Taylor v. State

• Decision Date: 09 October 1996
• Docket Number: No. 0048-95,0048-95
• Citation: 939 S.W.2d 148
• Parties: Stacey Glenn TAYLOR, Appellant, v. The STATE of Texas, Appellee. . En Banc
• Court: Texas Court of Criminal Appeals

Page 148

939 S.W.2d 148

Stacey Glenn TAYLOR, Appellant, v. The STATE of Texas, Appellee.

No. 0048-95.

Court of Criminal Appeals of Texas.

En Banc.

Oct. 9, 1996.

Janet Morrow, Houston, for appellant.

Dan McCrory, Asst. District Attorney, Houston, Matthew Paul, State's Atty., Austin, for State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Judge.

A jury found appellant, Stacey Glenn Taylor, guilty of aggravated sexual assault. See Tex.Penal Code § 22.021. After the court determined the allegations in the enhancement paragraph to be true, it assessed punishment at life imprisonment. The Fourteenth Court of Appeals, in an unpublished opinion, affirmed. Taylor v. State, No. A14-92-00781-CR, 1994 WL 669173 (Tex.App.--Houston [14th Dist.] 1994). We granted appellant's petition for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(3), to determine: (a) whether the court of appeals erred in holding that appellant's due process rights were not violated when the trial court refused to appoint a defense expert regarding deoxyribonucleic acid (DNA) analysis, and (b) whether the court of appeals erred in holding that appellant failed to preserve error regarding the trial court's voir dire time-limitation. We will vacate the judgment of the court of appeals on both grounds, and remand the cause to that court for further proceedings consistent with this opinion.

I.

During pretrial proceedings, appellant made several motions requesting the trial court to authorize the expenditure of county funds to provide expert assistance for his defense. Appellant's first motion, filed in April of 1991, requested $2000 for investigative fees and expert consultation. In part, appellant's justification for this expenditure was apparently an assumption that the State would conduct scientific testing on the forensic evidence found at the scene of the sexual assault (e.g., semen found on the complainant's clothes). However, at the time of this first motion, the State had not yet performed any scientific testing on the forensic evidence, relying on the victim's identification of appellant to sustain the prosecution. The trial court partially overruled this request, authorizing only $600 for the "[p]ayment of an Investigator and other reasonable expenses incurred incident thereto."

In August of 1991, appellant filed a second motion entitled "Defendant's Motion for DNA Testing and Authorization for Funding." At the time of this second motion, the State had not yet performed scientific testing on the semen samples taken from the scene of the sexual assault. Appellant requested that DNA testing be performed on the "rape kit" and clothing samples, arguing that this was "the best evidence which can exonerate him of this crime." In this motion, appellant named Holly Hammond of the Institute for Molecular Genetics, Baylor College of Medicine, as an expert who could perform the DNA testing. The trial court authorized the expenditure of $750 to perform the DNA testing and ordered that the Institute "shall submit a written summary and conclusions of the test results to this Court."

The testing was completed and written summaries were distributed to the trial court, to appellant, and to the State. Hammond's conclusion was that, for at least one of the samples tested, she could not exclude appellant as a contributor. Stated statistically, her results indicated that if a person was randomly chosen from the population, there would be one chance in 12 million that the person would have genetic characteristics like that of the tested samples found on the victim's clothing. And importantly, appellant was one of those persons. After receiving this information, the State designated Hammond as its expert.

Appellant filed a third motion on June 5, 1992, requesting $5000 to obtain his own DNA expert. Appellant, after spending some time attempting to locate an available expert, named Dr. Moses Shamfield as a procurable selection. It is evident from the both the written motion and the hearing on that motion that the purpose of appellant's request was two-fold: First, appellant wanted a DNA expert to help prepare an effective defense, particularly an effective cross-examination of Hammond, the State's expert. Second, appellant requested an expert who might, after reviewing the evidence, testify on his behalf. ¹ The trial court denied the motion.

Appellant made a final request for a DNA expert on June 17, 1992. The written motion was essentially identical to the June 5 motion, with one exception: In the final motion, appellant provided a scientific rationale for the DNA expert by enumerating several areas in which an expert might provide assistance in challenging the State's DNA results. The trial court again denied the request. Appellant was then tried and convicted of aggravated sexual assault.

In the court of appeals, appellant argued that the trial court violated the Fourteenth Amendment when it denied his request for expert assistance. See Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); Rey v. State 897 S.W.2d 333 (Tex.Crim.App.1995); De Freece v. State 848 S.W.2d 150 (Tex.Crim.App.1993). The State's response was three-fold. First, the State contended that appellant did obtain expert assistance when the trial court authorized Hammond to perform DNA testing at the county's expense. Due process, the State argued, did not require the provision of a second expert if the first provided only inculpatory assistance. The State's second response was that appellant failed to demonstrate a specific need for the requested expert assistance. ² The State's argument follows:

The thrust of [defense] counsel's argument concerned his desire to have an expert educate him regarding DNA evidence so that he could rebut the State's case on cross-examination. Defense counsel's expressed need to be tutored in the field of DNA falls short of establishing a specific need for expert assistance.

The State's third argument was that any error was harmless because the DNA case formed only a part of the State's evidence against appellant. The State pointed to the complainant's testimony in which she stated that she saw appellant's face while he sexually assaulted her, and that she had seen him on six or seven occasions prior to the offense. Therefore, the State claimed, the DNA evidence was merely cumulative of the victim's testimony identifying appellant as her attacker.

The court of appeals agreed with the State's first argument:

The record indicates that the trial court granted appellant's motion for DNA testing, and specifically granted appellant's choice of expert to conduct the testing. Moreover, appellant had the time to prepare and had meaningful access to his expert and the results of the DNA testing. The fact that appellant was unhappy with the opinion of his first expert is insufficient reason for this Court to find an abuse of discretion. Slip Op. at 4.

The court of appeals did not reach the State's other arguments.

Appellant now argues to this Court, inter alia, that the court of appeals mischaracterized the nature of Hammond's association with the defense. Appellant argues that an honest review of the record unequivocally establishes that Hammond was never, at any time, a defense expert. Hence, the central premise in the court of appeals holding is faulty: Appellant was not asking for a second expert because Hammond was never appellant's first expert.

In response, the State again characterizes Hammond as appellant's expert. Thus, the State argues, the trial court committed no error because appellant had no right to a second expert when the first failed to support an exculpatory theory of the defense.

The United States Supreme Court has construed the Fourteenth Amendment to require the State, upon request of an indigent defendant, to provide the "basic tools of an adequate defense ... when those tools are available for a price to other prisoners." Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971); see also Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53 (1985). The State is not required, however, to furnish indigent defendants with all the assistance their wealthier counterparts could purchase. Fundamental fairness requires only that the State provide assistance if the denial of that assistance would frustrate a fair proceeding under our adversarial system. Ake, supra at 77, 105 S.Ct. at 1093.

If a defendant requests an expert who can buttress a viable defense, due process is implicated when the trial court refuses the request. The essential inquiry regarding whether a defendant is constitutionally entitled to an expert is whether the expert can provide assistance which is "likely to be a significant factor" at trial. Rey v. State, 897 S.W.2d at 339 (quoting Ake v. Oklahoma ). ³

In addition, we have also extended--at least implicitly--the due process protections recognized in Ake beyond the capital context. McBride v. State, 838 S.W.2d 248, 252 (Tex.Crim.App.1992). ⁴ Hence, the tenets of Ake--as delineated by this Court in De Freece and Rey, supra--could, in principle, require the appointment of a DNA expert to assist the defense of appellant's case. If appellant demonstrated the complexity of the issues involved and the importance of the requested expert testimony visa-vis a viable defense, then he would have been entitled to a DNA expert. Rey at 338.

However, the court of appeals did not reach that question. Rather, the court of appeals chose to characterize Hammond as appellant's expert, thereby precluding the appointment of a second defense expert. The court of appeals was correct when it recognized that due process did not require a defendant to be furnished with a testifying expert who would unequivocally support an exculpatory theory of the defense. Thus, a defendant is not entitled to "shop" for experts--at the State's...