                                                                            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.




                                           11
                                       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
                                          12
                           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
