                                 NO. 07-09-00267-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                     MAY 11, 2011


                       DONALD WAYNE MASON, APPELLANT

                                           v.

                         THE STATE OF TEXAS, APPELLEE


              FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

              NO. 57,197-A; HONORABLE RICHARD DAMBOLD, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                       OPINION


      The motion for rehearing of appellant Donald Wayne Mason is denied.            We

withdraw our opinion and judgment of April 14, 2011, and substitute the following.


      A jury convicted appellant of driving while intoxicated,1 enhanced by two prior

convictions for driving while intoxicated. The trial court sentenced appellant to twenty-




      1
          Tex. Penal Code Ann. § 49.04(a) (West 2003).
five years in prison.2 On appeal, appellant argues he was denied equal protection of

law and due process and due course of law by the trial court’s order denying his ex

parte pretrial motion for appointment of an expert. Appellant further contends without

appointment of an expert he was constructively denied effective assistance of counsel.

Finding no error by the trial court, we will affirm.


                                         Background


       A witness testified he saw a van driven by appellant hit a stop sign and run over

a mailbox. Because of a flat tire, the van was unable to leave the scene. The witness

observed appellant and his passenger outside the vehicle. In his opinion, they could

hardly stand.      He immediately telephoned 911 because he “knew they were

intoxicated.” Meanwhile, a pedestrian approached the van and changed the flat tire for

cash. Appellant and his passenger then drove the van from the scene.


       When police arrived the witness gave officers the license plate number of the van

as well as a description of the vehicle and appellant. Shortly thereafter an officer saw a

van fitting the description. Before the officer reached the vehicle it parked on the street.

The officer approached the driver’s side and told appellant to step out of the vehicle.

The officer noted a “strong odor” of an alcoholic beverage coming from appellant and

the interior of the vehicle. The officer described appellant’s speech as “very slurred,




       2
         The offense was enhanced to a third degree felony by Penal Code §
49.09(b)(2) and the range of punishment increased to a term of 25 to 99 years in prison
by Penal Code § 12.42(d). Tex. Penal Code Ann. §§ 49.09(b)(2) & 12.42(d) (West
Supp. 2010).
                                               2
hard to understand.” The passenger, according to the officer, also smelled of alcohol

and presented slurred speech.


       Inside the van, police found nine one-quart beer bottles. Three bottles were

empty, one was three-fourths empty, one was three-fourths full, and four were full.

Appellant told the officer he had consumed two and one-half to three quarts of beer. He

did not specify a time interval for his consumption.     The officer opined at trial that

appellant and his passenger were intoxicated.


       While appellant was detained, a second officer arrived at the location.         He

testified appellant presented a “strong odor of alcoholic beverage,” appeared to lack

balance, and swayed. In that officer’s opinion, appellant was intoxicated.


       A third officer arrived at the scene. He testified appellant’s breath smelled of

alcohol and he had difficulty standing. The officer could not recall the intensity of the

odor of alcohol.    He administered a horizontal gaze nystagmus test (HGN) and

observed all six clues of intoxication. At trial, he expressed the opinion that appellant

was intoxicated.


       Appellant was arrested and taken to the county jail.         There he voluntarily

submitted to a breath test which indicated an alcohol concentration of 0.097 and 0.095.

Because appellant was involved in an accident police took him to a local hospital for

examination. While at the hospital, some five hours after his initial detention, appellant

voluntarily provided a blood sample. The result indicated a blood-alcohol concentration

of 0.04.


                                            3
       In addition to the testimony of the witness and police officers, the jury saw video

recordings of appellant at the time of arrest and later the same day at the county jail.

Appellant’s younger brother testified for appellant. He was age fifty-two and appellant

age sixty-eight. Appellant was involved in an accident before the witness’s birth which

left appellant with a speech impairment. According to his brother, appellant’s speech is

slurred and sometimes hard to understand.           He added appellant has equilibrium

problems and twice fractured a bone in his ankle due to his gait. On cross-examination,

he denied appellant drinks on a regular basis.


       Consistent with the indictment, the jury charge authorized a finding that appellant

was intoxicated under the per se definition of intoxication--that his alcohol concentration

was 0.08 or more--or under the impairment theory--that he did not have the normal use

of his mental or physical faculties by reason of the introduction of alcohol into his body.3

The jury found appellant guilty and the trial court sentenced him to confinement in

prison for twenty-five years.


                                         Analysis


       Through three issues, appellant argues the trial court’s denial of his request for

an expert denied him equal protection of law, due process of law and due course of law,

and effective assistance of counsel. We turn first to appellant’s constitutional claims.


       We review the trial court’s failure to appoint an expert witness for an abuse of

discretion. See Deason v. State, 84 S.W.3d 793, 796 (Tex.App.--Houston [1st Dist.]

2002, pet. refused) (citing Griffith v. State, 983 S.W.2d 282, 287 (Tex.Crim.App. 1998)).
       3
           See Tex. Penal Code Ann. § 49.01(2) (West 2003).
                                             4
Constitutional entitlement to a court-appointed expert required appellant to make a

sufficient preliminary showing before the trial court that the subject of the expert’s

testimony would likely be a significant factor at trial. Ake v. Oklahoma, 470 U.S. 68, 74,

105 S.Ct. 1087, 1091-92, 84 L.Ed.2d 53 (1985); see Rey v. State, 897 S.W.2d 333, 338

(Tex.Crim.App. 1995) (while Ake concerned appointment of a psychiatrist, field of

expertise is not decisive; rather, question is importance of scientific issue in case and

degree of assistance defense expert could provide). The threshold showing under Ake

requires more “than undeveloped assertions that the requested assistance would be

beneficial.”   Williams v. State, 958 S.W.2d 186, 192 (Tex.Crim.App. 1997) (citing

Caldwell v. Mississippi, 472 U.S. 320, 323-24 n.1, 86 L.Ed.2d 231, 105 S.Ct. 2633

(1985)). Mere conclusions of defense counsel will not suffice. Norton v. State, 930

S.W.2d 101, 111 (Tex.App.--Amarillo 1996, pet. refused). Rather, the defendant must

demonstrate a reasonable probability an expert will provide assistance and denial of

expert assistance will cause a fundamentally unfair trial. Id. at 106-07; Davis v. State,

905 S.W.2d 655, 659 (Tex.App.--Texarkana 1995, pet. refused) (citing Moore v. Kemp,

809 F.2d 702, 712 (11th Cir. 1987)).      This requires proof by the defendant of his

defensive theory supported with factual allegations or evidence of how the requested

expert testimony will support the theory. See Rey, 897 S.W.2d at 341 (discussing cases

where a sufficient preliminary showing under Ake was not made). “There is no error in

refusing to appoint an expert witness to assist an indigent defendant in rebutting a type

of expert opinion that the State’s witness did not present.”      Jackson v. State, 992

S.W.2d 469, 474 n.5 (Tex.Crim.App. 1999) (citing Griffith v. State, 983 S.W.2d 282



                                            5
(Tex.Crim.App. 1998)). The reasonableness of the trial court’s decision is determined

as of the time it was made. Rey, 897 S.W.2d at 342 n.9.


       Over one year before trial, appellant filed an ex parte motion requesting

appointment of Gary H. Wimbish, Ph.D., as an expert. Appellant identified Dr. Wimbish

as a forensic toxicologist. According to the motion, appellant’s blood-alcohol level was

an issue in the case and neither he nor his counsel was “knowledgeable in the aforesaid

sciences to determine and assess the significance of the facts surrounding these

potential issues.”    The intended function of Dr. Wimbish was to “administer the

necessary tests which will provide us with information as to proper extrapolation of

blood/alcohol levels of defendant. Should the testing so indicate, the Defense would

then require expert testimony of [Dr. Wimbish] at the trial.” In the prayer, appellant

requested expert assistance for the investigation, evaluation, preparation and

presentation of his case. The motion was not supported by affidavits or other evidence

and we have no record of a hearing. The trial court denied the motion.


       Nothing further concerning the motion appears of record until the day trial began.

During the hearing of pretrial motions appellant’s counsel notified the court that

appellant wished to re-urge the motion for appointment of an expert. The court verbally

denied the request. Appellant then asked for additional time to hire an expert at his own

expense. The court ruled appellant could not have a continuance but was free to hire

an expert. The State indicated it had no objection to appellant’s use of an expert.

Appellant did not offer the testimony of an expert at trial.




                                              6
       Fairly read, appellant’s motion sought expert assistance on a narrow ground,

testing to provide information for proper extrapolation of appellant’s blood-alcohol

concentration and possible trial testimony conditioned on the testing results. There is

no record indication the State intended to offer retrograde extrapolation opinion

testimony requiring expert rebuttal by appellant.4 In other words, there was no proof

before the trial court at the time it considered appellant’s motion that the State intended

to present extrapolation opinion evidence of appellant’s blood-alcohol concentration. At

trial, the State offered witnesses supporting both the per se and impairment theories of

intoxication. But the State offered no expert opinion of appellant’s blood-alcohol level at

the time of driving based on the process of retrograde extrapolation.


       Nor did appellant give the trial court any basis for a conclusion that extrapolation

opinion evidence would be a significant factor in his case at trial. The motion itself

contained no facts supporting such a conclusion and, as noted, no affidavit or other

evidence appears in the record before us. The court cannot be said to have erred by

failing to appoint appellant an expert on extrapolation.


       If his request for an expert is read more broadly, appellant offered the trial court

no explanation of the claim that an expert was needed for “a determination of whether

       4
         “Retrograde extrapolation is the computation back in time of blood-alcohol
level-that is, the estimation of the level at the time of driving based on a test result from
some later time.” Mata v. State, 46 S.W.3d 902, 908-09 (Tex.Crim.App. 2001).
Following this procedure, an expert possessing sufficient information concerning such
variables as an individual’s weight, age, mental state, drinking pattern, type and amount
of alcohol consumed, amount of food in the stomach, and the time period of alcohol
consumption, can reliably estimate a person’s blood-alcohol concentration at the time of
driving. See Kirsch v. State, 306 S.W.3d 738, 745 n.19 (Tex.Crim.App. 2010)
(explaining Mata). But the process also presents limitations and pitfalls which laymen
and courts often fail to appreciate. Id.
                                             7
the Defendant may raise and prevail on certain defensive issues.” Appellant presented

no explanation of his defensive theory, how an expert would be useful in establishing

the theory, or a reason to question a State’s expert and proof. See Rey, 897 S.W.2d at

341 (citing State v. Edwards, 868 S.W.2d 682, 697-98 (Tenn.Crim.App. 1993) (while

identity was “obvious issue” defendant did not make sufficient preliminary showing for a

DNA expert as he did not disclose defense proof and gave no indication of potential

misidentification as to specific charges)).       We conclude appellant did not meet the

threshold requirement for appointment of the requested expert.


      On this record, we perceive no abuse of discretion in the trial court’s denial of the

requested assistance of a court-appointed expert, and thus conclude appellant did not

suffer the complained-of constitutional harm. See Rey 897 S.W.2d at 341; Wiley v.

State, 74 S.W.3d 399, 408 (Tex.Crim.App. 2002) (concluding appellant was not

deprived constitutional right to present defense because trial court did not abuse its

discretion in excluding evidence under Texas Rule of Evidence 403).


      We overrule appellant’s first and second issues.


      By his third issue, appellant asserts he was constructively denied effective

assistance of counsel by the trial court’s failure to appoint an expert. Because we have

found appellant was not entitled to appointment of an expert, an analysis of this issue is

unnecessary to the final disposition of this appeal. Tex. R. App. P. 47.1.




                                              8
                                      Conclusion


      Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                                      James T. Campbell
                                                           Justice




Publish.




                                           9
