Adame v. State
| Decision Date | 26 April 2023 |
| Docket Number | 04-21-00260-CR |
| Parties | Norberto ADAME, Appellant v. The STATE of Texas, Appellee |
| Court | Court of Appeals of Texas |
DO NOT PUBLISH
From the 111th Judicial District Court, Webb County, Texas Trial Court No. 2019CRB000094D2 Honorable Monica Z. Notzon, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
A jury convicted Norberto Adame of murder and aggravated assault with a deadly weapon. The jury assessed punishment at twenty years and ten years confinement, and the trial court ordered the sentences to run concurrently. On appeal, Adame asserts four issues: (1) the trial court violated Adame's due process by denying his ex parte motion for funds to retain a medical expert; (2) the trial court erred in limiting his medical expert's testimony on the insanity defense and as a result, the jury was never instructed on the insanity defense; (3) ineffective assistance of counsel; and (4) Adame was denied a fair trial after a juror withheld information at voir dire. We affirm.
Adame was with friends at a night club in Laredo, Texas. Around 2 a.m. on November 2, 2018, a fight broke out in the club's parking lot. During the fight, Adame was beaten by a group of men. One of Adame's alleged assailants was the deceased Jose Jesus Martinez. As police arrived on the scene, the fight broke up and participants fled in vehicles. Police saw a maroon Dodge Charger and a white Lincoln MKZ leaving the scene.
Fifteen minutes later, a 911 dispatcher received a call reporting a shooting. Police arrived to find a black Chrysler 300 littered with twenty-four bullet holes stretching from the front of the vehicle to the rear. Covered in blood, Martinez took his last breath in the presence of a responding officer. The driver of the Chrysler 300, Lesther Julian Castro, was also shot in the wrist and was found bleeding with his hand dangling from his arm.
Police collected surveillance video from local businesses, including one from a Stripes corner store near the location of the shooting. The Stripes video captured all three of the vehicles- the white MKZ, maroon Charger, and black Chrysler 300-seconds before the shooting. The video shows the black Chrysler 300 hastily turning right at a red light; seconds later, the white MKZ and maroon Charger stop side-by-side at the light. A person in the maroon Charger is seen handing an AR-15 long rifle through the window to a person in the white MKZ. The two cars then turn right, and less than ten seconds later, at least twenty-eight shots are heard off-camera.
Castro, the driver of the black Chrysler 300, testified at trial. According to Castro, he went to the night club around midnight with two female friends and stayed until around 2 a.m. After walking his friends to their cars, he noticed a fight had broken out after he left and recognized one of the participants as Martinez. Castro drove to the front of the club to check on Martinez, and when the police arrived, Castro offered Martinez a ride. According to Castro, the two decided to attend an after party. When they reached an intersection, a maroon Charger pulled up next to them.
Martinez warned Castro that the occupants of the maroon Charger were "the guys" from the fight. The driver of the maroon Charger lowered the windows and began "talking smack" to Castro. When the light turned green, Castro continued driving. The maroon Charger ended up in front of Castro, and Castro passed the car after it slowed down.
Moments later, Castro noticed the car was smoking. While he could not hear gunfire over the loud music in his car, he realized he had been shot. He took a panicked right turn and pulled to the side of the road to call 911. From the front of the car, Castro called for Martinez, who responded in "gurgling" noises "like whenever you have water in your mouth."
At trial, the State called expert witnesses to corroborate Castro's testimony. Chrystina Vachon, a forensic scientist out of Bexar County, determined that there was gunshot residue present in the Charger but not the Chrysler 300. Ballistic analyst Sean Daniel matched the bullet casings and slugs to the rifle. Former Webb County Medical Examiner Dr. Corrine Stern confirmed that Martinez died from the gunshot wounds he sustained. She also found blood in the chest cavity, explaining Martinez's aspiration and the resulting "gurgling" noise.
During his case-in-chief, Adame took the stand in his own defense. He testified that prior to the day of the incident, Martinez and others had threatened him on Facebook and Snapchat. According to his testimony, on the night of the incident, Martinez stared at him in the club, which he took as a threat. As Adame exited the club, he noticed "a lot of people" coming towards him, and the group of men eventually began hitting him. Adame recalled little of what happened between the fight and being in the backseat of the car. He recalled seeing weapons in Martinez's car, which made him feel threatened. He testified that he fired the weapon that appeared between his legs, but he only "wanted to scare them." Adame did not remember much of what happened after the shooting.
Adame also called an expert witness, Dr. Javier Cantu, on his behalf. Cantu testified that he had reviewed Adame's medical records, but "significant deficits" in the emergency room doctors' evaluation made it impossible to diagnose Adame for traumatic brain injury. Specifically, Cantu identified a plethora of exams used to identify or diagnose traumatic brain injury and stated, based on his review of Adame's medical records, that they were not performed. Adame also sought to have Cantu testify "why" the tests were not performed; however, the trial court excluded that testimony as irrelevant and speculative.
The jury found Adame guilty on both counts, and assessed punishment at twenty years and ten years, which the trial court ordered to run concurrently. This appeal followed.
In his first issue, Adame contends the trial court erred by denying his motion to approve expenses for a testifying expert witness, violating his right to due process.
We review the trial court's ruling for abuse of discretion. Griffith v. State, 983 S.W.2d 282, 287 (Tex. Crim. App. 1998); see also Cameron v. State, 630 S.W.3d 579, 597 (Tex. App.-San Antonio 2021, no pet.). The State must provide a defendant with the "basic tools" to present a defense, but it is not required to purchase for an indigent defendant all the assistance that their "wealthier counterparts might buy." Rey v. State, 897 S.W.2d 333, 337 (Tex. Crim. App. 1995) (citing Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). In determining whether an expert witness should be considered a basic part of a defense in a given case and should therefore be appointed and approved for expenses, we examine three factors: (1) the private interest that will be affected by the action of the State; (2) the State's interest that will be affected if the safeguard is provided; and (3) the probable value of the additional procedural safeguards that are sought and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. Id. (citing Ake, 470 U.S. at 77).
With respect to the private interest, a defendant's interest in the accuracy of a proceeding where their life or liberty is at stake weighs heavily in the analysis. Id. The second factor addresses the State's concern for judicial economy, but it is not as substantial as the State's interest in an accurate outcome at trial. Id.
The third factor, which is the weightiest, places the burden on the defendant to show how the expert at issue would assist in his defense before being entitled to the appointment of the expert. Griffith, 983 S.W.2d at 286-87. In order to make this showing, the defendant must provide the trial court with information about what evidence will be presented against the defendant and how the expert will assist the defendant in rebutting such evidence. Rey, 897 S.W.2d at 341; see Cameron, 630 S.W.3d at 597. The defendant must offer more than vague, conclusory, or undeveloped assertions that the requested assistance would be beneficial. Williams v. State, 958 S.W.2d 186, 192 (Tex. Crim. App. 1997); see Cameron, 630 S.W.3d at 597. The central question is whether the defendant can show the failure to appoint the requested expert would create a high risk of an incorrect verdict. Busby v. State, 990 S.W.2d 263, 271 (Tex. Crim. App. 1999). In general, courts have concluded a defendant did not make such a showing if the defendant failed to (1) support their motion with affidavits or other evidence in support of their defensive theory, (2) explain the theory or why expert assistance would be helpful in establishing it, or (3) show there was a reason to question the State's expert and proof. Rey, 897 S.W.2d at 341; Cameron, 630 S.W.3d at 597.
We find the third factor-the probable value of the expert assistance sought and the risk of error in the proceeding if such assistance is not offered-dispositive here. Regarding the substance of the Ake motion, Adame provided the following explanation for why expert assistance would be helpful:
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