Tyshun Hyder v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00182-CR

______________________________

TYSHUN L. HYDER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 34165-B

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

A Gregg County jury found Tyshun L. Hyder guilty of aggravated robbery using a deadly

weapon (1) (cause number 06-06-00182-CR) and assessed an enhanced punishment of life

imprisonment. See Tex. Penal Code Ann. § 29.03 (a)(2) (Vernon 2003); see also Tex. Penal

Code Ann. § 12.42 (c)(1) (Vernon Supp. 2006).

I. FACTUAL AND PROCEDURAL HISTORY

On December 19, 2005, in less than half an hour, a then-unidentified person committed two

aggravated robberies in Longview. The first of these two robberies occurred at a Family Dollar

store; the second took place at an insurance agency some blocks down the same street. Around

9:20 a.m., a man in a dark-colored hooded jacket entered the Family Dollar store, approached the

counter, acting anxious, and pretended his mission was to purchase a package of gum. After the

cashier, Lacee Robbins, had some trouble getting the gum to scan immediately, she opened the cash

drawer to put the man's dollar in the register's till; the hooded man then pulled a gun, closely aimed

it at Robbins's head, and demanded that she place the money in a bag. The man then left the store,

having taken a little over $100.00.

Police discovered a jacket on the road near the second robbery and that jacket was consistent

with eyewitness descriptions of the suspect's attire at both robberies. The jacket was compared to

the one worn by the suspect in the surveillance tape of the Family Dollar store robbery, and

investigators concluded that the jacket found on the road was, in fact, the jacket worn during the

commission of the robberies. Investigators also discovered that there were hairs on the jacket and

sent the jacket to the Texas Department of Public Safety (DPS) Crime Laboratory for DNA testing.

Hyder became a suspect in the robberies at the beginning of February 2006, when Longview

Police Department Sergeant Darin Lair received an anonymous tip on the matter. Robbins was able

to identify Hyder from a photographic line-up (2) as being the man who had robbed the Family Dollar

store on December 19, 2005.

On March 30, 2006, initial analysis on the hair and skin cells found on the jacket yielded a

DNA profile. (3) In April 2006, an initial search of the Combined DNA Index System (CODIS) yielded

a match with Hyder's DNA profile, which had been on file with the DPS from prior offenses. The

DPS laboratory requested samples from any person suspected in the robberies for comparison with

the DNA profile extracted from the jacket. To confirm the match between the DNA profile taken

from the jacket and Hyder's DNA profile, investigators submitted a sample of Hyder's blood on

July 26, 2006. The DPS laboratory comparison indicated that Hyder could not be excluded as the

contributor of the major component in the profile developed from the biological samples taken from

the jacket. Going further, Beasley testified that to a reasonable degree of scientific certainty, Hyder

was the source of the major component of the DNA profile developed from samples taken from the

jacket. (4)

II. TRIAL COURT'S DENIAL OF MOTION FOR APPOINTMENT OF DNA EXPERT

Three days prior to trial, Hyder moved for appointment of a DNA expert. In his motion,

Hyder requested that the court authorize funds to pay for the expert pursuant to Tex. Code Crim.

Proc. Ann. art. 26.05 (Vernon Supp. 2006), and cited McBride v. State , 838 S.W.2d 248 (Tex.

Crim. App. 1992), in which the Texas Court of Criminal Appeals addressed the due-process

considerations involved in providing access to expert assistance. (5) At the hearing on the motion

(conducted on the day trial was scheduled to begin), Hyder further explained that he requested an

expert for assistance in understanding the report already obtained from the DPS laboratory and for

independent testing as well. The trial court denied Hyder's motion. (6) Hyder urged his request a

second time in a motion to reconsider which advanced the same position and information as his

original motion; the trial court refused to reconsider and again denied the request. Since Hyder

sought appointment of an expert in terms of both statutory entitlement and by reference to

constitutional considerations, we will address each basis in turn.

A. Statutory Basis for Appointment

The appointment of experts in a noncapital case is governed in part by Article 26.05: "A

counsel in a noncapital case . . . shall be reimbursed for reasonable and necessary expenses,

including expenses for investigation and for mental health and other experts." Tex. Code Crim.

Proc. Ann. art. 26.05(d). The appointment of an expert witness under Article 26.05 rests within the

sound discretion of the trial court. De Freece v. State , 848 S.W.2d 150 , 154 n.3 (Tex. Crim. App.

1993); Stoker v. State , 788 S.W.2d 1, 16 (Tex. Crim. App. 1989); Moore v. State , 836 S.W.2d 255,

260 (Tex. App.--Texarkana 1992, pet. ref'd).

In determining whether the trial court abused its discretion by denying appointment of an

expert, the Texas Court of Criminal Appeals has considered whether the defendant presented

evidence supporting the motion for appointment, whether defense counsel ascertained the expert's

availability to testify, and whether defense counsel presented evidence as to the costs involved in

procuring the expert's services. See Stoker , 788 S.W.2d at 17 . Also significant in Stoker was the

timing of the motion. Although defense counsel in Stoker indicated that he had not anticipated the

introduction of extraneous offenses for which he sought appointment of a psychology expert, the

Stoker court pointed out that counsel "was aware of the existence of these extraneous offenses since

they were pending by indictment in the same court" as the case at issue then. Id. The court went on

to consider the fact that despite this awareness, defense counsel did not file the motion for

appointment until after voir dire:

As we stated in Hammett , "[n]ot only was the late hour in which appellant filed his

motion calculated to be disruptive of the trial, the very nature of his motion

compounded the problem. To have granted appellant's motion as it was presented

and at the time it was filed would have constituted a real threat to the court's control

of the trial. The granting of appellant's motion under the circumstances here

presented would have allowed appellant to manipulate his asserted rights in such a

manner as to obstruct the orderly administration of justice."

Id. (quoting Hammett v. State , 578 S.W.2d 699, 707 (Tex. Crim. App. 1979)).

Hyder's motion to appoint provides no affidavit or evidence to explain why or how an expert

would assist in his defense. He generally asserted his right to independent examination of the

evidence and stated that the cost of the named expert's assistance was reasonable and necessary to

his defense. So, like the motion in Stoker , Hyder's motion failed to demonstrate a specific need for

appointment of a DNA expert.

Also in keeping with the Stoker guidelines, we consider the timing of the motion to appoint.

Here, Hyder filed his motion only three days before trial. We look to the record to determine

possible dates at which Hyder's defense counsel would have learned that the State would present

DNA evidence. We first note that the trial court appointed defense counsel on March 31, 2006. That

same day, the State tendered several documents to defense counsel. Included in this discovery

disclosure were offense reports clearly indicating that the jacket had been submitted for DNA testing.

Detective David Cheatham of the Longview Police Department noted in his report that hairs were

discovered on the jacket located on the road near the second robbery and visually identified as the

jacket worn during the Family Dollar store robbery. Detective Cheatham noted that Detective Kirk

Haddix forwarded the jacket to the DPS laboratory. Detective Haddix's report specifically stated that

the jacket was submitted for DNA testing to the DPS laboratory in Garland on December 20, 2005.

On July 26, 2006, the State faxed defense counsel a copy of the search warrant to retrieve a

sample of Hyder's blood for confirmation of the earlier CODIS match indicating Hyder as the

contributor of the DNA profile from the jacket. Included as an attachment was the DPS laboratory

report dated May 4, 2006, and detailing the CODIS match. In addition, on July 26, the State faxed

a notice to defense counsel which added three DNA experts and the nurse who drew Hyder's blood

pursuant to the search warrant to the witness list. The State updated defense counsel on August 2,

alerting counsel that testing on Hyder's blood sample had begun and noting that testing should be

complete the week before trial. On August 14, the State sent defense counsel the final DNA report

which confirmed the results obtained from the CODIS search.

Defense counsel measures the time in which he had to file the motion as measured from this

last (August 14) date. We cannot agree that the day defense counsel learned the results of the DNA

comparison is the relevant date to imply when examining the timing of the motion. While defense

counsel did not know the results of the final DNA comparison earlier than August 14, he was aware

well before the filing of the motion to appoint an expert that DNA testing has been ordered, that the

State intended to present DNA evidence, and that there had already been a match through CODIS

between the DNA profile taken from the jacket and Hyder's stored DNA profile. Because the late

hour at which the motion to appoint an expert was filed and due to the absence of any evidence

produced by Hyder in support of that motion, we conclude that the trial court did not abuse its

discretion when it refused to appoint a DNA expert pursuant to Article 26.05.

B. Constitutional Basis for Appointment

The United States Supreme Court explained that due process requires access to the raw

materials integral to the building of an effective defense and that under certain circumstances, those

raw materials include an appointed expert. See Ake v. Oklahoma , 470 U.S. 68, 77 (1985). The Ake

decision set forth three considerations relevant to determining whether an indigent defendant is

constitutionally entitled to the requested appointed expert: the defendant's interest, the State's

interest, and "the probable value of the . . . procedural safeguards that are sought, and the risk of the

erroneous deprivation of the affected interest if those safeguards are not provided." Id. at 77 ; (7)

Jackson v. State , 992 S.W.2d 469, 472-73 (Tex. Crim. App. 1999).

It is the third consideration that is the focus of most cases addressing the appointment of an

expert in the due-process context. See Rey , 897 S.W.2d at 337-38. (8) The Ake Court explained that

the risk of erroneous deprivation is too high when it is clear that the issue on which the expert is

sought is likely to be a significant factor at trial. Ake , 470 U.S. at 83 . Therefore, an indigent

defendant has the right to have an expert appointed upon a preliminary showing that the matters that

the expert will address will likely be significant factors at trial. See Rey , 897 S.W.3d at 339 (citing

Ake , 470 U.S. at 74 ).

Relying on Ake , the Texas Court of Criminal Appeals has held that the appointment of an

expert is required when a defendant makes "a preliminary showing of a significant issue of fact on

which the State would present expert testimony, and which the knowledge of a lay jury would not

be expected to encompass." Jackson , 992 S.W.2d at 474 . The burden is on the defendant to make

a sufficient threshold showing of this particularized need for the expert's assistance. See Griffith ,

983 S.W.2d at 286-87; Rey , 897 S.W.2d at 339. In order to carry this burden, a defendant must offer

more "than undeveloped assertions that the requested assistance would be beneficial." Williams v.

State , 958 S.W.2d 186, 192 (Tex. Crim. App. 1997); Rey , 897 S.W.2d at 339 (citing Caldwell v.

Mississippi , 472 U.S. 320, 323-24, n.1 (1985)); Smith v. State , 131 S.W.3d 928, 930 (Tex.

App.--Eastland 2004, pet. ref'd). A defendant must also show more than the mere conclusions of

defense counsel. Norton v. State , 930 S.W.2d 101, 111 (Tex. App.--Amarillo 1996, pet. ref'd). The

defendant must show 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. Davis v.

State , 905 S.W.2d 655, 659 (Tex. App.--Texarkana 1995, pet. ref'd) (citing Moore v. Kemp , 809

F.2d 702, 712 (11th Cir. 1987)).

As the Rey opinion pointed out, the cases holding that a defendant failed to make a sufficient

preliminary showing of the need for an expert are typically cases in which a defendant failed to

support his motion with affidavits or other evidence supporting his defensive theory, (9) explaining why

the expert's assistance would be useful in establishing that theory, or showing that there was reason

to question the State's expert and proof. Rey , 897 S.W.2d at 341. A defendant meets this threshold

burden by making his defensive theory clear to the trial court and supporting it with factual

allegations or evidence that expert testimony would support his defensive theory. See id. We

analyze whether a defendant made a sufficient threshold showing by examining the facts and

arguments before the trial court at the time of the defendant's motion. Id. at 342 n.9.

Here, Hyder did not provide any evidence to support his defensive theory or any evidence

explaining the usefulness of expert assistance on the matter. He did not submit any affidavits or

evidence to support the motion and also made no such showing at the hearing on the motion. As the

trial progressed, we see that the issue of identity was central to Hyder's defense. And, although the

State had evidence that victims identified Hyder in a photographic line-up and their in-court

testimony identified Hyder as the individual who committed the robberies, the State did make the

DNA matches a significant portion of its case. During cross-examination of the State's DNA experts,

Hyder's defensive theory became a bit more clear. Through his mother's testimony, Hyder asserted

that his car had been broken into and several items, possibly including his jacket, had been stolen.

It appears that Hyder wanted to utilize expert assistance to support his theory that someone else wore

his jacket during the commission of the robberies. Further, in his brief to this Court, Hyder more

specifically explains how an expert may have been beneficial to his defensive theory: the "requested

expert would have assisted [defense counsel] in cross examination of the State's expert about the

presence of other genetic profiles on the jacket."

However, no such showing was made by Hyder at the hearing on the motion for appointment

of a DNA expert. We, therefore, cannot say that the trial court erred by determining that Hyder

failed to make a sufficient preliminary showing of the need for a DNA expert's assistance such that

the trial court would have been required to appoint one under Ake . We reiterate that we are

constrained to examine whether Hyder made a sufficient threshold showing by looking at the facts

and evidence presented to the trial court at the time of the motion. See Rey , 897 S.W.2d at 342 n.9.

Based on those facts, the trial court did not err in denying Hyder's motion to appoint an expert.

III. CONCLUSION

Hyder has failed to demonstrate that the trial court abused its discretion by denying his

motion to appoint a DNA expert pursuant to Article 26.05 of the Texas Code of Criminal Procedure

and has failed to show that he was denied due process by the trial court's denial of his motion to

appoint a DNA expert. We overrule Hyder's point of error.

Accordingly, we affirm the trial court's judgment.

Bailey C. Moseley

Justice

Date Submitted: July 17, 2007

Date Decided: August 7, 2007

Do Not Publish

1. In one trial, Hyder was convicted of two offenses of aggravated robbery. Although the

appeals from the convictions were briefed as one and present the same point of error, this appeal

involves only the robbery of the Family Dollar store; the robbery of the insurance agency shortly

thereafter is addressed in companion case Hyder v. State , cause number 06-06-000183-CR.

2. Prior to receiving the tip as to the identity of the suspect, investigators had assembled a

photographic line-up of possible suspects. Hyder was not included in this initial line-up and

witnesses did not identify a suspect from the photographs included.

3. DPS DNA laboratory supervisor, Lorna Beasley, explained that the "major component" is

the main DNA profile and it is stronger in terms of intensity and amount of DNA present. This

major component "was consistent with the single-source profile that we . . . recovered from the blood

specimen from Tyshun Hyder." She added that there was not sufficient information contained in the

minor component to extract an identifiable profile for comparison.

4. More specifically, Beasley testified that the probability of selecting an unrelated person at

random who could be a contributor of the major component of the DNA profile from the jacket is

one in 861.3 quadrillion in the African-American population, to which group Hyder belongs. Early

in the investigation, Hyder mentioned that he does have a twin brother, but conceded that his twin

brother could not have committed these robberies since he was in prison at the time of the offense.

5. McBride also addressed the denial of a motion to appoint a chemist in terms of the right to

inspect evidence and application of Article 39.14 of the Texas Code of Criminal Procedure. 838

S.W.2d at 250 ; see Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon Supp. 2006).

6. The State contends this case is controlled by the reasoning in Wolfe v. State , 120

S.W.3d 368

(Tex. Crim. App. 2003). In Wolfe , the Texas Court of Criminal Appeals dismissed the appeal for

want of jurisdiction because Article 64.05 of the Texas Code of Criminal Procedure governing

appeals in post-conviction proceedings to test DNA did not specifically provide an appeal for the

trial court's denial of the appointment of an independent DNA expert. 120 S.W.3d at 372 ; see Tex.

Code Crim. Proc. Ann. art. 64.05 (Vernon 2006). The instant appeal, however, is not one related

to Chapter 64. Trial courts do not have jurisdiction to order post-conviction DNA testing outside

the provisions of Chapter 64. See State v. Patrick , 86 S.W.3d 592, 594-95 (Tex. Crim. App. 2002);

Booker v. State , 155 S.W.3d 259, 264 (Tex. App.--Dallas 2004, no pet.). Prior to trial, the

appointment of an independent expert for DNA testing is governed by Article 26.05. A denial of a

pretrial motion for a DNA expert, therefore, is an interlocutory order incident to the trial and may

be reviewed in connection with an appeal from the final judgment of conviction. It is this distinction

which distinguishes Wolfe from the instant case. We conclude that we have jurisdiction over this

appeal and can review the trial court's denial of the pretrial motion for appointment of an expert.

7. "While the Ake case dealt with the appointment of a psychiatrist, it is now without question

that Ake requires the appointment of an expert regardless of his field of expertise." Griffith v. State ,

983 S.W.2d 282, 286 (Tex. Crim. App. 1998) (citing Rey v. State , 897 S.W.2d 333, 338 (Tex. Crim.

App. 1995)). As the Texas Court of Criminal Appeals stated:

There is no principled way to distinguish between psychiatric and nonpsychiatric

experts. The question in each case must be not what field of expert knowledge is

involved, but rather how important the scientific issue is in the case, and how much

help a defense expert could have given.

Rey , 897 S.W.2d at 338 .

8. Rey has been questioned in terms of its position on structural error. See Briseno v. Cockrell ,

274 F.3d 204, 211 (5th Cir. 2001).

9. It is because a defendant must reveal some details of his defense in order to be entitled to

appointment of an expert under Ake that the Texas Court of Criminal Appeals has concluded that

a defendant is entitled to an ex parte hearing on a motion to appoint an expert. See Williams , 958

S.W.2d at 191 .