Nomathemba Y. Sitawisha v. State
01-14-00848-CR
| Tex. App. | Jul 31, 2015Background
- Defendant Nomathemba Y. Sitawisha was tried pro se for driving while intoxicated with an alleged blood alcohol concentration (BAC) of .21 and convicted on October 1, 2014; jury found BAC > .15 (Class A misdemeanor).
- She waived counsel after a Faretta colloquy but was not advised about the right to request public funds for a defense expert under Ake v. Oklahoma.
- The State introduced blood-draw testimony and a toxicologist’s lab report and testimony as the sole evidence on the special issue (BAC > .15).
- Sitawisha sought to question the lab manager and attempted cross-examination of the State’s witnesses without expert assistance; the trial judge declined to advise her of any right to funded expert assistance.
- Appellant argues the trial court’s failure to admonish her about and/or provide Ake funds for a defense expert was structural constitutional error that deprived her of a fair trial and requires reversal.
Issues
| Issue | Plaintiff's Argument (Sitawisha) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the trial court erred by not informing a pro se indigent defendant of the right to request public funds for an expert (Ake) | A pro se indigent defendant must be advised of Ake rights and given opportunity to request funds; absence of advice means waiver was not knowing | The record shows defendant waived counsel; no separate admonishment about expert funds was required | Appellant argues error; brief contends failure to admonish about Ake rights violated due process (requesting reversal) |
| Whether expert assistance was "reasonably necessary" because BAC > .15 was an element | BAC > .15 is an element that increases offense level; expert help was necessary to challenge testing, storage, and analysis | State relied on its expert and evidence; defendant made no threshold showing or request for appointed expert during Faretta | Appellant contends expert assistance was reasonably necessary because BAC was dispositive element |
| Whether failure to provide Ake assistance (or admonish) is a structural error requiring reversal | Denial of access to basic tools of defense is of constitutional dimension like right to counsel; error is not harmless | State would argue any error was harmless or not shown to have contributed to verdict | Appellant contends the error is structural and not harmless; asks for reversal |
| Whether waiver of counsel equals waiver of right to expert assistance | Waiver of counsel does not automatically waive Ake rights; court must ensure waiver of expert funds is knowing | State may argue waiver encompasses proceeding without retained resources or that defendant could have sought funds | Appellant argues Faretta colloquy should have included Ake advisals so any waiver would be knowing |
Key Cases Cited
- Ake v. Oklahoma, 470 U.S. 68 (1985) (due process requires access to reasonably necessary expert assistance for indigent defendant)
- Faretta v. California, 422 U.S. 806 (1975) (defendant has right to self-representation; court must admonish about dangers)
- United States v. Agurs, 427 U.S. 97 (1976) (omitted evidence is material if it creates a reasonable doubt that did not otherwise exist)
- Tuggle v. Netherland, 516 U.S. 10 (1995) (per curiam) (Ake relief required where state failed to furnish psychiatric expert)
- Patterson v. Illinois, 487 U.S. 285 (1988) (limits and considerations for waivers when defendant elects self-representation)
- Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002) (denial of access to defense theory/expert assistance can be constitutionally significant)
- Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995) (failure to provide certain expert assistance can constitute structural error)