App. 2002) (quoting Morales v. State, 32 S.W.3d 862, 867 (Tex.

Crim. App. 2000)). And the evidence supporting the appellant’s guilt was strong.

She was found by a police officer in the driver’s seat with her sports car still

running (RR. IV – 39) (RR. V – 12, 15). She was lethargic, acted belligerent, used

profanity, was unsteady on her feet, reeked of alcohol, and refused to cooperate or

perform any field sobriety tests (RR. IV – 39-40) (RR. V – 13-15, 67-80). Her

condition and the condition of the vehicle corroborated the credible testimony of

the citizens who were almost her victims. Finally, more than two hours after the

crash, her blood alcohol level was still in the stratosphere (RR. V – 108-109, 171-

172) (St. Ex. 12).

      Another relevant factor in a harm analysis under Rule 44.2(b) is “the

character of the alleged error and how it might be considered in connection with

other evidence in the case.” Id., 78 S.W.3d at 359 (quoting Morales v. State, 32

S.W.3d 862, 867 (Tex. Crim. App. 2000)). In the present case, the appellant had

ample opportunity to cross-examine the toxicologist who testified at trial, and she

did so over the course of more than thirty pages of the reporter’s record and

through two recrosses (RR. V – 172-199, 203-206, 207-208). Furthermore, while

the appellant claims that her case is unique because she was accused of having a



                                        11
blood alcohol level of over 0.15, the judgment reflects that the appellant was found

guilty of the class B misdemeanor of “DWI 1st Offender BAC .08.” (CR – 64).

Thus, the lack of admonishments on her alleged right to a taxpayer-funded

toxicologist could not have had more than a slight effect on the verdict. The

appellant was not harmed, and her sole point of error should be overruled



                                 CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.

                                                   DEVON ANDERSON
                                                   District Attorney
                                                   Harris County, Texas

                                                   /s/ Eric Kugler
                                                   ERIC KUGLER
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002-1923
                                                   (713) 755-5826
                                                   kugler_eric@dao.hctx.net
                                                   TBC No. 796910




                                        12
              CERTIFICATE OF SERVICE AND COMPLIANCE
      This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 3,562 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:

      Cheri Duncan
      Assistant Public Defender
      Harris County, Texas
      1201 Franklin, 13th Floor
      Houston, Texas 77002
      Cheri.duncan@pdo.hctx.net

                                                  /s/ Eric Kugler
                                                  ERIC KUGLER
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002-1923
                                                  (713) 755-5826
                                                  TBC No. 796910
Date: September 30, 2015




                                       13
