Eric Anthony Smith v. State of Texas--Appeal from 350th District Court of Taylor County

Opinion filed September 11, 2008

In The

Eleventh Court of Appeals

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 No. 11-08-00093-CR

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  ERIC ANTHONY SMITH, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 350th District Court

Taylor County, Texas

Trial Court Cause No. 8183D

M E M O R A N D U M O P I N I O N

The trial court convicted Eric Anthony Smith, upon his plea of guilty, of delivery of cocaine. Appellant entered a plea of true to the enhancement allegation, and the trial court assessed punishment pursuant to the plea bargain agreement at confinement for fourteen years. We affirm.

In his sole issue on appeal, appellant contends that the trial court erred by denying his pretrial motion for quantitative analysis. In this motion, appellant sought the appointment of an independent chemist to test the substance that he sold. At the hearing on his motion, appellant expressed his concern with Asome problems in the past with some of the labs in the state@ where testing was done Aat the behest of the State.@ Appellant argues on appeal that the trial court abused its discretion in denying the motion resulting in the violation of his due process rights.

When an indigent defendant makes a threshold showing that expert assistance would likely be a significant factor at trial, he is entitled to the appointment of an expert. Ake v. Oklahoma, 470 U.S. 68, 82- 83, 86 (1985); Griffith v. State, 983 S.W.2d 282, 286-87 (Tex. Crim. App. 1998); Rey v. State, 897 S.W.2d 333, 339 (Tex. Crim. App. 1995); Smith v. State, 131 S.W.3d 928, 930 (Tex. App.CEastland 2004, pet. ref=d). The trial court=s ruling is reviewed for abuse of discretion. Griffith, 983 S.W.2d at 287; Smith, 131 S.W.3d at 930. The purpose is to ensure that the indigent defendant has access to a competent expert to assist in the evaluation of his defense. Ake, 470 U.S. at 77; Griffith, 983 S.W.2d at 286; Rey, 897 S.W.2d at 339. The type of expert and the nature and complexity of the field of specialty must be considered in deciding if an expert will be helpful or a significant factor at trial. Griffith, 983 S.W.2d at 287; Rey, 897 S.W.2d at 338. This does not mean that a defendant is entitled to an expert of his Apersonal liking@ or that he has the right to choose which expert is appointed. Griffith, 983 S.W.2d at 286.

The State argues that appellant failed to make a threshold showing at the hearing. We agree. Appellant=s request for an expert was based on his assertion that Asome@ labs had had Asome@ problems Ain the past.@ The trial court noted in its ruling that there was no showing of a Aparticularized need or any special reason@ for independent scientific testing of the substance or that the result of the scientific test would change based on who performed the test. Appellant did not establish that an independent expert would be a significant factor at trial. The trial court did not abuse its discretion. The issue is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

September 11, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.