                                                                                           ACCEPTED
                                                                                       03-12-00474-CR
                                                                                               5330530
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                  5/18/2015 5:14:32 PM
                                                                                     JEFFREY D. KYLE
                              NO. 03-12-00474-CR                                                CLERK




                                                       FILED IN
                  IN THE COURT OF APPEALS FOR THE3rd COURT OF APPEALS
                                                                AUSTIN, TEXAS
                          THIRD DISTRICT OF TEXAS            5/18/2015 5:14:32 PM
                                                               JEFFREY D. KYLE
                                                                     Clerk
                                AUSTIN, TEXAS


                             CHRISTINA LYONS,
                                       Appellant

                                       V.

                              STATE OF TEXAS,
                                        Appellee


                              Appealed From The
                           22nd Judicial District Court
                             Of Hays County, Texas


                APPELLANT’S MOTION FOR REHEARING


TO THE HONORABLE COURT OF APPEALS:

      CHRISTINA LYONS, the Appellant in Cause Number CR-11-0101 in the

22nd District Court of Hays County, Texas, pursuant to Rule 49 of the Texas Rules

of Appellate Procedure, submits this Motion for Rehearing moving this Honorable

Court to reconsider its Opinion of February 26, 2015 affirming the judgment and

sentence of conviction.

                                        1
                    GROUND FOR REVIEW NUMBER ONE

             THE COURT OF APPEALS ERRED BY RULING
             THAT THE TRIAL JUDGE’S DENIAL OF
             ADDITIONAL TIME FOR A DEFENSE EXPERT TO
             BE ABLE TO ASSIST IN THE PREPARATION OF
             AND PRESENTATION OF THE DEFENSE IS
             SUBJECT TO AN ABUSE OF DISCRETION
             STANDARD.

                       ARGUMENT AND AUTHORITIES

      In the case at bar, this Court held that a trial judge’s denial of additional time

in order for a defense expert to be able to assist in the preparation and presentation

of the defense was subject to an abuse of discretion standard. Lyons v. State, No. 03-

12-00474-CR at 6-9, 20 (Tex. App. - Austin, February 26, 2015). The Court of

Criminal Appeals has held, however, that a trial judge’s denial to the defense of

access to expert assistance to assist in the preparation and presentation of a defense

was structural error and not subject to a harmless error analysis. Rey v. State, 897

S.W.2d 333 (Tex. Crim. App. 1995). Where a capital defendant has an interest in the

accuracy of the proceedings, the State maintains an interest in the accuracy of the

result of the trial, and a defense expert is required to assist in the defensive theory of

the case and present the jury with alternative theories, a trial judge’s denial of access

to such a defense expert is structural error and not subject to a harm analysis. Id.

      In Rey v. State, the defendant was charged with capital murder. Id. The State

alleged that the defendant caused the death of the complainant in the course of
                                            2
committing burglary of a house during which time the complainant received injuries

to the head. Id. The defense claimed that the complainant died of a heart attack, not

injuries to the head, and the defense informed the trial judge prior to trial and again

during trial that an expert pathologist was needed to assist the defense in this regard.

Id. The trial judge denied the defense access to such an expert. Id. The Court of

Criminal Appeals held that access to such an expert pathologist was a “‘basic tool’

essential to developing and presenting his defensive theory.” Id. The Court held that

the denial of access to such a “basic tool” was structural error not subject to a harm

analysis. Id.

      Rey v. State cited Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d

53 (1985) for the proposition that a defendant must be provided with “the basic tools

to present his defense within our adversarial system.” Id. The Rey court recognized

that Ake “placed the greatest emphasis on the third factor, discussing the importance

of [defense expert] testimony in conveying to the factfinder an understanding of the

defendant’s [defensive issues] . . .” Id. The Rey court also recognized that Ake was

concerned that “the risk of an inaccurate verdict was high where the defendant was

not assisted by a [defense expert] to ‘help determine whether the [] defense is viable,

to present testimony, and to assist in preparing the cross-examination of a State’s

[expert] witnesses.” Id. Where a scientific issue is likely to be a significant factor, “a

                                            3
defense may be devastated by the absence of a [defense expert’s] examination and

testimony; with such assistance, the defendant might have a reasonable chance of

success.” Id.

      The Rey court stated that, “The adversarial model rests on the assumption that

each party to a dispute, motivated by self-interest, will develop his position to the

greatest extent possible . . . thus providing the factfinder an optimal vantage from

which to gauge all relevant facts and make an informed decision on the merits.” Id.,

citing DeFreece v. State, 848 S.W.2d 150 (Tex. Crim. App.), cert. denied, 510 U.S.

905, 114 S.Ct. 284, 126 L.Ed.2d 234 (1993). The court further explained:

                In an adversarial system due process requires at least a
                reasonably level playing field at trial . . . It also means the
                appointment of a [defense expert] to provide technical
                assistance to the accused, to help evaluate the strength of
                his defense, to offer his own expert diagnosis at trial if it is
                favorable to that defense, and to identify the weaknesses in
                the State’s case, if any, by testifying himself and/or
                preparing counsel to cross-examine opposing experts.

Id.

      Rey v. State determined that this type of error is structural and cannot be

evaluated for harm:

                This analysis leads us to ask whether the error in the instant
                case was structural error or trial error. We conclude the
                error is structural. We would first point out, as we have
                previously noted, that the Supreme Court in Ake reversed

                                               4
              and remanded for a new trial without conducting a harm
              analysis. See DeFreece, 848 S.W.2d at 160. It is clear from
              a reading of Ake that the error at issue is structural in
              nature. The Court’s analysis in Ake began with a revisiting
              of the “elementary principle” that every criminal defendant,
              indigent or otherwise, must have “a fair opportunity to
              present his defense.” Ake, 470 U.S. at 76. The Court spoke
              in terms of the “basic tools of an adequate defense” and the
              “raw materials integral to the building of an effective
              defense” in concluding that in certain defined
              circumstances, discussed at length earlier in this opinion,
              a defense expert is such an element . . . We can conceive of
              few errors that are more structural in nature than one which
              eliminates a basic tool of an adequate defense and in doing
              so dramatically affects the accuracy of the jury’s
              determination . . .

Id. (Emphasis added).

       In the case at bar, counsel was appointed on January 17, 2012 to represent the

Appellant in this capital murder case. Lyons v. State, supra, at 8. Trial was scheduled

for June 2012. Id. Counsel timely requested discovery but was not initially provided

with the crucial medical records or radiological films of the complainant. (R - v.2 -

5-6).1 Three weeks prior to trial, counsel received these discovery items totaling

approximately 1000 pages and obtained a neuro-radiologist expert to review these

records. Id. On May 23, 2012, the defense expert informed counsel that a pathologist

would be needed to explain to the jury that the injuries to the complainant could have


       1
        The clerk’s record will be referred to as “T and page number.” The court reporter’s
record will be referred to as “R and volume and page number.”

                                               5
been caused by a fall to the ceramic floor or by the Appellant’s other child. Id.

Counsel located a pathologist, but that expert informed counsel that the expert could

not be prepared for trial in the time remaining before trial was scheduled to begin. Id.

at 8. Counsel filed with the trial judge an ex parte motion for continuance which

outlined the pathologist’s (Dr. Willey’s) concerns:

             Dr. Willey would be willing to testify in this case, but
             cannot do so in the time frame currently provided. Dr.
             Willey has made a preliminary review of the evidence in
             this case, and although he cannot make a final
             determination, and indeed is requesting more information
             than what Counsel currently has in his possession, Dr.
             Willey has informed the defense that these types of injuries
             could have been caused by a short fall onto a hard surface,
             like the ceramic floors of Defendant’s home (located by the
             back door). In addition, the injuries could have been caused
             by another child who was present in the home, and has
             admitted to injuring the victim in this case. Dr. Willey’s
             initial analysis is consistent with the defensive theory.

Lyons v. State, supra at 7.

      The trial judge refused to provide to the defense additional time for this defense

pathology expert to be able to assist in the preparation and presentation of the

defense. The State called the following expert witnesses: a pediatric radiologist, a

department head of pediatric neurosurgery, a program director for pediatrics

residency training, and a medical examiner pathologist. Lyons v. State, supra at 16-

17. No defense expert testified in support of the defense theory that the injuries could

have been caused by a fall on a hard surface or could have been caused by another

                                           6
child in the house. Id. at 5. Additionally, no defense expert pathologist assisted

counsel in the cross-examination of the State’s experts.

       The defense expert pathologist would have been able to explain to the jury that

the complainant suffered from weak bone density and fragility of the skull bones in

particular. See Appellant’s Brief at 55. The defense expert pathologist would have

been able to then explain to the jury that the complainant was susceptible to the

injuries sustained by the complainant by means of a short fall or by the actions of a

four-year-old person. Id. This was the key to the Appellant’s defense. Id. The defense

expert would have been able to assist the defense in cross-examination of the State’s

expert witnesses who all disagreed that a four-year-old could have caused the injuries

to the complainant. Id. Previous counsel withdrew from the case after being denied

the assistance of court-appointed experts. Id. at 6. It appears that the trial judge in the

case at bar circumvented the decision whether or not to appoint the defense expert

pathologist by merely denying the continuance request. This, in effect, was the denial

of expert assistance. The defense expert pathologist was not appointed to assist

counsel during this capital murder trial.

       The Appellant was not provided with the basic tools to present her defense

within our adversarial system. It was crucial in the Appellant’s trial that a defense

expert pathologist convey to the jury an understanding of the defense regarding the

                                            7
bone condition of the complainant and the fact that a four-year-old could have caused

the injuries sustained by the complainant. Given the lack of assistance by a defense

expert pathologist, the risk of an inaccurate verdict is high since the Appellant was

not assisted by a defense expert pathologist to present testimony and to assist in

preparing the cross-examination of the State’s four expert witnesses. The Appellant’s

defense was devastated by the absence of the defense expert’s examination and

testimony and assistance to defense counsel for the cross-examination of the State’s

four expert witnesses.

      The adversarial model was not followed in the Appellant’s case since the

Appellant, without the assistance of a defense expert pathologist, was unable to

develop her defense to the greatest extent possible. This resulted in the jury not

receiving an optimal vantage from which to gauge all relevant facts and make an

informed decision on the merits. The Appellant’s right to due process was violated

since the Appellant was denied at least a reasonably level playing field at trial given

the State’s four expert witnesses as opposed to no defense expert pathologist.

Additionally, the Appellant was deprived of the technical assistance of a defense

expert pathologist to help evaluate the strength of her defense, to offer his own expert

diagnosis at trial favorable to that defense, and to identify the weaknesses in the

State’s case by testifying himself and preparing counsel to cross-examine opposing

                                           8
experts. The Appellant’s access to such an expert pathologist was a basic tool

essential to developing and presenting her defensive theory just as in Rey v. State.

This denial of access to such a basic tool was structural error not subject to a harm

analysis. This Court, however, improperly applied an abuse of discretion standard.

       Based upon the above, this Honorable Court should withdraw its opinion of

February 26, 2015, hold that the denial of additional time for a defense expert in

pathology to be able to assist in the preparation and presentation of the defense was

structural error, sustain the Appellant’s points of error, and remand this cause to the

trial court for a new trial.

                                      PRAYER

       WHEREFORE, for the reasons stated above and for the reasons stated in the

Brief for the Appellant, this Court should grant the Appellant’s Motion for Rehearing

and upon rehearing, reverse the judgment of the trial judge and remand this cause for

a new trial.




                                          9
                                        Respectfully submitted,

                                        GROSS & ESPARZA, P.L.L.C.


                                        /s/ Michael C. Gross
                                        Michael C. Gross
                                        State Bar No. 08534480
                                        106 South St. Mary’s Street, Suite 260
                                        San Antonio, Texas 78205
                                        (210) 354-1919
                                        (210) 354-1920 Fax

                                        Attorney for the Appellant,
                                        CHRISTINA LYONS

                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing was emailed to
Angie D. Roberts-Huckaby, Assistant District Attorney, angie.roberts@co.hays.tx.us
on the 18th day of May 2015.

                                        /s/ Michael C. Gross

                       CERTIFICATE OF COMPLIANCE

1.    The brief complies with the type-volume limitation imposed by Rule 9.4(i) of
the Texas Rules of Appellate Procedure because the brief contains 2,127 words
excluding the signature, proof of service, certification, certificate of compliance, and
appendix.

2.     The brief complies with the typeface and the type style requirements of Rule
9.4(e) of the Texas Rules of Appellate Procedure because this brief has been prepared
in a proportionally spaced typeface using WordPerfect 6.1 in 14 point font and Times
New Roman type style.

                                        /s/ Michael C. Gross

                                          10
