Bobby Jackson Chavez v. The State of Texas--Appeal from 358th District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

BOBBY JACKSON CHAVEZ, )

) No. 08-03-00358-CR

Appellant, )

) Appeal from the

v. )

) 358th District Court

THE STATE OF TEXAS, )

) of Ector County, Texas

Appellee. )

) (TC# D-30,180)

)

O P I N I O N

Appellant Bobby Jackson Chavez appeals his conviction for the offense of evading arrest or detention. A jury found Appellant guilty of the offense and assessed punishment at 2 years= confinement in a state fail facility and imposed a fine of $5,000. In his sole issue, Appellant contends that the trial court=s denial of his motion for an expert witness on eyewitness identification reliability violated his right to due process. We affirm.

On the evening of September 28, 2002, Odessa Police Officer Jerry Jones was dispatched to the 800 block of East 14th Street in Odessa in reference to a call of shots being fired in that area. When Officer Jones arrived, he observed a maroon Explorer parked in the roadway at 1410 Center with its lights on. Officer Jones stopped to investigate whether the vehicle was involved in the shots being fired. Several people were in the street talking to the vehicle occupants. When Officer Jones approached the area and activated the overhead lights and takedown lights on his patrol car, the people in the street scattered.

Officer Jones approached the vehicle head on with his lights facing into the front of the vehicle, and as he exited his patrol car, he was walking in front of the driver=s side of the vehicle. He could see into the front of the vehicle and looked straight at the driver. Officer Jones identified Appellant as the driver. As Officer Jones approached the vehicle, the driver backed up, moved forward, and then sped away down the south alley of the 900 block of East 15th Street. Officer Jones radioed to other patrol units a description of the vehicle and its direction of travel. Within a matter of seconds, Officer Jones learned that the same vehicle had been involved in an accident about two blocks away and that the occupants had fled the scene on foot. He later learned that two people in the other vehicle were injured in the accident and that the maroon Explorer was a stolen vehicle.

Officer Terry Henkell was in the area working as law enforcement for the HUD housing authority on the night of September 28. He heard the radio dispatch about the shots being fired. As he was responding, he heard the broadcast about the accident at 14th and Dixie and that a male in a white t-shirt was seen running away from the scene. Officer Henkell drove to the corner of 14th and Maple and turned off his vehicle. Officer Henkell was about two blocks away from the accident scene. He heard some leaves rustling in a backyard and movement over a steel fence. When Officer Henkell rounded the corner onto Maple, he saw a male in a white t-shirt running north through the front yards of the neighborhood. At trial, Officer Henkell identified Appellant as the man he saw and apprehended. When Officer Jones arrived, he identified Appellant as the driver of the maroon Explorer that had fled.

Officer Jones testified that after Appellant was stopped by Officer Henkell, he observed abrasion marks on the inside of both of Appellant=s forearms and Appellant was complaining of pain to his knees. Officer Jones described the abrasions as rub marks and, in his opinion, he did not think the injuries were consistent with barroom fight injuries. An officer had advised Officer Jones that the air bags had deployed and he believed that Appellant=s injuries were consistent with that occurrence.

The nurse who examined Appellant at the jail testified that Appellant reported being hit with a bat by some guys. Appellant had multiple abrasions and contusions, or scratches and bruises, on his forehead, left shoulder, and chest. Appellant complained-of difficulty walking due to severe pain in his right hip. The nurse knew that Appellant had been beat up, only because that was what he had told her. It was possible that his injuries were consistent with being hit with a bat, but it was also possible that his injuries were consistent with an injury from an air bag.

Dr. Byon Vaughn examined Appellant in the emergency room at the Medical Center Hospital on September 29. Appellant told Dr. Vaughn that he had been assaulted and he complained of pain to his head, left shoulder, right hip, and knee. Appellant was diagnosed with a cerebral concussion, contusions of the shoulder, hip, and knee, and abrasions on his shoulder, hip, and knee. Dr. Vaughn testified that Appellant=s injuries were consistent with what Appellant had told him. However, he also agreed that the injuries could have been sustained in an automobile accident.

In his sole issue, Appellant contends that his federal right to due process was violated by the trial court=s denial of his motion to appoint an expert witness on eyewitness identification. Appellant asserts that the primary issue in the case concerned the identity of the perpetrator of the crime and that no direct evidence linked him to the crime scene except for State=s eyewitness testimony, therefore, fundamental fairness dictates that he have an opportunity to present expert witness on the inherent unreliability of eyewitness identification as part of his defense.

Applicable Law

Due process demands that an indigent defendant be provided with the basic tools to present an adequate defense within our adversarial system of justice. See Ake v. Oklahoma, 470 U.S. 68, 77, 105 S. Ct. 1087, 1093, 84 L. Ed. 2d 53 (1985); Busby v. State, 990 S.W.2d 263, 271 (Tex.Crim.App. 1999); Rey v. State, 897 S.W.2d 333, 337 (Tex.Crim.App. 1995). If an indigent defendant establishes a substantial need for the expert, without which the fundamental fairness of the trial will be called into question, then Ake requires the appointment of an expert regardless of his designated field of expertise. See Rey, 897 S.W.2d at 338. The burden is on the defendant to make a sufficient threshold showing of need for the expert=s assistance. Griffith v. State, 983 S.W.2d 282, 286-87 (Tex.Crim.App. 1998). In so doing, the defendant must make a preliminary showing that the subject of the expert=s testimony is likely to be a significant factor at trial. Taylor v. State, 939 S.W.2d 148, 152 (Tex.Crim.App. 1996); Rey, 897 S.W.2d at 339. The trial court must determine Awhether there is a high risk of an inaccurate verdict absent the appointment of the requested expert.@ Busby, 990 S.W.2d at 271. We review the trial court=s denial of a motion to appoint an expert witness to assist the defense under an abuse of discretion standard. See Griffith, 983 S.W.2d at 287. The reasonableness of the trial court=s decision is reviewed as of the time it was made. See Rey, 897 S.W.2d at 342 n.9.

Preservation of Error

On April 7, 2003, Appellant filed his motion to appoint an expert witness on eyewitness identification. On April 22, 2003, the trial court held a hearing on Appellant=s pretrial motion. Appellant argued that based on the State=s reliance on one eyewitness to tie him to the crime, he had sufficiently shown the need for an expert witness on the inherent unreliability of eyewitness identification. Appellant presented information obtained from the internet about the Eyewitness Identification Research Laboratory at the University of Texas at El Paso, the curriculum vitae of Dr. Roy Malpass, the laboratory=s director, and a article (www.law.com) on the use of identification experts in New York. Appellant requested that the court appoint someone from the laboratory in El Paso. The State asked for time to look over the information Appellant had provided to the trial court. The trial court agreed to the State=s request and recessed the hearing on the matter. No express ruling on Appellant=s motion appears in the record.

To preserve a complaint for our review, a party must obtain a ruling or object to the trial court=s refusal to rule. See Tex.R.App.P. 33.1(a). Appellant asserts that the trial court=s ruling denying his motion is implied in the record. Specifically, Appellant directs our attention to his examination of Officer Vic Sikes regarding the photo line-up procedures of the Odessa Police Department. Appellant attempted to question Officer Sikes about his knowledge of a publication from the Eyewitness Identification Research Laboratory and the curriculum vitae of a purported expert. In voir dire examination, Officer Sikes testified that he had never seen the publication before. In open court, Officer Sikes was then asked to acknowledge that the affiliated individual was an expert based on the curriculum vitae, but Officer Sikes testified that he did not know the person, however, he stated that the document indicated that the individual had conducted some research. The trial court sustained the State=s objection to any further questioning on hearsay grounds. We must reluctantly conclude that this exchange sufficiently reflects an adverse ruling on Appellant=s motion to appoint an expert witness. Appellant has failed to preserve his complaint for review. Issue One is therefore overruled.

We affirm the trial court=s judgment.

May 5, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)