NO. 07-09-0259-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 7, 2010

                                       ______________________________

BETTY A. RIOS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE COUNTY COURT AT LAW NO. ONE OF LUBBOCK COUNTY;

NO. 2007-446,768; HONORABLE RUSTY LADD, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER OF ABATEMENT AND REMAND

          Appellant, Betty A. Rios, filed a notice of appeal from her conviction for driving while intoxicated and sentence of three days incarceration and $2,000 fine. The sentence was suspended and appellant was placed on community supervision for a period of 12 months. The appellate court clerk received and filed the trial court clerk’s record on September 22, 2009. The trial court reporter’s record was received and filed on October 27, 2009. Thus, appellant’s brief was due on or before November 26, 2009.

          On December 8, 2009, this Court notified appellant that her brief was past due and that, if her brief was not filed by December 18, 2009, her appeal would be abated and remanded to the trial court. As of the date of this order, appellant has failed to file her brief.

          Accordingly, we now abate this appeal and remand the cause to the trial court. See Tex. R. App. P. 38.8(b)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, whether appellant is indigent and, if not indigent, whether counsel for appellant has abandoned the appeal; (3) if appellant desires to prosecute this appeal, whether appellant’s present counsel should be replaced; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant’s appeal if appellant does not desire to prosecute this appeal or, if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued. If the trial court determines that the present attorney for appellant should be replaced, the court should cause the Clerk of this Court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or newly-retained attorney.

          The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law, and recommendations and cause them to be included in a supplemental clerk’s record; (3) cause the hearing proceedings to be transcribed and included in a supplemental reporter’s record; (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk’s record or the supplemental reporter’s record; and (5) cause the records of the proceedings to be sent to this Court. See Tex. R. App. P. 38.8(b)(3). In the absence of a request for extension of time from the trial court, the supplemental clerk’s record, supplemental reporter’s record, and any additional proceeding records, including any orders, findings, conclusions, and recommendations, are to be sent so as to be received by the Clerk of this Court not later than February 8, 2010.  

 

                                                                           Per Curiam

Do not publish.

recliner with a glass of tea. Sarah left her house about 9:00 p.m. to visit her parents, who lived across the street. While she was there, Josh Price showed up and the pair started back to Sarah's house. As they did so, they met William and his girlfriend, Jamie Balk, and the group continued toward Sarah's house. As they approached the house, appellant closed and locked the front door and Sarah heard a thump on the floor.

Sarah also testified appellant had called her the day before the occurrence and said he wanted to shoot Pettitt but he did not know why. The night before the incident, she said, appellant came over to her house and showed Pettitt a gun which Pettitt looked at and returned to appellant. She also said that at that time, the two shook hands and agreed to be friends.

William testified that on March 13, Pettitt had returned home from work tired, sat down with a glass of iced tea, and was watching television. William left to pick up his girlfriend and when they returned, appellant and Pettitt were sitting down. Pettitt was watching television and appellant was talking to him. William and his girlfriend went over to Sarah's parent's house to get Josh. The pair met Sarah and Josh and they returned to Sarah's house. As they got to the front door, "it shut and locked." He heard someone saying "Al, don't. Al, stop." William and Jamie went to the back door and as they entered, they saw Pettitt lying on the floor bleeding. William also testified that appellant was at a party at Sarah's house about a week or so before the stabbing incident, and Pettitt and appellant threatened to go outside and throw knives at each other.

Meador testified that about 1:30 a.m. on March 15, 2002, appellant called his residence and wanted the sheriff to meet with him at an Alsup's store in Matador. When the sheriff arrived at the store, appellant told the sheriff he wanted to talk. The sheriff again recited Miranda rights to appellant. Appellant then told Meador that he had "killed Al." He said he had gone over to Sarah's house to deliver the ribbons. When he arrived, Pettitt was there, seated in a recliner chair, and told appellant to place the ribbons on a table adjacent to the chair. Appellant then took out his knife and showed it to Pettitt. Pettitt handed the knife back to him and he stabbed Pettitt. He then took Pettitt's knife and cut himself. Appellant did not mention to Meador any aggression on the part of Pettitt that might have provoked his attack.

Meador then called Foster, who took a written statement from appellant that was received into evidence. The written statement was much the same as appellant's oral statement to the sheriff.

Factual Sufficiency

In the recent case of Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), the court had occasion to explicate the standard by which we review the factual sufficiency of the jury's rejection of a self-defense assertion. In explication of that standard, the court explained:

. . . the reviewing court reviews all the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence.

Id. at 595.

In the light of that instruction, we have carefully examined all the evidence in this case and have concluded that it is sufficient to sustain the jury's verdict. This is particularly true in view of appellant's various inconsistent and incriminating statements, and all of the surrounding circumstances and testimony we have listed above. Accordingly, appellant's first issue must be, and is hereby, overruled.

As we have noted, in his remaining four issues, appellant contends that the refusal of the trial court to appoint him an expert on confessions deprived him of various constitutional and statutory rights, as well as the effective assistance of counsel. In reviewing that denial, we must determine if the trial court abused its discretion in refusing appellant's request. Griffith v. State, 983 S.W.2d 282, 287 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 826, 120 S.Ct. 77, 145 L.Ed.2d 65 (1999).

The seminal case in the area of the necessity for appointment of experts for an indigent defendant is Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct.1087, 84 L.Ed.2d 53 (1985). In Ake, the defendant sought the appointment of a psychiatrist to assist on the issue of the defendant's sanity at the time of the offense. In considering the defendant's request, the Ake Court explained that due process requires access to raw materials integral to the building of an effective defense. Even so, it went on to say that a state need not "purchase for the indigent defendant all the assistance that his wealthier counterpart might buy," but rather must provide him the basic tools to present his defense within our adversary system. Id. 470 U.S. 77, 105 S.Ct. 1093. To decide whether the appointment of a particular expert is a "basic tool" within the purview of the Ake instruction in a given case, a reviewing court must consider three factors. Id.; Norton v. State, 930 S.W.2d 101, 105 (Tex. App.-Amarillo 1996, pet. ref'd). Those factors are: 1) the private interest that would 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. Ake, 470 U.S. at 77, 105 S.Ct. 1093; Norton, 930 S.W.2d at 105. Moreover, the reviewing court must bear in mind that the government is only required to provide indigent defendants with expert assistance in cases in which the defendant has made a sufficient threshold showing. To be sufficient, that threshold showing must establish that not only does there exist a reasonable probability that an expert would be of assistance, but also that the denial of the requested expert assistance would result in a fundamentally unfair trial. Norton, 930 S.W.2d at 106-07.

In this case, the defense was given money for both a crime scene expert and a psychiatrist. The psychiatrist was called to testify for appellant. In his written motion, appellant claimed he needed the confession expert because of appellant's background, his health disorders, and mental illness. However, he did not support these allegations by pertinent evidence.

This record does not show that the trial court's refusal to appoint the requested confession specialist resulted in a fundamentally unfair trial. This is particularly true in view of the trial court's appointment of a psychiatrist and a crime scene expert. Thus, the trial court did not abuse its discretion in refusing to appoint a confession expert. That being so, its refusal to do so did not deprive appellant of any of his constitutional or statutory rights, nor did it deprive him of the effective assistance of counsel. Appellant's second through fifth issues are overruled.

In summary, all of appellant's issues are overruled and the judgment of the trial court is affirmed.

John T. Boyd

Senior Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. 75.002(a)(1) (Vernon Supp. 2004).