Davis v. State

• Decision Date: 27 July 1995
• Docket Number: No. 06-94-00229-CR,06-94-00229-CR
• Citation: 905 S.W.2d 655
• Parties: John DAVIS, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 655

905 S.W.2d 655

John DAVIS, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 06-94-00229-CR.

Court of Appeals of Texas Texarkana.

July 27, 1995.

Discretionary Review Refused Nov. 8, 1995.

Jeff Fletcher, Texarkana, Earl R. Waddell, III, Fort Worth, for appellant.

Bobby Lockhart, Dist. Atty., Texarkana, Michael Shepherd, Asst. Dist. Atty., Texarkana, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

BLEIL, Justice.

John Davis, Jr. appeals his conviction for possession of a controlled substance, cocaine, in an amount less than twenty-eight grams. On appeal, Davis complains of the denial of his motion for a court-appointed expert witness; the admission of evidence allegedly seized in violation of his constitutional rights; error in the charge to the jury; and the punishment assessed by the jury. We find no reversible error and affirm.

At approximately 9:00 p.m. on the night of January 22, 1993, officers McCarver and Gladden of the Texarkana Police Department were patrolling in an unmarked car in a residential area of Texarkana, Texas. McCarver noticed two men standing in the front yard of a residence and recognized Davis as one of the men. The officers drove past the residence, turned the next corner, and drove around the block to return to the residence. McCarver testified that, as the patrol car pulled up to the residence, Davis waved and approached the car. McCarver rolled down his window. Davis immediately recognized McCarver and turned to walk toward the residence. McCarver ordered Davis to stop, but Davis did not obey the order.

Gladden and McCarver got out of the patrol car and followed Davis to the front porch of the residence. Davis reached the front door of the residence, and McCarver again ordered him to stop. Davis turned and spoke to McCarver. As Davis spoke, McCarver saw a clear cellophane baggie in his mouth, but could not see the contents of the baggie. McCarver grabbed Davis in a "bear hug." As the struggle continued, Sergeant McElhaney, a backup officer, arrived and sprayed Davis with mace.

McCarver had pinned Davis's arms to his sides. Davis lifted one hand slightly, spit the baggie into his left hand, and threw it toward the front door. Gladden seized the baggie. After Davis was subdued and handcuffed, McCarver inspected the baggie and observed that it contained a white rock-like substance, identified as 2.51 grams of cocaine in a subsequent chemical analysis.

A jury convicted Davis of possession of a controlled substance and sentenced him to ninety-nine years' confinement.

COURT-APPOINTED EXPERT

Davis complains of the trial court's denial of his motion for a court-appointed expert to analyze the outside surface of the baggie for traces of saliva. See TEX.CODE CRIM.PROC.ANN. art. 26.05(a) (Vernon 1989) (providing for payment for expert defense witnesses). Fundamental fairness entitles indigent defendants to an adequate opportunity to present their claims fairly within the adversarial system. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Implementation of this principle requires that a defendant be provided with the basic tools of an adequate defense or appeal. Id. In deciding whether, and under what conditions, an expert's participation is important enough to require the state to provide an indigent defendant with access to competent expert assistance, three factors are relevant considerations: (1) the private interest that will be affected by the action of the state, (2) the governmental interest that will be affected if the safeguard is to be provided, and (3) the probable value of the additional or substitute procedural safeguards that are sought and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. Id. at 77, 105 S.Ct. at 1093; Rey v. State, 897 S.W.2d 333, 337 (Tex.Crim.App.1995).

The necessity for the appointment depends on whether the defendant has made a sufficient threshold showing of need for the expertise in his particular case. Rey, 897 S.W.2d at 339. This includes showing both that there exists a reasonable probability that an expert would be of assistance and that denial of expert assistance would result in a fundamentally unfair trial. Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987). If a defendant makes a sufficient showing that he is entitled to expert assistance in the evaluation, preparation, and presentation of his defense, the trial court's denial of the motion for appointment of an expert amounts to structural error affecting the underpinnings of the entire trial, which cannot be evaluated for harm and calls for automatic reversal. Rey, 897 S.W.2d at 345-46.

The first factor articulated in Ake favors Davis's position. The private interest in the accuracy of a criminal proceeding is compelling and weighs heavily in the analysis. Ake, 470 U.S. at 78, 105 S.Ct. at 1093.

As for the state or governmental interest, the Supreme Court has interpreted this narrowly and as a matter of economy only. Id. at 79, 105 S.Ct. at 1094. The Supreme Court gave this second factor little weight in light of the state's interest in obtaining an accurate result in a criminal proceeding. Id. at 79, 105 S.Ct. at 1094.

It is the third factor to which the Supreme Court devoted its analysis and to which Davis devotes his argument. This third factor requires a preliminary showing by the defendant that the issue for which he seeks expert assistance is likely to be a significant factor at trial. See id. at 83, 105 S.Ct. at 1096; Rey, 897 S.W.2d at 339. The government is not required to automatically provide indigent defendants with expert assistance upon demand. Yohey v. Collins, 985 F.2d 222, 227 (5th Cir.1993). In those cases where an insufficient showing has been made, the defendant typically 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 is reason to question the state's expert and proof. Rey, 897 S.W.2d at 341. Offering little more than undeveloped assertions that the requested assistance would be beneficial will not suffice. Id. at 339.

Davis wanted a forensic pathology laboratory in Dallas to test the baggie to determine if it had been in his mouth. The State maintained that the requested testing would not affect any ultimate issue in the case because it is the possession of the contraband, which McCarver saw Davis throw onto the porch, that is the determinative issue.

There is no evidence, in the form of affidavits or sworn testimony, about the capabilities of the testing facility or the potential results that could be obtained from analyzing the baggie to establish that the requested appointment of an expert could support Davis's defensive theory. Defense counsel is obligated to inform himself about the specific scientific area in question and to provide the court with as much information as possible concerning the usefulness of the requested expert to the defense's case. Moore, 809 F.2d at 712. Davis has not made a sufficient showing that the requested expert assistance was essential to the development of his defensive theory. ¹ The trial court did not err in denying the motion for appointment of an expert witness.

MOTION TO SUPPRESS

Davis contends that the trial court erred in overruling his motion to suppress and in admitting evidence seized in violation of his rights under the federal and state constitutions and the Code of Criminal Procedure. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; TEX.CODE CRIM.PROC.ANN. art. 1.06 (Vernon 1977), art. 38.23 (Vernon Supp.1995). The trial court denied the motion to suppress after finding that there were material fact issues that should be submitted to the jury. Davis has raised his complaints under both the federal and state constitutions and, therefore, this court analyzes his complaints separately. See Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App.1991). Nonetheless, Davis cites no authority that would require this court to take a markedly different approach in analyzing his complaints under the Texas Constitution than that required by the Fourth Amendment.

At a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and of the weight to be given their testimony. Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991). The appellate court does not engage in its own factual review, but considers only whether the trial court improperly applied the law to the facts. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). Absent an abuse of discretion by the trial court, the appellate court will not disturb the trial court's findings. Cantu, 817 S.W.2d at 77.

Davis has divided his argument into three parts: (1) the lack of reasonable suspicion to support a temporary detention; (2) the warrantless entry upon his curtilage; and (3) his warrantless arrest. Each of his arguments will be addressed in turn.

A. Temporary Detention

Davis argues that the officers lacked the reasonable suspicion necessary to support a temporary detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He asserts that he attempted to swallow the baggie as a direct result of the officers' unlawful conduct. In addressing this issue, we first determine when the detention began and then determine whether the officers possessed a reasonable suspicion of criminal activity. See White v. State, 852 S.W.2d 53, 55 (Tex.App.--Texarkana 1993, no pet.).

Davis contends that his detention began when McCarver ordered him to stop. For purposes of the Fourth Amendment, a person is seized if he submits to a show of authority or has been restrained by means of physical force. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113...