Opinion issued June 21, 2016




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-14-00848-CR
                            ———————————
                 NOMATHEMBA Y. SITAWISHA, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


           On Appeal from the County Criminal Court at Law No. 4
                            Harris County, Texas
                        Trial Court Case No. 1870305


                                  OPINION

      A jury convicted Nomathemba Y. Sitawisha of driving while intoxicated

with an alcohol concentration level of more than 0.15. See TEX. PENAL

CODE § 49.04(d). The jury assessed punishment at 105 days of imprisonment in

county jail and a $2,500 fine. Sitawisha appealed, and in her sole issue she asserts
that the trial court erred by failing to advise her about her right to obtain expert

assistance at the State’s expense.

      There is no constitutional requirement that, as part of the standard warnings

about the risks of refusing a court-appointed lawyer, a trial court must specifically

advise a criminal defendant about the right to request expert assistance at the

State’s expense. Accordingly, we affirm the judgment of conviction.

                                     Background

      Officer J. Taylor was conducting a traffic stop when a woman in a minivan

pulled up next to him. The minivan driver reported that someone driving a red car

had jumped a curb and nearly caused a vehicle collision before hitting a pole. She

also stated that the red car was parked nearby. After finishing the traffic stop,

Officer Taylor traveled to the parking lot identified by the minivan driver. The

only vehicle there was a red car with a shattered front windshield and two flat tires.

As Officer Taylor arrived, he was joined by Deputy J. Ogletree, who was

responding to a 911 call about the incident.

      Nomathemba Sitawisha was sitting in the driver’s seat when Officer Taylor

and Deputy Ogletree approached. Both law-enforcement officers testified that

when Sitawisha exited the vehicle they smelled a distinct odor of alcohol

emanating from her. They also testified that Sitawisha was belligerent and

unsteady on her feet. She refused to perform field sobriety tests.



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      Sitawisha was arrested. After she refused to consent to blood and breath

tests, the police conducted a blood draw pursuant to a warrant. The blood sample

was taken at least two hours after her arrest. Laboratory analysis of the sample

revealed that Sitawisha’s blood-alcohol concentration was 0.21 grams of alcohol

per 100 milliliters of blood, which is over the legal limit of 0.08 grams.

      Sitawisha was indigent, yet she waived her Sixth Amendment right to

appointed counsel and elected to proceed without the assistance of a lawyer. The

trial court conducted a hearing to ensure that her waiver was knowing and

voluntary. During the hearing, the following exchange occurred:

      Court:        . . . [Y]ou have a high school education with some
                    college and you understand the implications and the
                    dangers of being self-represented.

      Sitawisha: Yes.

      Court:        Okay. And you understand that this is a driving while
                    intoxicated case, a Class A, and the penalties could range
                    from being—if found guilty, could range from probation
                    to a dollar fine up to a year in jail and a $4,000 fine. Do
                    you understand?

      Sitawisha: Yes.

      Court:        Okay. And you understand that there’s technical rules of
                    evidence and procedures, which you’re going to be
                    obligated to comply to. Do you understand that?

      Sitawisha: Yes.

      Court:        Okay. And that you’re not given any special
                    consideration because of your lack of legal training or
                    legal experience. Do you understand that, too?

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      Sitawisha: Yes.

      Sitawisha also signed a waiver of counsel containing similar admonishments

in written form. During this initial hearing, the trial court did not advise her that

she could ask the court to appoint a state-funded expert if she made a suitable

preliminary showing that one was reasonably necessary to prepare an adequate

defense on a significant fact issue.

      During the trial, the forensic toxicologist who analyzed the blood sample

testified about his methods and procedures. On cross-examination, Sitawisha

attempted to suggest the possibility of fermentation in the sample and other

potential problems with the sample’s storage. The toxicologist responded that

scientific questions about sample storage would be more appropriately directed to

the expert reviewer, Dr. Fessessework Guale. Sitawisha continued to ask questions

outside of the toxicologist’s expertise, then eventually she asked the toxicologist

whether Dr. Guale would have more information that would be pertinent. The State

objected, and outside the presence of the jury, the court told Sitawisha, “If you

wanted to bring your own expert in, you could’ve done that.”

      The next day, Sitawisha called Dr. Guale as a witness. Sitawisha asked

several questions on direct examination about the sample preservation process and

its potential effect on blood-alcohol concentration. Dr. Guale responded that the

preservative used for blood samples was generally effective, fermentation usually



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occurred only in postmortem cases, and elapsed time in storage generally would

lower blood-alcohol concentration rather than raising it.

      The jury found Sitawisha guilty of driving while intoxicated. In a special

issue, the jury found that her blood-alcohol concentration was above 0.15 at the

time of analysis. This resulted in Sitawisha being convicted of a Class A

misdemeanor rather than a Class B misdemeanor. TEX. PENAL CODE § 49.04(d).

The jury assessed punishment at a fine of $2,500 and confinement for 105 days in

jail. Sitawisha appealed.

                                      Analysis

      In her sole issue, Sitawisha argues that she should have been advised about

her right to call an expert at the State’s expense. She asserts, and the State does not

contest, that because the special issue led to her being convicted of a greater

offense, her blood-alcohol concentration was an element of the offense that was

material to the case. She claims that she attempted to create a fact issue about the

blood sample, but she was unable to do so because she did not retain an expert and

she did not know she could obtain the funds for one. Sitawisha argues that this is a

structural issue that rendered her trial fundamentally unfair in violation of the

federal Constitution. She asserts that forgoing the right to funds for an expert

requires admonishments and a knowing waiver equivalent to the procedure

applicable when waiving the right to counsel.



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      The Sixth Amendment guarantees that in “all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his

defence.” U.S. CONST. amend. VI. The assistance of counsel is a fundamental right

that protects the defendant’s right to a fair trial and ensures that the prosecution’s

case is subjected to adversarial testing. See Faretta v. California, 422 U.S. 806,

832–833, 95 S. Ct. 2525, 2540 (1975); Gideon v. Wainwright, 372 U.S. 335, 340,

83 S. Ct. 792, 794 (1963); Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim.

App. 2008). An indigent defendant is entitled to appointed counsel unless she

knowingly, intelligently, and voluntarily waives the right to counsel. Faretta, 422

U.S. at 835, 95 S. Ct. at 2541.

      The Sixth Amendment also includes a reciprocal right to self-representation.

Id. at 821, 95 S. Ct. at 2534. If the defendant chooses to waive the right to counsel

and assert the right to self-representation, the trial judge must admonish the

defendant about “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.’” Id. at 835, 95 S. Ct. at 2541 (quoting Adams v. United States ex rel.

McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 242 (1942)). In these admonishments,

the trial judge must inform the defendant “that there are technical rules of evidence

and procedure, and he will not be granted any special consideration solely because




                                          6
he asserted his pro se rights.” Williams, 252 S.W.3d at 356 (quoting Johnson v.

State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988)).

      While a State need not “purchase for the indigent defendant all the

assistance that his wealthier counterpart might buy,” the defendant may be entitled

to the “basic tools of an adequate defense or appeal” when such assistance is

needed for him “to participate meaningfully in a judicial proceeding in which his

liberty is at stake.” Ake v. Oklahoma, 470 U.S. 68, 76–77, 105 S. Ct. 1087, 1092–

93 (1985). The United States Supreme Court therefore has held that due process

may require that the State provide access to expert assistance if the subject of the

expert testimony is “likely to be a significant factor” at trial. Id. at 74, 105 S. Ct. at

1091–92.

      However, “a defendant does not have an absolute right to a state-appointed

expert.” Ehrke v. State, 459 S.W.3d 606, 616 (Tex. Crim. App. 2015). Instead,

“there must be some preliminary showing of a significant issue of fact to require

the court to appoint an expert.” Id. at 617. Only after “the defendant makes a

sufficient threshold showing of the need for expert assistance on a particular issue”

is the defendant entitled to expert assistance. Ex parte Jimenez, 364 S.W.3d 866,

877 (Tex. Crim. App. 2012). This showing must be more than “undeveloped

assertions that the requested assistance would be beneficial.” Caldwell v.

Mississippi, 472 U.S. 320, 323 n.1, 105 S. Ct. 2633, 2637 n.1 (1985). Typically,



                                            7
when there is an insufficient showing to invoke the right to expert assistance under

Ake v. Oklahoma, 970 U.S. 68, 105 S. Ct. 1087 (1985), the defendant has “failed to

support his motion with affidavits or other evidence in support of his defensive

theory, an explanation as to what his defensive theory was and why expert

assistance would be helpful in establishing that theory, or a showing that there was

a reason to question” the State’s evidence. Rey v. State, 897 S.W.2d 333, 341 (Tex.

Crim. App. 1995).

      Sitawisha argues that specific advice about the right to expert assistance

should be required because it is a structural necessity for a fair trial. She compares

the right to expert assistance to the right to counsel and argues that this right must

be similarly explained and knowingly waived by the defendant.

      However, Sitawisha’s argument is not supported by either Ake or Faretta v.

California, 422 U.S. 806, 95 S. Ct. 2525 (1975), the two authorities upon which

she primarily relies. Faretta requires only that an accused be warned of the

“dangers and disadvantages of self-representation” so that the choice to forego the

assistance of counsel is knowing and voluntary. Faretta requires a general warning

about “technical rules of evidence and procedure” that will apply even despite the

absence of an attorney, but it does not require more detailed adomitions about

specific procedures, including the method for invoking the right to expert




                                          8
assistance at the State’s expense, or when that right might arise. See 422 U.S. at

835, 95 S. Ct. at 2541.

      Ake allows for the possibility of expert assistance when necessary. 470 U.S.

at 76–77, 105 S. Ct. at 1092–93. However, it is incumbent on the defendant to

make a preliminary showing that expert assistance is necessary to ensure the

appropriate adversarial process for a significant issue of fact. See Ehrke, 49 S.W.3d

at 617. The Ake “right” arises only upon a valid request for assistance, and it

similarly imposes no requirement that a trial court advise a self-represented

defendant about the possibility of assistance. See id.; Ake, 470 U.S. at 82–83, 105

S. Ct. at 1096 (noting that “the risk of error from denial of [expert] assistance, as

well as its probative value, is most predictably at its height” when the issue is

“seriously in question”).

      Sitawisha relies upon a decision of the Supreme Court of Connecticut for the

proposition that an indigent defendant who has waived the right to counsel is

constitutionally entitled to necessary expert services at public expense. In

Connecticut v. Wang, 92 A.3d 220 (Conn. 2014), the Court held that a pro se

defendant could access ancillary tools of defense such as expert assistance through

standby counsel without forgoing his right to self-representation.* Id. at 254–56.


*
      Wang is also factually distinguishable from this case because the defendant
      explicitly requested that the trial court order expert funding. Wang, 92 A.3d
      at 224–28. The defendant also provided extensive documentation of an

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However, that case does not purport to impose any requirement that a court

affirmatively advise the defendant as to her ability to request expert assistance.

      The standard admonishments required in connection with a defendant’s

waiver of the right to counsel provide general warnings about the dangers of self-

representation. See Williams, 252 S.W.3d at 356. These include the admonishment

that “there are technical rules of evidence and procedure,” and that the pro se

defendant “will not be granted any special consideration solely because he asserted

his pro se rights.” Id. The risk that a self-represented defendant will fail to take

advantage of her right to expert assistance by failing to make a timely request

accompanied by the necessary preliminary showing is thus one of the dangers of

self-representation. See Faretta, 422 U.S at 835, 95 S. Ct. at 2541.

      Sitawisha was informed of this general risk yet she still waived her right to

counsel, and she does not contest that knowing and voluntary waiver on appeal. To

require the trial court to advise Sitawisha separately about her potential ability to

request expert assistance would be to insist upon a “special consideration” for her

simply because she asserted her right to self-representation. Williams, 252 S.W.3d

at 356. We conclude that Sitawisha was adequately warned she would receive no

such special consideration, and thus there was no structural error or fundamental


      alleged history of mental illness and noted the possibility of raising a
      defense based on mental disease or defect. Id. at 229–30. Sitawisha made no
      similar preliminary showing or request in this case.

                                          10
unfairness that affected her substantial rights in this case. See TEX. R. APP. P. 44.2;

Aguirre-Mata v. State, 992 S.W.2d 495, 498–99 (Tex. Crim. App. 1999).

      Sitawisha did not move to appoint an expert at any point in her trial. Instead,

she called Dr. Guale as a witness in the apparent hope that the doctor would

validate her concerns about the integrity of the blood sample. She did not make any

showing to the court to demonstrate her need for an expert or to show that there

was reason to question the State’s evidence. Cf. Rey, 897 S.W.2d at 341 (stating

general requirements of sufficient showing for Ake). As such, we need not reach

the question of whether Sitawisha would have been entitled to expert assistance

had she requested it, because she did not make a timely request or motion that

would preserve error. See TEX. R. APP. P. 33.1; Ehrke, 459 S.W.3d at 617.

      We conclude that the trial court was not required to advise Sitawisha

separately about the potential availability of expert assistance at the State’s

expense. See Faretta, 422 U.S. at 835, 95 S. Ct. at 2541; Williams, 252 S.W.3d at

356. Because Sitawisha did not make any preliminary showing of a significant

issue of fact or motion for the appointment of an expert at the trial level, she has

not preserved any further error for this appeal. See TEX. R. APP. P. 33.1; Ehrke, 459

S.W.3d at 617. We overrule Sitawisha’s sole issue.




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                                    Conclusion

      We affirm the judgment of the trial court.




                                             Michael Massengale
                                             Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




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