Mason v. State
2011 Tex. App. LEXIS 3548
Tex. App.2011Background
- Mason convicted of driving while intoxicated, enhanced by two prior DWI convictions, and sentenced to 25 years in prison.
- Appeal contends denial of equal protection, due process, and due course of law due to ex parte motion for court-appointed expert; argues ineffective assistance of counsel absent expert.
- Fact pattern includes a van hitting a stop sign and mailbox; occupants appeared intoxicated; van could not leave due to flat tire; witness contacted 911.
- Police recovered nine one-quart beer bottles; Mason admitted consuming two and a half to three quarts; officers described strong odor and slurred speech.
- Breath tests at the jail showed BAC around 0.095–0.097; a hospital blood test five hours later showed BAC 0.04; jury heard per se and impairment theories of intoxication.
- Trial court denied the request for a court-appointed expert; Mason did not introduce an expert at trial; appellate court affirmed denial as not an abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of court-appointed expert violated rights | Mason seeks expert to test extrapolation of BAC and defense testing. | No sufficient preliminary showing; narrow ground not established. | No abuse of discretion; denial affirmed. |
| Constructive denial of effective assistance of counsel | Lack of expert constitutes ineffective assistance. | No need to decide once expert not required. | Question unnecessary to resolve; affirmed on other grounds. |
Key Cases Cited
- Ake v. Oklahoma, 470 U.S. 68 (1985) (requires showing that expert aid is necessary for a fair trial)
- Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995) (preliminary showing for expert appointment; defense theory must be supported with facts)
- Griffith v. State, 983 S.W.2d 282 (Tex. Crim. App. 1998) (standard for appointment of expert rebuttal of state opinions)
- Deason v. State, 84 S.W.3d 793 (Tex. App.—Houston [1st Dist.] 2002) (abuse of discretion standard for failure to appoint expert)
- Jackson v. State, 992 S.W.2d 469 (Tex. Crim. App. 1999) (no constitutional error where court excludes evidence under Rule 403)
- Wiley v. State, 74 S.W.3d 399 (Tex. Crim. App. 2002) (defendant not deprived of defense where trial court excludes evidence)
- Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001) (extrapolation limitations and uses in blood-alcohol analysis)
- Kirsch v. State, 306 S.W.3d 738 (Tex. Crim. App. 2010) (discusses retrograde extrapolation and its limitations)